Employment Law Update - Covid-19 - Furlough Leave – further details 

The Government has now issued further guidance filling in some of the blanks. Unfortunately, there remain obvious omissions, particularly in relation to holiday. For now, all that can be said for sure is that holiday continues to accrue during Furlough Leave. It is possible that it can be taken without interrupting Furlough Leave and that employers have to top up to normal pay whilst holiday is being taken – but that is speculation. Hopefully, further guidance will come as it would be very helpful.

Some clarifications and expansions: -

• It is possible to re-employ an individual and furlough them if they left after 29th February even if the reason for departure was not redundancy. However, before simply doing so employers should work through the consequences of that action.
• As had previously been understood it is possible for a furloughed worker to undertake work elsewhere – provided of course it is not in breach of the contract with the employer.

Employment Law - Update - Covid-19 - Coronavirus – Holidays

One thing which has left me scratching my head over the last few days – and by the sound of it also a number of clients, colleagues and contacts – is exactly how holiday interacts with Furlough Leave.

Government guidance is frustratingly silent on the topic. Some things are clear, others less so. Here are some thoughts: -

1. Holiday continues to accrue during Furlough Leave – definite!

2. The Government has introduced new regulations allowing for greater carryover of holidays. If you listen to the headlines it may be thought that this only applies to those in the emergency sector who as a result of the crisis are unable to take holidays. However, a reading of the actual regulations shows that this goes a lot further. The provision is that up to 4 weeks holiday can be carried over from the relevant holiday year for up to 2 years if it is ‘not reasonably practicable’ to take the leave as a result of the effects of Coronavirus, including the effects on the worker, the employer or the wider society. It follows that if an employee does not take holiday during Furlough Leave and afterward the work demands are such (hopefully) that the employer is not able to agree to a glut of holiday requests when things return to some sort of normality, the employer can make use of this provision. It wouldn’t be a good idea to refuse all holiday as holidays are regarded as a health and safety provision. However, it would be reasonable to fairly regulate holidays or to deny holiday during a relatively short and particularly busy period even if this meant the employee couldn’t take all his or her holiday during the relevant holiday year.

Furlough Leave: Update – Clarity for those impacted?

On 20th March, in the midst of the coronavirus crisis, the Chancellor announced the Job Retention Scheme. As you will have hopefully read in my previous posts, the Scheme operates in scenarios where an employee’s role is temporarily no longer required due to the impact of the virus. Rather than employees being left out to dry, the government scheme will pay 80% of wage costs up to £2,500 currently, for a 3-month period, but potentially to be extended.

I have previously highlighted the lack of detail surrounding the scheme; however, since then, I have been made aware of the following information. This information is not official and therefore can’t be relied upon, but it is based upon information which I understand was issued to an MP.

In short, it is believed the scheme will operate as follows:

Employment Law - Update - Covid-19 - Furlough Leave detail so much required, but Volunteering Leave now in place

The detail of the Furlough Leave scheme is desperately required. The reality is that many employers are now having to apply furlough leave even though there are only headline details about how it will operate and many questions still to answer.

In the meantime, though the Government has rushed through Emergency Volunteering Leave. A few headlines in relation to it: -

• This applies to most employers but not to those with a headcount of less than 10.

• The right will be to unpaid leave – but terms and conditions save relating to pay will continue.

• The person will be acting as an Emergency Volunteer in the health or social care sector and a certificate will be issued by the user of the volunteer which will be known as an Emergency Volunteering Certificate.

• This will provide for a period of work of either 2, 3 or 4 consecutive weeks beginning and ending within a set 16-week block.

The Coronavirus Crisis and the Impact on Landlords and Tenants

With the coronavirus crisis escalating each day, many tenants - both individuals and businesses - will face the prospect of being unable to keep up with rental payments. Indeed, with the announcement on Monday evening that UK is to enter a period of ‘lockdown’ lasting at least three weeks, many tenants may find themselves without an income, or see it significantly reduced. On the flipside, understandably, landlords will be concerned that their rental income may come to an abrupt halt.

As announced by the Ministry of Housing, Communities and Local Government, the Coronavirus Bill 2019-21 significantly changes the relationship between landlords and tenants throughout the duration of the crisis and, potentially beyond. The legislation provides additional protections for residential and business tenants. The Bill will have the following impact:

A message from the Construction Unit, to our clients past, present and future

Like you all, we are working under very different conditions. Sean and Jan are used to working from home so the transition to home working has been straightforward. The only change is that callers may hear a dog barking in the background; we are working on some training on that issue! Our first concern is for people’s physical and mental well-being, but we know some employers, contractors and sub-contractors are worried about paying and getting paid on time.

We are happy to discuss options with you from the legal to the practical. There is no charge for an initial phone discussion, and we are open to no win no fee arrangements on suitable cases. Our debt recovery department works on a percentage of fee recovered; that might be of interest to some.

Employment Law - Update - Covid-19 - Preparing to furlough!

Matters are moving so rapidly. As I put this note together the construction industry is coming under massive pressure to stop working and it is possible that by the time you read this it will have been told to stop (it is already the case in Scotland). This will make furlough leave crucial n the construction sector, but it is becoming increasingly important elsewhere too.

The Government has massive pressure on it, but it would be extremely helpful to know the details surrounding the scheme rather than just the headlines.

The Government is working very hard to get the portal through which one can reclaim through HMRC up and running and will reimburse claims going back through the month of March.

Employment Law - Update - Covid-19 - Where are we now?

Confused after last night’s announcement? From an employment perspective, the big question is whether people are allowed to attend their workplaces if the work cannot be done from home. There was confusion about whether one could only attend a workplace if it was an essential service or if it was absolutely necessary to go to work in order to carry out the work function. It appears the answer is the latter.

The Government initially said, “Travelling to and from work [is permitted] but only where it is absolutely necessary and cannot be done from home”. This wasn’t at all clear. It then published guidance saying “travelling to and from work [is permitted] but only where this absolutely cannot be done from home”.

Subsequently, Andy Burnham tweeted that he had clarification from the Government and that was to the effect that people “CAN leave home to work as long as they fully observe the 2 metre distance rule”. On that basis anyone can go to work provided the work cannot be done from home.

For employers, maximum flexibility is important e.g. avoid commute times if public transport is required.

Employment Law - Update - Covid-19 - Furlough Leave

Prior to Friday did you know the word ‘Furlough’? I must confess that I have been an employment lawyer for over 30 years, and it wasn’t a word that I was familiar with. As you will undoubtedly have heard, the Government has introduced a scheme whereby if an employee is laid off i.e. kept on the book but not given work, it will pay 80% of wage costs up to £2,500 currently for a 3-month period, but potentially to be extended. So far those are the headlines, the detail isn’t there as yet. This will be relevant to an awful lot of employers in the private sector and the detail will be much needed. For now, the following may assist: -

It is not entirely clear, but the payment would appear to be a maximum payment of £2,500 per month, so this would mean an employee normally paid just over £3,120 per month would get paid 80% of full pay. An employee who earned more than that would get a capped amount of £2,500.

Employment Law - Coronavirus Update

Nigel Tillott Head of Davies and Partners Employment Law Department on the latest Coronavirus Update:

"I hope that you are all safe and well. Matters seem to be moving very rapidly now. Yesterday there was an announcement about restrictions on the use of the Employment Tribunal system. Today there has been an announcement that there will be no hearings involving personal attendance from Monday. For now, in relation to those already listed there will be a telephone discussion to work out the best way forward.

Coronavirus - Employment and Regulatory Law Changes

With the advent of Coronavirus, the employment and regulatory law situation is changing constantly.

There have been so many announcements, but amongst the less-heralded yesterday was a statement that the changes to IR35 will be postponed for a year until April 2021. This will be a relief for many medium sized and larger businesses who engage self-employed contractors through the contractor’s service company as well as to contractors themselves. Medium and large sized businesses would have taken responsibility from this April for tax and National Insurance contributions which HMRC assessed as being due on the basis that the reality of the relationship was one of employment. The change will also remove one impediment for those working through service companies to gaining contracts with businesses – albeit that many larger businesses had already decided no longer to engage with personal service companies.

Wife awarded £400k for sacrificing her Solicitor career

A recent decision in RC v JC, a wife was awarded £400,000 in compensation for sacrificing her legal career to care for the children. This was awarded on top of an equal share of the family’s wealth after her divorce.

Mr. Justice Moor who delivered the judgment said that there have been ‘relationship-generated disadvantage’ to justify awarding the wife compensation as the husband was still able to enjoy a ‘stellar’ career.

Whilst there is some concern that this landmark case would open the floodgates to spouses seeking compensation in similar situations Mr Justice Moor stressed that his judgment should not be treated as a ‘green light’ for other spouses to make similar claims. The judgment affirms that in truly ‘exceptional circumstances’ the principle of compensation still exists in family law, and rightly so.

IR35 SEMINAR –What you need to know about the April changes

When: 26 February 2020 from 10.30am – 12.30pm followed by light buffet lunch

Where: Davies and Partners Solicitors, Rowan House, Barnett Way, Barnwood, Gloucester, GL4 3RT

Why: On 6th April 2020 significant changes are being made to IR35 in the private sector. For many years HMRC has been concerned that contractors have been able to use limited companies as a way of disguising what is, in reality, an employment relationship and thereby saving tax. From 6th April the user of the contractor’s services will often find itself liable for tax and National Insurance contributions on the payments.

BREXIT: 11pm on 31 January 2020- some thoughts

Here in the construction unit, we have been pondering how to mark Brexit day. As lawyers, we are encouraged to consider mediation as a way of resolving disputes cheaply (relatively) and quickly. We know though that despite the court liking for mediation, there are some disputes that are simply not suitable for mediation. Brexit differences seem to fall into that category; discussion of Brexit rarely results in a change of position or a meeting of minds, rather a retreat to the trenches.

2019 Gloucester 10k Success - Dates for 2020 Race Announced

Davies and Partners Solicitors would like to say a massive thank you to all those who helped make the original Gloucester 10k a massive success in 2019.

This was the 6th running of the race which was established by Davies and Partners as a community event after the catastrophic failure of a commercial event that preceded it and which caused traffic gridlock around Gloucester.

As a community event there have been massive contributions from the Gloucester community and also those further afield and we have been able to give all proceeds back to the community.

Davies and Partners Start 2020 with a Trio of Senior Promotions

Davies and Partners Solicitors has begun 2020 with the promotion of three of its senior solicitors, Caroline Davies, Kerry Raymond and Kirsten Compton, to the position of Legal Directors.

Equal pay

A lot of publicity has been given to the Employment Tribunal decision in the claim by Samira Ahmed against the BBC. For those who have somehow missed the detail, she used the equal pay legislation to claim that she was discriminated against on the grounds of her gender when paid £440 per episode of Newswatch when Jeremy Vine was paid £3,000 per episode in relation to presenting Points of View.

The decision in Samira’s favour has been made by an Employment Tribunal and not a Higher Tribunal. As such it is not binding on other Tribunals. As is usually the case the detail of the ruling is more complex than the headlines. In short, it appears that the BBC lost

A New Case on Novation

This is the last Construction Unit news before the Christmas break and we wish you all an enjoyable break, whether or not it is a time of celebration for you.

The legal principle of unjust enrichment relied on by the Claimants in the December 2019 case of Munkenbeck [2019] EWHC 3225 in the Technology and Construction Court is rather esoteric, but this case will be of interest to consultants and contractors with novated appointments and building contracts.

Unjust enrichment involves the unjustly enriched paying the enricher the value of the benefit received. It can be claimed without a contract.
The case is lengthy, so in a nutshell:

Surgical errors in Bariatric surgery

Davies and Partners specialist Medical Negligence team have recently been successful in obtaining 'After the Event Insurance' to investigate claims relating to Bariatric surgery undertaken by Mr James Hopkins at Southmead hospital in Bristol.

What action should a landlord take when a former tenants’ belongings are left at a Landlord's premises?

A common scenario facing many of our clients is where a tenant leaves a property but fails to remove all of their possessions. This puts landlords in a difficult situation particularly in regard to who owns these possessions, and what is the landlord to do with them?

As an important starting point, landlords should be aware that the default position is that possessions left behind at the end of a tenancy continue to belong to the tenant.

Davies and Partners Team Impress at E.G. Carter Annual Quiz

Davies and Partners are proud to have again fielded a team for the well-established annual quiz organised by E.G. Carter in Gloucester. This year the event was raising proceeds for three very worthy charities in the James Hopkins Trust, MIND UK and Crohn’s & Colitis UK.

Adverse possession – is fencing land necessary?

In order to be successful in an adverse possession claim it must be shown that:

1. There has been uninterrupted ‘factual’ possession of the land by the applicant for the ‘requisite period’ (this is usually between 10 and 12 years); and

2. The applicant must show that they intended to possess the land during this period.

One of the most effective ways of demonstrating an intention to possess land is through the erection of fencing. However, as the recent case of Thorpe v Frank and another [2019] EWCA Civ 150 demonstrates, this is not the only method…

The Help to Buy ISA Deadline – What you need to know

 The Help to Buy ISA was introduced in 2015 as a way of assisting first-time buyers with getting onto the property ladder. The Scheme has been hugely popular; assisting around 250,000 new buyers.

Any property purchased with the scheme, is limited in value to £450,000 within London or, £250,000 outside of London. Savings are tax-free with the government topping up any contributions made by 25%, up to a limit of £12,000. So, for every £200 you save, the government will contribute £50; resulting in a maximum potential government contribution of £3,000.

Head of Construction attends the Adjudication Society Annual Conference

Our Head of Construction, Jan Grimshaw, attended the Adjudication Society Annual Conference on 7 November for an update on all matters adjudication, particularly the interplay between enforcement of adjudication decisions and the tactical use of CPR Part 8.

The next day Jan attended the Chancery Lane Project, a climate change conference for lawyers, spending the day discussing and working up ideas for "greening" contracts and workplaces.

Thanks to the Chancery Lane Project for organising this stimulating event. The Chancery Lane Project is inviting lawyers to host their own collaborative environment problem solving event. If you would be interested in attending or co-hosting an event in the Bristol area, please get in touch on jan.grimshaw@daviesandpartners.com.

Future Homes Standards- consultation closing 10 January 2020

Of interest to all involved in constructing houses, the Ministry of Housing, Communities and Local Government consultation ‘The Future Homes Standards’ is the first of two consultations on new standards for housing and is focused on changes to the Building Regulations, Part L (conservation of fuel and power) and Part F (ventilation) for new dwellings.