Category Archive: COVID-19

Managing Unpredictability

For businesses operating in the leisure industry, to say the last 24 months have been turbulent would be an understatement, with Covid-19 and Brexit combining to create significant challenges for operators.

On January 1, 2020, the UK’s departure from the European Union became a reality. Little over two months later, on March 23, the UK went into lockdown as the result of a global pandemic.

These two successive events have really affected the leisure and hospitality industry.

As we move into 2022, the operational difficulties faced by the pandemic are clear. Staffing is sporadic, menus are reduced, outlets are closing, there is a strain covering for absent colleagues and employers need to manage Covid-19 in the workplace and consider how to move forward.

How to keep staff and customers safe?

Whilst it would be hoped workers and customers would take a sensible view if they contract Covid-19, ending free testing and changing statutory sick pay and isolation payments at the same time could create a scenario where individuals, avoid taking tests, don’t communicate a positive test, don’t isolate or unknowingly walk around with the virus.

It is therefore important that employers update risk assessments to reflect the probability that Covid-19 may be coming into the workplace.

Forced vaccinations?

Workers with Covid-19 no longer need to isolate. It may therefore be worth considering a contractual change forcing those with Covid-19 to remain at home, on pay to avoid spreading the virus.

It is important to assess how this will work in practice, for example, how long will the isolation period be, what pay will employees get whilst isolating and how they will evidence having Covid-19?

How to entice applicants to the industry?

As a consequence of Brexit, workers no longer have freedom of movement. Employers need to sponsor individuals to work in the UK who are not settled workers or who do not have some other immigration permission allowing them to work in the UK.

This has naturally had a significant impact on recruitment in the industry and can be seen by the number of unfilled posts. In December 2021, there were 163,000 unfilled posts in the leisure industry, a marked increase from 75,000 unfilled posts in December 2019.

One of our national clients, Motel One, has seen its non-UK national workforce reduce from 60 per cent to 30 per cent. That being said, its chain of hotels is expanding across the globe and while applications are reduced, calibre remains high. So, it may not be all doom and gloom.

So, what can you do?

Consider paying above the National Living Wage to attract applicants. The job site Indeed reported that wages in the leisure industry have increased by 4.6 per cent and employers need to remain competitive.

Also, engage workers on a guaranteed hours contract, with an option for overtime rather than a casual worker contract. Whilst the flexibility of casual arrangements can be beneficial, the certainty of hours provides security which is attractive to all in uncertain times.

What if I cannot provide work for the full workforce?

Unfortunately, in the last 24 months, restructures and redundancies have been commonplace. A restructure is not a temporary measure, it imposes a permanent change and so you may want to consider other avenues first. Check if your contracts permit lay-off or as an alternative staff may be amenable to a temporary change to their contract if it protects the job role longer term.

If redundancies do become necessary ensure that you follow a fair and transparent process and be mindful that 20 or more dismissals from the same establishment within a 90-day period will trigger collective consultation obligations.

Article from our North East Leisure Supplement 2022, produced in conjunction with Sanderson Weatherall.

Angela Carver Associate in Employment at Sintonsangela.carver@sintons.co.uk 0r 0191 226 7824.

Ladhar Group acquisition paves way for sector resurgence

Despite the hugely difficult conditions for leisure operators, we have continued to see ambition and investment in preparation for the recovery and future prosperity of the industry.

While some have been forced to scale back, and others have sadly ceased trading altogether, others have weathered the storm as they look to emerge stronger from the other side.

Operators across the North East and beyond have taken the opportunity to invest in their premises, diversify their offering and sometimes add new properties to their portfolio. For tenants, landlord incentives have enticed them to move into buildings which have lost their occupiers during the pandemic, helping to revive town and city centres in the process.

But for some operators, their confidence in the future of their operation and the wider sector has seen major movement, huge investment and significant ambition.

One of the biggest leisure deals in the North East scene in recent years has been the acquisition of the Sir John Fitzgerald group by the Ladhar Group – both family-owned, longstanding operators in the region’s leisure economy, with Sir John Fitzgerald dating from the 1850s.

The deal – named Property Deal of the Year at the North East Property Awards 2021 – comprised the purchase of 16 leisure businesses and their associated properties, and retains ownership of a famous North East brand within the region.

The transaction was completed by Sintons, as the longstanding advisor to Ladhar Group, and was completed during a lockdown period with all parties working remotely – quite a feat to achieve, and certainly a deal like no other I have worked on, but a fantastic outcome for both businesses and the region.

The Ladhar Group have long been a hugely ambitious leisure business in the region, with an array of highly popular venues in central Newcastle which continue to see investment to ensure their offering is at the top of their game, and ongoing plans for the redevelopment of other areas of the city.

Their move to acquire another leisure business, despite the huge challenges that faced the leisure industry at that time, was brave and showed great leadership in the sector for others to follow by giving a very timely endorsement of the strength of the North East’s hospitality sector and the fact it would rise again.

Whether working with premises they already occupy, or looking to acquire new or different ones, the confidence that is returning to the sector – as well as North East town and city centres – makes this a great time to explore options and exercise ambition.

Article from our North East Leisure Supplement 2022, produced in conjunction with Sanderson Weatherall.

Alok Loomba Partner in Real Estate at Sintons – alok.loomba@sintons.co.uk 0191 226 7843.

Covid-19 Bounce Back

When we sat down to discuss our annual North East Leisure Supplement two years ago, we planned to highlight the peaks and troughs experienced by the leisure industry over the previous 12 months, as we had done routinely for years. Neither of us could have imagined, within a few weeks of that meeting, that such monumental and world changing events would have taken place. We decided not to proceed with our publication at that time, as it felt inappropriate to be expressing views on the health of the sector as the whole world, not just the leisure industry, appeared to be looking into the abyss.

Two years on, and with the Coronavirus pandemic, hopefully, becoming a manageable part of our lives, we can start to reflect on what has happened, review the positive lessons we have all learnt, and think more confidently about how the leisure industry is placed to bounce back.

As professionals working in the leisure sector – with over 60 years’ experience between us – we have always been acutely aware of the tenacity and strength of our clients. However, in the face of ever-changing Government regulation, nervous customers and significant staffing issues, it would have been easy for operators to close up shop and ride out the storm on Government loans and furlough pay-outs.

On the contrary, many of our leisure leaders took the opportunity to develop and expand their leisure offerings, investing in the future and positioning themselves to be in the strongest possible position once the restrictions lifted.

Those decisions showed a confidence not only that “this too shall pass”, but gave a huge endorsement in the industry more generally. A major lesson learnt in the pandemic is that we are social beings and need to be in the company of others to maintain good mental health. Where better to seek out those interactions than in the bars and restaurants of our cities and towns? They are an integral part of our lives and of our future.

During the last two years, we have seen some of the most bold, creative and innovative measures taken by operators to keep their businesses trading and their staff in employment.

From restaurant operators developing “cook at home” and delivery services of the highest a la carte food, to bar operators creating exotic cocktail nights to enjoy with friends via Zoom; not to mention the reinvention of much of our street scene into magical outdoor spaces inviting us to linger even on the chilliest of North East winter nights.

These offerings became reminders that there was still pleasure to be taken in the most difficult of times. Many of the changes created through necessity have been so successful they are likely to remain.

Certainly, the continental cafe culture, that was a dream of New Labour at the turn of the century, is here to stay. Officers were always wary of the potential noise and disorder issues that outside drinking may have on a city centre. However, this imposed trial has clearly been successful, with pavement cafes being well managed; they have clearly added a vibrancy to many town and city centres.

The introduction of table service has also been welcomed by customers and operators alike. No more jostling at the bar and spilled drinks as you fight your way back to your table; this offering creates a more relaxed atmosphere with customers staying in venues longer.

Customers’ appreciation of their leisure time has also led to a change in what they want from a night out. The importance of maintaining a work/life balance is reflected in people’s desire to reconnect with friends and family and enjoy leisure at an experiential level. The sector has obliged by offering ‘Instagram-able’ afternoon teas, locally-produced artisan products and competitive socialising experiences aplenty, leading to a general uplift in quality.

Town centre bars and restaurants have seen a surge in popularity as people want to ‘stay local’ and support their local operators. That in turn has seen existing and new operators investing in town centres which will have long-term benefits and is set to continue.

Staycations have also increased interest in the region and tourism is likely to continue to increase as both the pandemic and Brexit see people keen to explore the UK.

As the world starts to unlock – hopefully we have been shut down for the last time – the true impact of the pandemic on the leisure sector will start to show. There will be a long-term impact and not all of it will be positive.

Some parts of the sector – theatres, cinemas and nightclubs – have been hit hard with the tightest regulations applying to them and that will take a long time to repair.

Staffing issues in the hospitality sector are at crisis level with some venues, particularly in the hotel sector, not operating at full capacity simply because they do not have sufficient staff to allow them to operate safely. Time will tell if the issue is purely down to Covid-19 or the fallout of Brexit, but changes need to be made to address the shortfall.

The “work from home” culture is here to stay to some extent, and that will inevitably impact on footfall in city centres. The partnerships between councils, responsible bodies, Business Improvement Districts and operators are more important than ever. Working together to create vibrant city centres with innovative offerings, which will give customers the desire and confidence to return, is key.

Article from our North East Leisure Supplement 2022, produced in conjunction with Sanderson Weatherall.

Sarah Smith, Head of Licensing and Gambling at Sintons – sarah.smith@sintons.co.uk 0191 226 4897.

David Downing, Partner at Sanderson Weatherall – David.Downing@sw.co.uk 0191 268 0151

ICO seeks to review data protection practices of senior civil servants handling sensitive information during the pandemic.

The ICO has called for a government review into the use of private emails and social media channels during the pandemic following concerns detailed in the ICO report “Behind the screens – maintaining government transparency and data security in the age of messaging apps”.

The report follows an investigation into the Department of Health and Social Care (DHSC) during the pandemic and concluded that there were shortcomings in the controls employed by the department in tracking data, within its systems and the increased use of messaging app and technologies like WhatsApp by Ministers and senior government officials. By utilising technologies in this way, these practices risked a data breach where important information was shared without the requisite security embedded in its systems.

The government are not alone here. Across the UK, many businesses and organisations have modified practices and stated polices to respond to business and operational needs during the pandemic. The UK GDPR requires organisations to map its data so that it can put in place organisational and technical measures to ensure information security. This is particularly challenging when it does not have visibility on the ways in which data is shared. This presents a real risk to the transparency and accountability principles underpinning the UK’s data protection legislation.

Businesses, public authorities and government need to recognise that a review of their current practices and calibration to align these with policies will be necessary, to ensure security of information and resilience to cyber threats going forward.

If you have any questions regarding this article, please feel free to contact Louise Weatherhead, a data protection lawyer, by email at Louise.weatherhead@sintons.co.uk, on Twitter @LNWdataprotect, or by telephone on 0191 2263699.

The Commercial Rent (Coronavirus) Act 2022

We have provided a number of articles over recent months about the various temporary measures which were introduced by the Corporate Insolvency and Governance Act 2020, which aimed to help companies affected by the lockdown restrictions during the pandemic.

Most of these measures expired at the end of June and September 2021, except for restrictions on winding up companies, which were extended until 31 March 2022.

Today sees the end of this restriction which will not be extended and see the insolvency regime to return to its pre-pandemic process.

Many clients will be concerned about commercial rent debts which have accrued because of the pandemic.

A new law is now in place to help resolve certain remaining commercial rent debts accrued because of the pandemic.

The ‘Commercial Rent (Coronavirus) Act 2022’ received Royal Assent on the 24 March 2022. This introduces a legally binding arbitration process available for commercial landlords and tenants who have not already reached an agreement to deal with commercial rent debts. Its purposes is to resolve disputes about pandemic related rent debt and help the market return to normal as quickly as possible.

The law applies to commercial rent debts in respect of unpaid rent arrears relating to the ring-fenced period, of business tenants which:

  1. Were mandated to close their premises or business (in whole or in part, including with exceptions such as non-essential shops being allowed to open for collections) under regulations made under the Public Health (Control of Disease) Act 1984 during the COVID-19 pandemic; and
  2. Lease their premises under a business tenancy, as defined by Part II of the Landlord and Tenant Act 1954; that is, a tenancy under which premises are occupied by the tenant for business purposes (or business and other purposes)

The ‘Commercial Rent (Coronavirus) Act’ applies to England and Wales and for those tenancies that fall within scope of the Act and have failed to reach agreement, either party can apply for arbitration, as a backstop after negotiations have failed.

There is a strict window to apply for arbitration which is six months from the date legislation comes into force. Arbitrators may award a reduction of protected rent debt and/or time to pay, with a maximum period to repay of 24 months.  The legal arbitration process will be delivered by arbitrators appointed by approved arbitration bodies from a list of suitable and available arbitrators.

The new legislation provides for:

  1. A claim for a county court judgement or high court judgement, made between 10 November 2021 and commencement of the Bill and including debt within the scope of the Commercial Rent (Coronavirus) Bill, to be eligible for arbitration under the process in the Bill. The Bill will prevent issue of debt claims including ringfenced debt from commencement until the end of the arbitration application period or the arbitration process.
  2. A petition for bankruptcy relating to debts within the scope of the Commercial Rent (Coronavirus) Bill where the statutory demand or claim on which the petition is based was issued between the 10 November 2021 and commencement of the Bill will be effectively void, and any order made relying on such petitions would also be void. The Court will have power to restore the debtor to which the petition or order relates, to the position it was in immediately before the petition was presented. The Bill will prevent a landlord from petitioning for bankruptcy of a business tenant such as a sole trader, based on non-payment of a statutory demand relating to any ringfenced debt served on or after 10 November 2021 and before the Bill comes into force. It will also prevent a petition based on a judgment debt if the claim was issued in this period.

If you have any queries about the rent recoveries, please contact Allison Thompson on 0191 2263719 or in respect to any commercial landlord queries please contact Angus Ashman on 0191 2267878.

Allette v Scarsdale Grange Nursing Home Ltd: Employee’s dismissal for refusing Covid-19 vaccination was fair and interference with Article 8 right to privacy was justified

The claimant, Ms Allette, worked in a nursing home providing care to dementia sufferers.

Whilst not required under statute at the time, the home had implemented vaccinations as a condition of employment for their workforce, to protect its residents, staff and visitors.

The claimant had vocalised her reluctance of the vaccine and refused to comply, initially because she “did not trust the vaccine would be safe [as it had] been rushed through testing.” However, she later changed her reasoning at a disciplinary hearing, held for failing to follow management instruction, to state that the refusal was due to her Rastafarian beliefs.

This latter changed reasoning was not accepted by her employer and as a result, Ms Allette was summarily dismissed. This resulted in claims for wrongful and unfair dismissal.

The decision

The tribunal agreed that the claimant had breached the home’s Disciplinary Policy, which explicitly listed “Gross insubordination or refusal to carry out legitimate instructions” as examples of gross misconduct. Therefore, dismissal without notice was permitted.

Further, whilst the court agreed that the claimant’s Article 8 (1) rights were engaged, this interference was held to be justified under Article 8 (2) as there was a legitimate aim behind the requirements to be vaccinated and the claimant’s dismissal. When this interference was balanced against the interference of the residents who were placed at risk (and who did not have capacity) the rights of the latter prevailed and the claimant’s interference was also held to be proportionate.

The tribunal also accepted that the refusal was due to fears over the vaccine’s safety and not, as later claimed due to her religious beliefs (which, if true, would have been raised from the outset). The employer genuinely believed the claimant was guilty of gross misconduct and no alternative roles were available which did not require vaccination. Therefore, dismissing the claimant was held to be within the reasonable responses of the respondent.

What is to be taken from this decision

This is an employment tribunal decision, which means it does not create a binding precedent which must be followed. Further, the decision rested on the refusal to comply with management instructions according to an existing policy, which means that a different set of facts could result in a different decision – so the decision must be followed with caution.

It is likely that the approach will also differ where vaccinations are a mandatory condition of entering care homes under the new Regulations. Notwithstanding that the government has recently announced potentially revoking the new Regulations for NHS workers (which will inevitably impact on care homes), here employers will likely rely on their legal obligation to comply with the Regulations to ensure a fair dismissal. Instead, the focus may more likely be on the procedure leading up to the dismissal and ensuring it was correct.

The case has, however, shown an insight into the approach the courts will take on Article 8 interference and that refusal due to mere concern about the vaccine may not suffice.

If you would like any further information in relation to this topic, please contact a member of the Employment team.

Covid-19: Statutory Sick Pay Rebate Scheme re-introduced for SME’s

In light of the ongoing Covid-19 pandemic and new Omicron variant, regulations have been temporarily re-introduced to allow businesses to recover Statutory Sick Pay (“SSP”) for Covid-related absences.

The Scheme allows small and medium-sized enterprises (“SMEs”) with less than 250 employees (as at 30th November 2021) to reclaim up to two weeks’ Statutory Sick Pay (“SSP”) for each employee who is absent from work due to testing positive for Covid-19 or having to self-isolate due to possible infection.

The regulations operate in a similar manner to the previous Statutory Sick Pay Rebate Scheme (“SSPRS”) which was put into place between May 2020 to September 2021.

Claims can be made for absences which occurred on or after 21 December 2021 and must be submitted to HMRC by 24 March 2022, which is when the Scheme will also end.

These changes are alongside the Government’s ‘support package’ for businesses affected by the pandemic, including an extension on the time that employees are able to self-certify sickness absence without the need for medical evidence and the announcement to offer £1 billion in support for businesses in the hospitality and leisure sectors.

If you would like any further information in relation to this topic, please contact a member of the Employment team.

Covid-19: Temporary changes to statutory sick pay rules

As of last Friday (17th December 2021), new temporary rules, which provide an extension to self-certification time periods for statutory sick pay (“SSP”) purposes, are in place.

Prior to 17th December 2021, employees were able to self-certify their absence for 7 days and were then required to obtain a GP fit note for absences longer than 7 days for SSP eligibility.

However, the new rules mean employees can now self-certify absences of up to 28 days without obtaining a fit note and only require evidence for absences exceeding this time. This applies to any sickness absence which:

  • began on or after 10th December 2021 and is ongoing; or
  • starts during the period 17th December 2021 to 26th January 2022.

The changes will cease to apply on or after 27th January 2022, at which point the previous rules will return.

This change has been introduced in order to reduce the need for GP appointments and increase their capacity to support the Covid booster vaccination programme.

Whilst the new changes may be open to abuse by employees due to lack of regulation, any issues should be short-lived as the changes currently only apply until 26th January 2022.

The current temporary nature of the changes mean that employers won’t need to amend their sickness absence policies, but if the changes are extended then it might be a consideration for the future. However, employers will need to inform employees of the new rules. Whilst the timing of notification is at the employer’s discretion, it may be wise to do this when an employee reports in sick.

It is also important to note that the changes do not affect any enhanced sick pay entitlement. Here, employers can still follow their own policies in relation to eligibility as this remains unaffected by the changes. However, employers may want to consider aligning their company policies with the changes to show a willingness to support the implementations.

You can find the legislation by clicking here.

If you would like any further information in relation to this topic, please contact a member of the Employment team.

The Commercial Rent (Coronavirus) Bill

On the 9 November 2021 The Commercial Rent (Coronavirus) Bill was published and received its first reading in the House of Commons.

It is the aim of Government that this new legislation will become law by no later than 25 March 2022 and its purpose is to determine the extent, if at all, to which landlords of commercial premises must (a) write off accrued financial arrears payable under the terms of business leases which were caused by the legally enforced closure of business premises during the Coronavirus pandemic, and/or (b) allow extended periods of time for the payment of such arrears.

On the same day as the proposed new legislation was published, the Government also published a new Code of Practice for commercial property relationships to replace the existing code and which, while voluntary, invites commercial landlords and tenants to reach agreement on Covid-19 financial arrears using the same principles as the new legislation will legally impose upon them following 25 March 2022 if agreement cannot be reached.

While the proposed new legislation has yet to complete the full legislative process, it is unlikely its basic terms and principles will be materially altered.

The key points of the new legislation are:

1. The legislation and the protection intended for commercial tenants relates only to a ‘protected rent debt,’ which is defined as being arrears of rent, service charge, insurance, VAT, and interest on late payments which are payable under a lease of business property and which were caused by the legally enforced Covid-19 pandemic public health closures of businesses in England during the period between 2pm on 21 March 2020 and 11.55pm on 18 July 2021. For businesses in Wales the protected period is between 21 March 2020 and 7 August 2021.

2. The legislation allows for arrears of protected rent debt to be (a) written off in whole or in part, (b) for additional time to pay such arrears up to a maximum of 24 months from the date of any decision, and (c) for contractual interest on the late payment of such arrears to be reduced, potentially to 0%. One or more of these remedies can be found to apply to the protected rent debt otherwise payable under a business tenancy.

3. Where landlords and tenants cannot agree upon how protected rent debt will be dealt with, Government approved bodies can be approached by either side to appoint a suitably qualified independent arbitrator to determine what, if any, relief there will be for a tenant with protected rent debts.

4. While the period may be extended by Government, any reference to arbitration of a dispute over a protected rent debt must be made by either the tenant or the landlord within at most 6 months of the new legislation becoming law. Tenants and their advisers will need to carefully monitor this deadline for seeking remedies in relation to protected rent debts.

5. Neither a landlord nor a tenant can refer a dispute over a protected rent debt to arbitration unless they have first given the other side notice of their intention to do so and allowed up to 28 days for the other side to respond.

6. The reference to arbitration must include (i) the referring party’s proposals for how the protected rent debt should be dealt with, and (ii) their accompanying documentary and verified witness evidence to which the other party must respond with their own proposals and evidence within 14 days. The parties then have up to 28 days to put forward any revised proposals and further evidence.

7. While the dispute can be resolved by an arbitrator based on the written evidence and submissions alone, either side can request an oral hearing. Oral hearings will be held in public unless the parties agree that such hearings should be in private and must take place within 14 days of a request by a party for such a hearing.

8. Arbitrators must make their awards as soon as reasonably practicable after receiving each sides’ final proposals and evidence and within no more than 14 days of an oral hearing. The decisions of Arbitrators must be made public.

9. Unless in the circumstances of a particular case the arbitrator directs otherwise, the parties will (a) equally pay the appointed arbitrator’s fees and expenses, which the Government may seek to impose limits upon, and (b) will pay their own professional fees of the arbitration process.

10. An arbitrator can only make an award giving relief to a Tenant if their business is either ‘viable’ or would be viable if one or more of the remedies available was granted. Failed or failing businesses which cannot continue trading irrespective of any assistance they receive with a protected rent debt are not to be assisted by the legislation.

11. Arbitrators when deciding what, if any, remedy to grant to business tenants are required to make their decisions based on 2 principles, (a) that the purpose of any award is to preserve the viability of business tenants or to restore them to viability in so far as that allows a landlord to remain solvent, (that is, so that a landlord is able meet their debts as they become due), and (b) that tenants should pay the sums due under their leases in so far as this is consistent with preserving or restoring their viability.

12. Arbitrators when determining the application of the 2 principles will need to consider and the parties will need to provide evidence of their respective (i) assets and liabilities, (ii) of a tenant’s payment history, (iii) the impact of Covid-19 on the tenant’s business, (iv) any other leased property owned by a landlord, and (v) any other financial information an arbitrator considers relevant.

13. An Arbitrator will disregard anything done by either party to manipulate their financial position to improve their prospects of a favourable award, for example, excessive dividend payments, and will, when determining either a tenant’s viability or a landlord’s solvency, disregard their capacity to borrow money or to restructure their businesses.

14. Landlords cannot seek to legally enforce the payment of protected rent debt through the Court system, commercial rent arrears recovery (‘CRAR’), forfeiture of a lease, by using a tenant’s rent deposit, or through insolvency proceedings during ‘the moratorium period’ which is the later of 6 months from the date the legislation becomes law or the conclusion of the arbitration process in a case.

15. When the legislation becomes law, this protection from the legal enforcement of a protected rent debt will be considered to have applied as from 10 November 2021. Landlords who are using or have used court processes to obtain money judgments on protected rent debts and which remain unpaid will not be able to enforce these following the legislation coming into force and during the moratorium period.

The legislation is intended to create a rapid legal process for determining how the burden of Covid-19 related commercial rent arrears will be divided between landlords and tenants and to require the parties to put forward reasoned and evidenced arguments on what proposals will allow viable businesses to continue but at the same time maintaining landlord solvency.

While such terminology is not used in the legislation, the emphasis in the Code of Practice is on what is ‘affordable’ by both sides with account being taken of a tenant’s anticipated credit/debit balance sheet value, business performance since March 2020, assets, government assistance received (including loans and grants), and dividend payments to shareholders.

Only the determination of several such disputes within what is intended to be a public process is going to provide precise guidance as to how the arbitration process and Arbitrators will treat such protected rent debts and above all how the term ‘viable’ will be interpreted, the legislation and the Code of Practice deliberately declining to define such a term and leaving it to be decided on the facts of each case.

Landlords may seek to argue that provided a tenant’s business will remain solvent, that is, able to pay its debts as they become due, even if a tenant is required to pay all Covid-19 arrears owed, that the tenant’s business is viable and should therefore be forced to pay in full. Landlords will argue that large commercial business tenants with consequently more substantial reserves and resources should be forced by arbitrators to pay protected rent debts in full.

A viable business however is more than one that is basically solvent. A viable business is one that can maintain acceptable net profit margins in its market sector, can provide a competitive rate of return to its stakeholders, that is, employees and investors, can invest and diversify as opportunities arises, and accumulate and maintain reserves.

While the legislation specifically defines solvency it does not define viable, and that expression is likely to be determined to mean more than solvency. While the legislation only requires landlords to be kept solvent in such disputes, arbitrators are required to keep business tenants viable.

The period during which such disputes must be referred to arbitration in the absence of agreement is going to be relatively short and the referring party is going to need to give the other party prior notice and set out its proposals before the dispute can be referred to arbitration.

Landlords and Tenants, and particularly tenants need to be considering their financial evidence with their accounting and legal advisors sooner rather than later and ensuring that they will be able to put forward their reasoned and supported proposals as to why protected rent debts should be waived, paid over a period, and should not bear interest. Such proposals need to be based on financial evidence of what is affordable by them and taking account of how the expression ‘viable’ is likely to be interpreted and applied.

Landlords with real solvency issues will need to evidence these but even where their solvency is not jeopardised, Landlords, particularly those with large retail, hospitality and commercial portfolios, should be scrutinising and requiring disclosure of such tenants’ financial position and emphasising (a) such tenant’s pre-Covid-19 trading and financial histories, that returns to stakeholders cannot be expected to be fully maintained during a time of crisis, and the likely reserves available to such tenants, and (b) the second principle arbitrators must apply that business tenants should be made to pay their historic financial liabilities under leases in so far as this is consistent with maintaining their viability.

Angus Ashman is a Partner in our Dispute Resolution department at Sintons. You can contact Angus at angus.ashman@sintons.co.uk or on 0191 226 7823.

Employment Focus | Post furlough: Options for employers

The end of September saw the Government Coronavirus Job Retention Scheme (“the Scheme”) come to a close. Whilst for some employers things are getting back on track, for others the changes to pre-pandemic levels of activity remain.

In light of this, we take another look at some of the options open to employers where change may be required in order to deal with any ongoing disruption and uncertainty:

Proposing changes to terms and conditions

Employers may seek to vary certain contractual terms such as employees’ hours or pay. When proposing a change to terms and conditions of employment, gaining express consent is the first step. During such discussions, employers should remain transparent with employees about the reality and ongoing impact that the coronavirus pandemic has had on the business, which has initiated the need to propose such changes. If employees are not open and honest, or if they unilaterally impose a change, this may amount to a breach of contract. Such a breach may result in the employee resigning, meaning employers make themselves vulnerable to an unfair dismissal claim (where employees have the requisite two or more years’ service).

If employers cannot gain express consent and employees refuse a change in terms and conditions, the next step would be to terminate and re-engage on the new terms. This action would amount to a dismissal (for the purposes of unfair dismissal) if the employee has two or more years’ service, and so employers would need to follow a fair process and show that the motivation for such changes was reasonable.

The other important consideration here is that where an employer proposes to terminate existing contracts if changes are not accepted, and 20 or more employers are affected, certain collective consultation obligations could be triggered.

Temporary Stoppages

Another option is the adoption of temporary stoppage arrangements to avoid having to implement redundancies. Some examples of things to consider include:

Sabbaticals

Whether this will assist will depend on a number of factors, including employees’ personal and financial circumstances and the overall effect of a sabbatical on job security and future job prospects. However, if it would help it could be worth raising it as a possibility as you never know individual circumstances and wishes. That being said, in the current context a sabbatical for someone who may be in a position to take it may still not be as an attractive option as it might ordinarily be.

Unpaid leave

Arranging for employees to take periods of unpaid leave is another way of stopping or reducing work temporarily. Such leave is likely to be shorter than a sabbatical, but many of the same factors will be relevant. Consent will be required unless an employment contract (or collective agreement) allows an employer to place employees on unpaid leave. Any restrictions in any existing policies could be waived to encourage take-up.

Holidays

Employees could be required to take their contractual or statutory annual holiday allowance at quiet times. This will be subject to giving the required notice under the Working Time Regulations 1998, which is double the length of the holiday to be taken. Employees will still be entitled to their normal remuneration whilst on holiday.

Overtime bans

Where there is no entitlement in the employment contract to overtime work, it is straightforward for employers to cease offering such provision to save outgoings. However, where a contractual right to overtime work is in place, the employer must obtain consent of employees to stop offering overtime.

When considering imposing such a ban, employers need to consider the effect of this implementation on its workforce, for example whether more women than men are dependent on overtime work. Employers should also seek to retain the right to reverse any ban if the need arises to reinstate previous overtime provisions.

Redeployment or secondment

Moving employees around the business is another option if there is a reduced requirement for the particular kind of work they carry out and they would otherwise be redundant. Redeployment, retraining or a secondment placement can be considered where an employer believes an employee is at risk of redundancy.

This is something employers would need to consider as part of a fair redundancy consultation process anyway, so looking at options in order to avoid having to go down that route could be a pre-emptive step. Employers will need to consider whether an employment contract contains a mobility and/or redeployment clause, which enables them to require employees to move around the business. If this is not present, they will need to ensure that express consent is obtained to make these changes.

Lay off and short time working

Lay off

With the Scheme having come to an end, lay off may be an option where there is a contractual right to do so. The contract should make clear that employees will not receive their normal salary during this period. Otherwise, any enforced lay-off will amount to a repudiatory breach of contract entitling an employee to resign and claim constructive dismissal and, where no pay is provided, an unlawful deduction from wages. If there is not a contractual right to lay off, then any proposal to lay off will need to be the subject of consultation with employees and will require their agreement.

Short time working

Another effective way of avoiding redundancies whilst guaranteeing work for employees is short time working, which reduces working hours and usually has a corresponding reduction in pay. Notwithstanding that this means employees earn less remuneration than they have previously received, they are more likely to accept this as an alternative to redundancy and the permanent loss of a job.

To implement short time working, employers must have a contractual right to implement such measures. If this is not the case, they must seek express agreement from employees to agree to the change in terms.

It is important to note that employees may be entitled to certain statutory guarantee payments if they are on lay off or short time working.

General headcount reduction

Employee costs are often the highest single item of expenditure. In times of difficulty it can be hard to resist the temptation to cut headcount as a quick fix to spiralling expenditure and ongoing reductions in demand. However, such short-term measures can affect long-term prosperity. Once lost, a talented, experienced employee can be hard to replace when business improves. In addition, staff morale may be affected and reputation damaged. Other measures that might delay having to take such steps include restricting recruitment, withdrawing job offers, deferring new joiners, and reducing non-permanent staff.

Redundancies

If the above measures cannot be adopted and redundancy is deemed to be necessary, employers must be satisfied that the statutory definition of redundancy applies before consulting with employees and taking action.

Following this, employers need to establish a fair and objective procedure, which includes the selection process where applicable. Where an employee has two or more years’ continuous service, this fair procedure must include consultation with individual employees. Where employees do not have two or more years’ continuous service, employers are required to give employees their specified notice period, which may include payment in lieu of such notice.

Once again, if employers are proposing to make large scale redundancies of 20+ employees within a period of 90 days or less, certain statutory rules in relation to collective consultation will apply. In brief, this will include the requirement to consult with representatives of the affected employees and to notify the Department for Business, Energy and Industrial Strategy.

Whilst there were calls to extend the Scheme, the 30th September deadline remained unaffected and so the above options remain as the alternatives in place for organisations still affected by the impact of the pandemic.

If you would like any further information in relation to the topic covered in this focus, please contact a member of the Employment team.

Temporary Insolvency Measures to end

The Government has announced that the temporary insolvency measures brought in during the Coronavirus Pandemic are to be phased out from 1 October 2021. The temporary insolvency measures, contained in the Corporate Insolvency and Governance Act 2020, are to be replaced by new legislation and new protections for businesses.

Companies in financial distress because of the pandemic have been protected from creditor action since June last year, through temporary measures in the Corporate Insolvency and Governance Act 2020.

This was to ensure that viable businesses affected by the restrictions on trading during the lockdown periods were not then forced into insolvency. Now, as the economy returns to normal trading conditions, the restrictions on creditor actions will be lifted.

However, new measures will be brought in to help smaller companies get back on their feet in an effort to give them more time to trade their way back to financial health before creditors can take action to wind them up.

The new legislation will:

  1. Protect businesses from creditors insisting on repayment of relatively small debts by temporarily raising the current debt threshold for a winding up petition to £10,000 or more.
  2.  Require creditors to seek proposals for payment from a debtor business, giving them 21 days for a response before they can proceed with winding up action.

We will see these measures in force until at least the 31 March 2022.

The protection from eviction for commercial tenants will continue until 31 March 2022. The government then intends to introduce a rent arbitration scheme to deal with rental debts which have arisen as a result of the pandemic. The Government announced:

‘Businesses should pay contractual rents where they are able to do so. However, the existing restrictions will remain on commercial landlords from presenting winding up petitions against limited companies to repay commercial rent arrears built up during the pandemic.

Continuing the restriction on winding up, in respect of commercial rent only, supports the announcement on 16 June that commercial tenants will continue to be protected from eviction until 31 March 2022, whilst the government implements a rent arbitration scheme to deal with commercial rent debts accrued during the pandemic’.

The changes will be brought into force in England by the ‘Corporate Insolvency and Governance Act 2020 (Coronavirus) (Amendment of Schedule 10) Regulations 2021’ (SI 2021/1029), which comes into force on 29 September 2021 (under Corporate Insolvency and Governance Act 2020, ss 20(1)(a), 25(1)). Regulation 2, the main provision in these Regulations, substitutes into the Corporate Insolvency and Governance Act 2020 a new Schedule 10.

If you have any queries about the insolvency measures, please contact Allison Thompson on 0191 2263719 or in respect to any commercial landlord queries, please contact Aimee Hubbard on 0191 2263792.

Temporary medical exemptions for COVID-19 vaccination of people working or deployed in care homes

The Government yesterday announced a temporary exemption to the vaccination of people working in care homes.

The Health and Social Care Act 2008 (Regulated Activities) (Amendment) (Coronavirus) Regulations 2021 (the “Regulations”) were approved by Parliament on 22 July 2021 to make vaccination a condition of entering a CQC-regulated care homes in England, unless those persons are able to evidence a medical exemption to the satisfaction of the registered individual. A 16-week grace period was put in place to ensure staff who haven’t been vaccinated could take up the vaccine before the Regulations come into force on 11 November 2021.

The latest statistics show that around 82% of care home staff are now fully vaccinated but there has been some disquiet about those people who are not able to get the vaccine for medical reasons and clarity has been needed as to how the Government was going to ensure that these persons were not disadvantaged.

On a temporary basis, from yesterday, people working or volunteering in care homes and who have a medical reason why they are unable to have a COVID-19 vaccine, will be able to self-certify that they meet the medical exemption criteria. The Government has created appropriate forms for employers and employees to use. Workers who are exempt will need to sign appropriate forms and give this to their employers as proof of their temporary exemption status. This self-certification process is temporary only and has been introduced for a short period until the new NHS Covid Pass system goes live and once this happens, care home workers will need to apply for a formal medical exemption through that process. The ability to use this self-certification will expire 12 weeks after the Covid Pass system is launched.

Who is exempt

While the list is not exhaustive, the Government statement provides some examples, as follows:

  • those receiving end of life care where vaccination is not in the individual’s interests;
  • those with learning disabilities or autistic individuals, or with a combination of impairments which result in the same distress, who find vaccination and testing distressing because of their condition and cannot be achieved through reasonable adjustments such as provision of an accessible environment;
  • those with medical contraindications to the vaccines, such as, severe allergy to all COVID-19 vaccines or their constituents; or
  • those who have had adverse reactions to the first dose (for example, myocarditis).

It is, therefore, clear that there has to be very pressing reasons and an employee who uses the medical exemption without good reason could be the subject of disciplinary action for misleading their employer. However, the temporary exemption is not law and the legal position remains that an individual must provide satisfactory evidence to their employer. That said, whilst the temporary exemption remains, it is difficult to see how an employer would be disadvantaged if they have used it appropriately.

If you would like to discuss this further, please contact Keith Land Partner and Head of the Employment Team on 0191 226 4892 or keith.land@sintons.co.uk.

Is your workforce vaccinated yet?

The Government has published guidance which applies to regulated activity in a care home (the provision of accommodation together with nursing or personal care). It has been produced to help support the implementation of the Health and Social Care Act 2008 (Regulated Activities) (Amendment) (Coronavirus) Regulations 2021 (‘the Regulations’). The Regulations require registered persons of all Care Quality Commission (CQC) registered care homes (which provide accommodation together with nursing or personal care) to ensure that a person does not enter the indoor premises unless they have been vaccinated. This is subject to certain exemptions. These, together with an overview of the Regulations, are dealt with below but many commentators are concerned that the entire substance of the Regulations could be called into question.

From 11 November 2021, it will become law that anyone entering a care home must have had a complete course of an authorised COVID-19 vaccine. For care home staff, this means you will only be able to continue to work inside a care home if you are vaccinated, unless you are…read more>>

Ask the Experts – a Monthly Q&A with Sintons’ Employment Team – episode 23

Today we recorded our ‘Ask the Experts monthly Q&A with Sintons’ Employment Team – episode 23’ – with Angela Carver and Fiona Campbell. These sessions came about due to the employment team here at Sintons having been inundated with COVID-19 and furlough questions following the introduction of the Coronavirus Job Retention Scheme and the ever changing government guidance.

Our session today covers the following topics:

  • Right to work checks
  • Hybrid working
  • Refusal to return
  • Flexible working

For your convenience we have also recorded this session as both a webinar and podcast, links to both are below.

Employment Focus July 2021- Hybrid Working

With the green light being given by the government to lift all social distancing restrictions from Monday 19 July 2021, many employers are faced with the question of what they should do with their working arrangements going forward. Many employers have, through necessity rather than choice, operated remotely due to the COVID-19 pandemic, but with restrictions finally easing, it may be the time for employers to think about whether they wish to formalise home working or other flexible arrangements, such as a hybrid working model.

In terms of informal steps, employers considering a flexible or hybrid working model, should hold open conversations with its employees around flexible working arrangements. This will allow a discussion to take place about which roles can and cannot be done from home; who may or may not want to work from home; and establish if there are any concerns and how best to handle them. This will ensure that decisions about working from home are fair and comply with equality legislation.

Employers may also hold discussions with any trade union or other employee representatives. If an employer has an existing agreement with a recognised trade union about working from home, for example an agreed homeworking policy, they must consult the trade union if they’re considering any changes.

Once employers have held the appropriate conversations, they may wish to think about whether to formalise home working or other flexible arrangements. Employers may prefer full or partial homeworking, and many may consider reducing their office footprint longer-term. If so, employers are encouraged to review their contracts and policies to reflect the decisions made around flexible working. It is important to note that, whatever the flexible arrangement is, some elements of flexibility should be retained within the contract. For example, requiring employees to attend the workplace for a minimum number of days per week, or for specific reasons, such as for meetings/ appraisals, or disciplinary action etc. Thus, flexibility should be retained within the contract to require the employee to attend the workplace if required by the employer.

If it is decided that the working location will be at ‘home’, then employers should be mindful of employees claiming travel expenses when travelling to the office or other place of work. Moreover, consideration should be given if employees are required to remain within commutable distance. If so, then living within a certain radius should be documented within the contract.

Some employers may feel as though there is still too much uncertainty to confirm working arrangements going forward. This should still be communicated to employees and explained that homeworking will be kept under review. If an employer intends its workforce to return to the office, employees should be made aware of flexible working requests if they wish to work from home on a more permanent basis. These can be considered on a case-by case-basis.

Alongside reviewing employment contracts, employers may wish to review their existing policies and handbooks. Employers should review how their existing sickness, data and IT, disciplinary and grievance and benefit policies are impacted by a shift to homeworking. In relation to any sickness/absence policies, the Health Protection (Coronavirus, Restrictions) (Self-Isolation) (England) Regulations 2020 are currently in force which makes it a criminal offence for an employer to require a self-isolating worker to attend work. Due to a range of circumstances where employees may be absent from work due to the pandemic, it is prudent to amend these policies to allow for potential temporary homeworking/Covid-related absences.

Further, it is sensible to review any data and IT policies which will address data and information security issues related to working remotely. This should also be reviewed alongside any procedures and practices in place where personal data is being processed using remote-working software.

It is important to consider any disciplinary and grievance policies in light of homeworking. This is particularly important in circumstances where employees working from home may no longer be able to attend in-person meetings and normal timelines under these policies and procedures may need to be altered. The policies should be updated to ensure a fair procedure for office workers and homeworkers.

An employer may find it sensible to introduce a homeworking policy which helps employees to understand how people will be set up to work from home, including how the employer will carry out risk assessments; who will provide and pay for equipment; how homeworkers will be managed; how things like expenses, tax and information security are handled; and the employer’s approach to homeworking. Within this policy, it will be important to ensure that employees are aware that working from home means they are still covered by the law on working hours. If a homeworking expenses policy has been previously agreed with a trade union, the employer must agree any changes with the union.

Employers should finally consider the following when shifting towards hybrid working, or other flexible working arrangements.  Importantly, a risk assessment should be carried out in both work settings, at home or in the office. This will ensure that employees are provided with the correct equipment to carry out their role efficiently, such as a phone, laptop etc, and that they have access to the internet. A risk assessment will also cover any health and safety issues which may arise from homeworking, such as ensuring that there is an appropriate work area at home, and that the office is covid-compliant when employees attend. It may be appropriate to require the employee to check whether there are any restrictions within their home insurance, mortgage provider or landlord which would prevent homeworking.

Moreover, employees working at home should not be treated less or more favourably than other employees in the organisation because they work from home. In both work settings, employees should be treated equally and provided with the same opportunities as one another. An employee’s pay and other terms and conditions of their employment should stay the same unless it’s necessary to change them. For example, updating the addresses where the employee will work.

If you have any questions relating to this article or require any advice please contact Fiona Campbell, Associate in the Employment team, on 0191 226 3703 or at fiona.campbell@sintons.co.uk.

Ask the Experts – a Monthly Q&A with Sintons’ Employment Team – episode 22

Today we recorded our ‘Ask the Experts monthly Q&A with Sintons’ Employment Team – episode 22’ – with Keith Land and Catherine Hope. These sessions came about due to the employment team here at Sintons having been inundated with COVID-19 and furlough questions following the introduction of the Coronavirus Job Retention Scheme and the ever changing government guidance.

Our session today covers the following topics:

  • Do you have to disclose the investigation report and witness statements to an employee within a grievance process?
  • Maternity rights/premature birth
  • What are the risks of an employee returning to work for their ex-employer shortly after leaving under a settlement agreement?

For your convenience we have also recorded this session as both a webinar and podcast, links to both are below.

Government extends COVID ban on commercial evictions until March 2022

The government has today announced a further extension on the ban on commercial evictions which were introduced during the early part of the pandemic. The moratorium on commercial evictions were first introduced in April 2020 to help struggling businesses through the pandemic and were due to end on the 30 June 2021

In the wake of the government’s decision to push back “freedom day” from 21 June to 19 July,  Steve Barclay, chief secretary to the treasury, told the House of Commons today that the moratorium will be extended until 25 March 2022.

The measures which the Government have taken, aim to protect debtor companies against creditor action during a period when companies are continuing to be impacted financially by coronavirus. Restrictions on landlords using laws permitting them to recover rent arrears by selling a tenant’s goods will also continue.

This further extension has brought relief to businesses who have been unable to negotiate rent deferrals with landlords and feared being evicted from their properties once the protections were lifted but undoubtedly, this further extension will have significant ramifications for landlords.

Some landlords have raised concerns that the moratorium has allowed some businesses to escape paying rent whilst still making profits.  The government’s extension of the policy follows a call for evidence launched in the spring which looked at how best to replace or end the protections.

While it is currently speculation, whether the Government will also extend the temporary restrictions on winding-up petitions brought in under the Corporate Insolvency and Governance Act 2020 (“CIGA”) in April 2020 and which were also due to end at the end of June,  we think its highly likely the Government will also extend these measures in some way in a further attempt to prevent multiple insolvencies and business collapse and rather, urging creditors to agree repayment instalments with their debtors.

If you have any queries about the temporary insolvency measures, please contact Allison Thompson on 0191 2263719 or in respect to any forfeiture/commercial landlord queries, please contact Aimee Hubbard on 0191 2263792.

Ask the Experts – a Monthly Q&A with Sintons’ Employment Team – episode 21

Today we recorded our ‘Ask the Experts monthly Q&A with Sintons’ Employment Team – episode 21’ – with Keith Land and Catherine Hope. These sessions came about due to the employment team here at Sintons having been inundated with COVID-19 and furlough questions following the introduction of the Coronavirus Job Retention Scheme and the ever changing government guidance.

Our session today covers the following topics:

  • Hybrid working – do we need to change our employment contracts and policies?
  • Should an internal disciplinary process be paused in circumstances where an employee makes a data subject access request?
  • Can we withdraw a notice of redundancy if there is an upturn in work while an employee is working their notice period?

For your convenience we have also recorded this session as both a webinar and podcast, links to both are below.

Roadmap out of lockdown: Employment law considerations

Sintons’ Employment team, in partnership with Reed HR, have recorded the following complimentary online employment law seminar, where they discussed employment law considerations as lockdown eases.

Please click on the play button in the bottom left corner of the below video image to start viewing.

To follow the full size slides the team are using throughout the presentation, please click here prior to commencing watching.

We have also included a podcast version should you wish to listen to the seminar again at your leisure, the link is also below.

Social media – 10 top tips to build your brand

With lockdown at last lifting, businesses are looking to better times ahead and are seeking to build back better after one of the most challenging economic periods of modern times. David Pritchard, award-winning head of marketing at Sintons, and Peter Jennings, marketing executive at Sintons share their insight into how social media can help business owners in their efforts to do so.

As we continue to emerge from the COVID-19 pandemic and the seismic effects lockdown has had on the economy and huge numbers of businesses operating within it, social media is proving a key tool in rebuilding.

As a resource accessible to everyone for no cost, effective use of social media can deliver a great boost to a business and its brand – there is no better way of conveying your message than via your own channels, so why not use them to maximum effect?

Whether it’s Twitter, Facebook, Instagram, or whatever platform you use, there can be few better resources available if you channel your efforts into making best use of it.

At Sintons, our social media media presence has grown significantly during the pandemic, with us using this valuable resource to communicate with business owners and individuals across the UK and beyond, helping to give clarity around the fast-changing economic situation when that was otherwise hard to find.

Here are a few of the points which have enabled us to build the social media presence we have done, and have made us the constantly-accessible resource to our clients we have become.

  1. Fully Update Your Social Media Accounts

Decide which social media account(s) you are going to focus on, and delete any old accounts that you are no longer using. For the networks you will be using, make sure all of your information is complete and accurate. This will help you to build traffic to the networks you want to showcase your work.

  1. Identify Your Area of Expertise

Everyone’s an expert at something – what type of content have you created that your followers have responded to most? Can you replicate this with other similar content? The more unique and engaging content you create on your chosen topic of expertise, the more your followers will start to think of you as a leader in your chosen field.

  1. Make Posting Easy with Apps

Forgotten passwords, busy day jobs and content creation. Maintaining an online presence can be time-consuming, but there are many social media apps at hand to make life easier and will enable to post on the go.

  1. Share Content On a Regular Basis

You want to keep the lines of communication open with your audience, but you also don’t want to overshare so much that you look desperate. The sweet spot is posting around 3-4 times per week for individuals.

  1. Create Engaging Content

Reposting (or curating) others’ content is always a smart thing to do, but it’s not all you should be doing to build your brand. You also need to share content that you’ve written yourself, to demonstrate your expertise within your industry. This type of content shows you have knowledge of the latest trends in that industry and how it is evolving.

Creating engaging content means taking a fresh approach to the types of updates you share with your network.

Don’t be afraid to occasionally talk about your own achievements, or even add engaging tidbits about your personal life (topics such as travel, hobbies, etc.are suitable). After all, social media is about individuals first.

Sharing some of this information provides your audience with a glimpse of who you really are and what you’re about – just ensure you don’t overshare or make it all about you.

Additionally, visual content is 40 times more likely to get shared on social media than other types of content, so give consideration to that.

  1. Import Your Contacts

You might be amazed to see how many people you already know on the social media networks you’re using. There may be tens, or even hundreds, of people with whom you haven’t yet connected with.

Import your email contacts from Gmail or Outlook, or contacts from your phonebook, into your social networks to find out how many connections you’re missing.

LinkedIn, Instagram, Facebook and Twitter all allow for a free import of a certain number of contacts.

  1. Keep it Positive

You now know some of the things you should be doing on social media to build the best social impression for yourself, but do you know not to do to keep that impression a positive one?

Think of your social media interactions and content creation as part of a resume of your work and a reflection of your professional attitude and overall personality. Avoid inflammatory religious or racial comments, and be careful when making political commentary that others may consider offensive.

If you have concerns about not being able to voice your opinions to the extent you wish, consider creating two sets of social media accounts: one for private use (say whatever you want), and one for personal use (in which your responses and shares are heavily calculated).

Keep your personal pages private to just close friends and family, and use your professional accounts to build new connections and career opportunities.

  1. Find and Join Groups

Facebook and LinkedIn both offer thousands of opportunities to join groups focused on specific industries or topics. Use the search bar on each network to find groups that are linked to your specific area of expertise, then you’ll be able to share your insights and build authority around your personal brand.

Keep in mind that industry groups may be overcrowded with your competitors, so smaller, topic-based groups may be more fruitful in terms of reaching your audience.

Social Media Groups Can Help You:

  • Challenge and motivate yourself
  • Push you to achieve your goals
  • Keep you accountable
  • Get ideas
  • Receive feedback
  • Gain confidence
  • Expand your skills
  • Test your knowledge
  • Develop leadership skills
  • Help others
  • Do some good
  • Make friends
  • Discover new opportunities

Once you’re a member of your preferred social media groups, don’t be afraid to jump into discussions and add your unique insights.

It can be difficult to remember sometimes that that’s what social media is all about. So don’t be afraid to have conversations. If you simply join a group and don’t participate, you won’t gain any of the benefits listed above.

On the other hand, showing that you’re responsive will help you build your personal brand in larger communities beyond your own.

  1. Keep Your Brand Voice, Image & Tone Consistent

You’ve probably already figured out that sticking to your defined persona is important. If a popular political commentator suddenly and radically switched parties, no doubt he or she would lose a lot of fans overnight.

You must also remain consistent with your ideas and the ways you present them so that you’re memorable and trustworthy.

Dining the tone of voice that works best for your brand may entail some trial and error, but there are personal branding guides you can use to determine the best fit for you. It’s not as easy as saying “I want to be funny,” you need to further develop your ideas to support your approach.

Following your brand guidelines helps to control people’s perceptions. You can damage an otherwise flawless reputation if one of your profiles shows up with content or images that don’t match up with your brand’s voice.

  1. Study Influencers

Connecting with and collaborating with influences is a great way to get your brand known, but it does take some time. You have to spend time developing relationships with influencers before they’ll see you as an expert.

LinkedIn is a great place to find and engage with other experts in your industry, as are several influencer marketing tools.

Once you’ve found the top influencers in your area, analyse their networks, posting habits and content to determine what you could be doing better. Notice how their followers respond to what they post, and learn best practices from their personal branding strategies and execution.

Employers supported through roadmap out of lockdown

The roadmap out of lockdown and its impact on employers is to be examined by employment specialists at Sintons in an upcoming event.

As lockdown continues to ease, and the UK gets set for the June 21 when restrictions on social contact are set to be lifted, there are many implications for employers to consider.

From the continuation of home working and virtual contact, to bringing back employees into the business after furlough leave, the spectrum of issues being faced by businesses will be discussed by experts from Sintons, together with Reed HR.

During the pandemic, Sintons became a trusted advisor to both new and existing clients as they came to terms with the fast-changing situation around the running of their business and retention and deployment of staff.

Through providing up-to-the-minute advice on developments around the Job Retention Scheme and other Government COVID-19 measures, Sintons became the go-to advisor for many in negotiating their way through the uncertainty.

By holding regular Q&A webinars and online events, alongside the use of content and social media to convey updates and information, employers have benefitted from free advice and guidance during some of the most challenging times they have ever faced.

Now, through this new event, held on May 20, employers can help prepare for the next phase, as businesses emerge from the pandemic restrictions into the ‘new normal’ everyday life.

“We’ve been by the side of countless business owners during the pandemic, helping to provide advice and clarity during times when that has been absent elsewhere – they have faced some of the biggest challenges imaginable, which were thrust upon them overnight from March 23 last year, and we are pleased to have guided so many through it to this point,” says Keith Land, head of employment at Sintons.

“Now, as we prepare to emerge from restrictions, it’s far from ‘business as usual’ for many businesses, as the last year has necessitated so many changes. Through holding this event, we will advise employers on the very latest advice and guidance in employment law, and offer support on how to negotiate this.

“As we continue to move out of restrictions and rebuild from the impact of the past year, we appreciate that the challenges for businesses do not end here. We’ll continue to support our businesses regionally and nationally in every way we can, as we move forward together.”

* The Roadmap out of Lockdown event will be held on Thursday, May 20, from 10am to 11.30am. It will be a virtual event due to continuing social restrictions. To register attendance, please contact Peter Jennings on peter.jennings@sintons.co.uk or call 0191 226 7907.

Are you a care home provider? Covid and a loss of capacity of a resident can impact on your business

A care home provider’s regular flow of income inevitably comes from residents paying their fees on time. Care home providers have been, and will continue to be, affected by residents losing the capacity to authorise payments and by them not having the appropriate lasting power of attorney (LPA) in place to enable someone to arrange payment on their behalf.

Over the past year, Covid has also been an extremely challenging time for care home providers. Restrictions have meant that residents have had to stay indoors and family members have not been able to visit their loved ones until recently. As a result, we have seen care home providers struggle with their cash flow due to residents not having put in place a LPA for property and financial affairs.

The ability to collect in residential fees promptly is essential for many care homes to remain open, not least during difficult times such as the Covid pandemic. By a resident having a LPA, this facilitates payment. It is essential that care homes ensure provision is made for payment of fees as the effect of late payments can impact heavily on the day-to-day running of the business.

As a matter of course, a care home provider will assess the mental capacity of its residents and will discuss how payments are to be made. However, it should also be established whether the resident will retain responsibility for his or her own financial affairs or whether he or she would like to appoint someone else (known as an “attorney”) to act on his or her behalf via a LPA should he or she lose capacity in the future to deal with property and financial matters. The resident can also give consent for the LPA to be used before a loss of capacity if he or she wishes. Using the LPA with his or her consent can assist in circumstances where Covid restrictions continue to be in place. The attorney could be a trusted family member, friend, or a professional advisor. By a resident having a LPA in place, this will ease the burden on care home providers to pursue outstanding fees. Even if the resident is unable to arrange payment for whatever reason then, depending on the circumstances and the how the LPA has been drafted, the resident’s attorney can arrange payment. There are so many advantages for both the care home provider and the resident, for the resident to have a LPA in place.

Should a resident lose capacity without a LPA in place, someone will have to apply to the Court of Protection to become a deputy in order to ensure that the care provider’s fees are paid from the resident’s funds. An application to the Court of Protection can be a lengthy and expensive process. This can have a further huge impact on care home providers who need to ensure that wages, maintenance and other fees are paid in order for the business to run efficiently.

To avoid the potential difficulties that can arise if a resident loses capacity to deal with his or her own affairs, it is worthwhile for the care home to discuss LPAs from the outset with the resident and put a plan in place in case the resident needs someone to assist him or her.

Paul Collingwood is a senior associate in the specialist WillsTrusts & Estates team at Sintons. To speak to Paul about this or any other matter, contact him on paul.collingwood@sintons.co.uk or 0191 226 3713.

Ask the Experts – a Monthly Q&A with Sintons’ Employment Team – episode 20

Today we recorded our ‘Ask the Experts monthly Q&A with Sintons’ Employment Team – episode 20’ – with Catherine Hope and Angela Carver. These sessions came about due to the employment team here at Sintons having been inundated with COVID-19 and furlough questions following the introduction of the Coronavirus Job Retention Scheme and the ever changing government guidance.

Our session today covers the following topics:

  • Sabbaticals and the impact on holiday entitlement
  • Sick leave and fit notes
  • An ET1 relating to a former employee

For your convenience we have also recorded this session as both a webinar and podcast, links to both are below.

The Government further extends emergency legislation to protect businesses until the 30 June 2021

In an announcement on 25 March 2021, the Government further extended the temporary suspension of insolvency and other measures which are aimed at protecting businesses during the coronavirus pandemic.

The original measures introduced in 2020 saw an extension to the 31 March 2021 and now, we see a further extension to the 30 June 2021.

The measures that have been extended include:

  • statutory demands served between 1 March 2020 and 30 June 2021 may not be used to form the basis of a winding up petition;
  • winding up petitions cannot be presented between 27 April 2020 and 30 June 2021, unless it can be established that the insolvency is unrelated to the coronavirus pandemic; and
  • the moratorium preventing forfeiture of commercial leases due to the non-payment of rent has also been extended until 30 June 2021.

The measures which the Government have taken, aim to protect debtor companies against creditor action during a period when companies are continuing to be impacted financially by coronavirus.

By way of example,  this means creditors cannot rely on statutory demands to bring winding-up petitions and are prohibited from filing winding up petitions where the company’s inability to pay its debts is due to coronavirus.

This does not in itself prohibit the presentation of a winding up petition, but the petition will need to the reviewed by the Court and if the Court is satisfied that the inability of the business to pay the creditor relates to coronavirus, then the petition will be void.

A further breathing space is provided to business tenants by the extension of the moratorium preventing landlords from forfeiting commercial leases based on rent arrears which will last until 30 June 2021. The moratorium over forfeiture was due to expire on 31 March however this is also now further extended. The Government hoped that this additional time would allow tenants the opportunity to reach arrangements with their landlords over rents which would then enable businesses to continue to operate. Many landlords now find themselves with fewer options at their disposal to force payment of rents whilst this moratorium remains in place.

These latest extensions are in keeping with the other temporary measures which were extended last Autumn, including a relaxation of the personal liability that may be imposed upon directors for wrongful trading.  Whilst taking all these steps, the Government hopes to help viable businesses continue to operate through the pandemic, it raises some important questions around whether this is the ‘final extension’ and whether this is protecting good businesses or just delaying the inevitable collapse of some businesses who may be sleepwalking into financial ruin.

While it is currently speculation, the issue must be whether, on the eventual final extension of the moratorium, Government will be forced to introduce additional forms of protection by way of statute in order to lessen the impact on debtors and to prevent multiple insolvencies and business collapse, for example, requiring rather than, as at present, urging creditors to agree repayment instalments.

If you have any queries about the temporary insolvency measures please contact Allison Thompson on 0191 2263719 or in respect to any forfeiture/commercial landlord queries please contact Aimee Hubbard on 0191 2263792.

Ask the Experts – a Monthly Q&A with Sintons’ Employment Team – episode 19

Today we recorded our ‘Ask the Experts monthly Q&A with Sintons’ Employment Team – episode 19’ – with Fiona Campbell and Angela Carver. These sessions came about due to the employment team here at Sintons having been inundated with COVID-19 and furlough questions following the introduction of the Coronavirus Job Retention Scheme and the ever changing government guidance.

Our session today covers the following topics:

  • April 2021 changes
  • Business Immigration

For your convenience we have also recorded this session as both a webinar and podcast, links to both are below.

Coronavirus Job Retention Scheme – Update

Yesterday (3 March 2021), the Chancellor, Rishi Sunak, delivered the Spring 2021 Budget. He announced that the Coronavirus Job Retention Scheme (“CJRS”) will be extended for a further five months until 30 September 2021, to support those businesses who continue to be impacted by the COVID-19 pandemic.

The CRJS rules will mostly remain the same with a few minor changes in the near future. Employers will continue to be able to claim 80% of an employee’s usual salary for hours not worked (up to a maximum of £2,500 per month). There will continue to be no employer contributions beyond National Insurance contributions and pensions required in April, May, and June. However, from July, the Government will introduce an employer contribution towards the cost of unworked hours. This will be 10% in July and 20% in August and September.

In terms of which employees can be placed on furlough leave under the CJRS, for periods on or before 30 April 2021, employers can claim for employees who were employed on 3 October 2020, as long as they made a PAYE RTI submission to HMRC between the 20 March 2020 and 30 October 2020, notifying a payment of earnings for that employee.

For periods starting on or after 1 May 2021, employers will be able to claim for employees who were employed on 2 March 2021, again as long as they made a PAYE Real Time Information (RTI) submission to HMRC between 20 March 2020 and 2 March 2021, notifying a payment of earnings for that employee. Details of how employers should calculate their claims for periods starting on or after 1 May 2021 will be provided in updated guidance in due course.

Full guidance can be found here.

If you have any questions about the CJRS, or any other employment law issues, please contact a contact a member of our Employment Team.

Ask the Experts – a Monthly Q&A with Sintons’ Employment Team – episode 18

Today we recorded our ‘Ask the Experts monthly Q&A with Sintons’ Employment Team – episode 18’ – with Fiona Campbell and Catherine Hope. These sessions came about due to the employment team here at Sintons having been inundated with COVID-19 and furlough questions following the introduction of the Coronavirus Job Retention Scheme and the ever changing government guidance.

Our session today covers the following topics:

  • I understand the Government guidance will continue to be to work from home where possible, but I do not feel my employees are working as effectively at home as in the office. What are my options?
  • I made a number of employees redundant as trade disappeared from my business. However, business has started to return and I have hired some new people. Am I at risk of unfair dismissal claims from the employees I made redundant and on what grounds could I defend any claims?
  • The Government Coronavirus Job Retention Scheme is currently due to end on 31 April. Is there any other Government support available after this date? I cannot sustain my staff salaries without financial assistance until business returns to pre-lockdown levels, but I am concerned this will be too late.

For your convenience we have also recorded this session as both a webinar and podcast, links to both are below.

FCA v Arch Insurance (UK) Ltd and Others – The Business Interruption Insurance Test Case

Since the first introduction of lockdown measures by the UK Government on 23 March 2020, many businesses have been forced to close. Those with the benefit of Business Interruption Insurance Cover (BII) have sought to rely on it, only for many insurers to decline their claims on the basis that the policy does not cover events arising from the Covid-19 pandemic.

Sintons has been advising businesses who have faced such issues with their insurance policies. We may be able to assist your business if you have had an insurance claim declined.

The uncertainty in this area led the Financial Conduct Authority (FCA) to begin test case proceedings on behalf of policyholders against (and with the agreement of) eight insurance companies in June 2020. The aim of the test case was to clarify whether 21 sample policy wordings provide BII arising from Covid-19 and the public health measures taken by the UK Government in response to it.

The High Court handed down its Judgment on 15 September 2020. Various aspects of that Judgment were appealed to the Supreme Court and the Judgment on the appeal was handed down on 15 January 2021.

It is important to note that the extent to which losses arising from Covid-19 are covered by BII is highly dependent upon the wording of the individual policy. There is no universal answer and policyholders should seek legal advice if they are unsure of their position.

The key issues in dispute related to:

  • Clauses that provided cover in the event that an occurrence of a prescribed class of disease was identified within a prescribed distance from the insured business (Disease Clauses);
  • Clauses that provided cover in the event that a public authority imposed restrictions preventing access to or use of the insured business premises following an insured event (Denial of Access Clauses);
  • Clauses that provided for the valuation of any insured losses to be based on trends and other circumstances that would have affected the business regardless of the insured event (Trends Clauses); and
  • The 2010 High Court decision in Orient-Express Hotels Ltd v Assicurazioni Generali SpA (Orient-Express), which related to a BII claim arising from hurricane damage to a hotel in New Orleans.

Disease Clauses

The High Court held that most of the Disease Clauses in question provided BII as long as there was at least one instance of Covid-19 within the distance from the insured business defined in the policy. It also held that indemnity was not necessarily limited to losses arising only from instances of Covid-19 within that defined distance.

This was appealed by the insurers but, although the Supreme Court disagreed with the High Court’s technical reasoning, it reached the same practical conclusion.

Denial of Access Clauses

The High Court held that where a policy provided BII in the event of the insured business being closed due to “restrictions imposed by a public authority”, such restrictions were required to be legally enforceable to trigger BII.

The Supreme Court disagreed, giving the example that the Prime Minister’s instruction on 20 March 2020 for certain businesses to close that night was not immediately enshrined in law, but was nevertheless a restriction imposed by a public authority. However, the Supreme Court noted that where a policy provided BII in the event of an “enforced closure of an Insured Location”, that policy was not triggered by advice, social distancing and instructions to stay at home.

The High Court held, and the Supreme Court agreed, that restrictions did not need to be imposed specifically upon the insured person or property in order to trigger BII. It was sufficient that restrictions were imposed preventing the wider public from accessing the business.

The High Court also held that BII was only triggered in the event of a complete inability to access the insured business. However, the Supreme Court disagreed with that and ruled that it was sufficient for a part of the insured business or business premises to be inaccessible, although it accepted that losses would be reduced where some part of the business could continue to operate.

Trends Clauses

The High Court held that Trends Clauses operate only in the calculation of insured losses, rather than in the scope of the indemnity available. As such, if BII is triggered by Covid-19, the calculation of the insured losses cannot then be limited by the existence of a downward trend in the economy also caused by Covid-19. It also held that the purpose of Trends Clauses is to put the insured business into the position it would have been in had the insured event not occurred.

By slightly different reasoning, the Supreme Court agreed with that ruling.

Orient-Express

The decision in 2010 was that the policy taken out in relation to a hotel that was damaged by hurricanes Katrina and Rita did not provide any BII for losses incurred as a result of damage to the wider New Orleans region, on the basis that such losses would have been suffered even if the hotel itself had not been damaged. The insurers relied on this as a notable part of their defence.

The High Court found that the present case was sufficiently different from Orient-Express that it was not bound to follow it. The Supreme Court went further and overruled Orient-Express, declaring that it had been incorrectly decided.

Conclusion

In summary, the Supreme Court’s ruling is a victory for policyholders. However, the wording of the policy is key to the outcome of any insurance claim and insurers are now likely to be very careful about the words used in policies containing BII.

If you have a dispute regarding your BII policy and you would like legal advice, contact our Commercial Dispute Resolution team.

Increasing confidence in separation and divorce

As we hurtle through 2021 (astonishing that we are in February already) it would seem that any reticence in taking active and formal steps with regard to separation and divorce seems to have subsided.

Along with the usual increase of cases in January, many people deciding that they will ‘get Christmas out of the way first’, the team has received additional enquiries and new instructions from clients who have been very cautious and we would go as far as saying scared of hitherto taking action to end a relationship or trying to resolve matters by way of divorce.

The team has also received a significant increase in cases concerning the arrangements for children. This coincides with the onset of the third national lockdown and whilst parents have had to navigate this situation twice previously it would genuinely seem that this time it is simply taking its toll on already jaded and exhausted families.

The Family Team at Sintons has fully embraced the virtual way of working so that clients’ needs continue to be exceeded.  In fact, we are finding that this approach is often much more convenient for our clients.  Following on from that we have introduced a Virtual Platform which allows our busy clients to engage with us and provide information and documentation when its suits them, not us.

The traditional core hours of practice have become more fluid in the space of the last 12 months and our clients seem on board with these changes.

Coupled with that the team now has the added benefit of a Solicitor Apprentice which provides for a more varied charging structure to suit all of our clients’ budgets.

Whatever your personal situation, you need to be comfortable that it is the right time to take matters forward. That may include having an initial telephone or video chat with us to ensure that you have all the necessary up to date information and are on the right track as to how you would like things to progress.

If you would like to arrange a meeting with a member of the team please contact us on 0191 2267878 or by email louise.masters@sintons.co.uk.

Sixth Furlough Treasury Direction

HM Treasury has issued a new Treasury Direction covering the Coronavirus Job Retention Scheme (the “CJRS”).

The direction refers to the extension of the CJRS from 1 February to 30 April 2021. There are no changes to the amounts that employers can claim for under the CJRS for the months February to April 2021.

Employers will continue to be able to claim for 80% of an eligible employee’s salary, capped at £2,500 per month, in respect of hours not worked, and will continue to be required to pay the employer national insurance and employer auto-enrolment pension contributions on furloughed employees’ pay.

It confirms the position that employers will not be able to claim for employees who are on notice and this is confirmed for the period to 30 April 2021 and that HMRC will publish information on employers who claim under the CJRS. The first information in relation to claiming employers was published on 26 January 2021.

The deadlines to submit claims in respect of February to April 2021 are as follows:

  • February: 15 March 2021
  • March: 14 April 2021
  • April: 14 May 2021

The deadlines to amend claims in respect of February to April 2021 are as follows:

  • February: 29 March 2021
  • March: 28 April 2021
  • April: 28 May 2021

The direction also modifies the corresponding calendar month period used for calculating the March and April 2021 furlough pay for non-fixed rate employees whose relevant reference day is 19 March 2020. Instead of taking the corresponding month in 2020, when an employee could have been on furlough pay, employers should refer back to the employee’s pay in March and April 2019.

If you have any questions relating to this content or any other employment issue, please contact the team.

Ask the Experts – a Monthly Q&A with Sintons’ Employment Team – episode 17

Today we recorded our ‘Ask the Experts monthly Q&A with Sintons’ Employment Team – episode 17’ – with Angela Carver and Catherine Hope. These sessions came about due to the employment team here at Sintons having been inundated with COVID-19 and furlough questions following the introduction of the Coronavirus Job Retention Scheme and the ever changing government guidance.

Our session today covers the following topics:

  • Can an employer hire someone to do a basic role which could easily be carried out by a furloughed worker, or should it be offered to the furloughed worker?
  • Restrictive covenants
  • Can an employer require employees to be vaccinated against COVID-19?

For your convenience we have also recorded this session as both a webinar and podcast, links to both are below.

Meet our Team – Sarah Smith

Sarah Smith

What is your role at Sintons and how long have you been with the firm? 

I am a partner and head of the licensing and gambling team, and have been with Sintons for 15 years.

Tell us about your career to date…

I trained at Mincoffs Solicitors and worked there for 13 years, initially as a personal injury solicitor before becoming a partner and head of their licensing department.

Can you tell us about your department and the work it does

We deal with all licensing matters relating to alcohol, entertainment and late night refreshment, sex establishments, gaming operations (such as adult gaming centres, betting, lotteries etc) and we also advise on taxi licensing.

We are involved in obtaining licences, maintaining and varying licences and defending licences from enforcement action. If you want or have a licence, we are the people you want to have on your team.

What have been your personal career highlights to date?

There have been lots of very interesting and high-profile matters that I have worked on. More recent highlights include obtaining the premises licence for STACK Newcastle after a six-day appeal hearing and securing the licences for Hard Rock Café, Alnwick Castle and Alnwick Gardens. In my personal injury years I was involved in the first case in which the MOD paid out compensation in excess of £1m. And of course the day, many years ago, that I met Ant and Dec to advise them on their proposed foray into the licensing trade will always be remembered!

Sintons enjoys a first-rate reputation regionally and nationally for its work. What is it like to work here?

Sintons is a great place to work. We work hard but we have fun. There are always lots of community and charity-based initiatives which helps to maintain a real sense of Sintons as a team, and we invest a lot in the younger staff as they are the future of the firm.

And finally, tell us about your interests outside work…

As with many working mums, my interests are usually limited to my kids’ interests. In the winter it’s watching my daughter play rugby and in summer watching my son play cricket or golf. I have been known on occasion to swing a tennis racquet or golf club but if I get time to myself it’s usually a chance to walk the dog, catch up with friends or expand my knowledge of gin (for research purposes only, of course).

Sintons’ Court of Protection team thrives despite global pandemic

The specialist Court of Protection team at Sintons has seen an increase in new instructions from across the UK over the past few months, supporting families as normal despite the challenges surrounding the COVID-19 pandemic.

The team – comprising of Sophie Robinson-Davies, Sophie Moore and Melissa Gill – has continued to attract high quality work nationally during the pandemic, with clients turning to Sintons to help guide them through what is invariably a difficult and distressing time.

The team acts for a wide range of clients but is particularly well known for representing those who have suffered serious injuries, including brain injuries, and have received or expect to receive compensation payments as a result.

The team – which is establishing itself as a leader in its field, with a fast-growing reputation for providing a first-rate legal service – is often approached by the friends and family of individuals, by law firms and by other professional advisors to assist with the management of a person’s finances both while their claim progresses and once it has settled.  The team does not just deal with investing the client’s compensation payment but it also handles day-to-day matters such as buying a client’s clothes or paying friends and family to provide care, overseeing property adaptations and support during their rehabilitation.

An essential part of the team’s role is to manage a client’s finances in the same way that the client would have handled them if they were still able to do so.  To do this, the team needs to really get to know each individual client and the people around them so that it fully understands their specific needs and priorities.

Supporting clients during the current pandemic has presented a series of additional challenges for the team.  It has been required to come up with pragmatic solutions to problems that have arisen including purchasing exercise equipment for clients who were no longer able to access gyms and rehabilitation centres, furloughing support staff where they were unable to come to work and acquiring electronic devices for virtual conferencing and online therapy.

In addition to the day-to-day support that the team gives clients in relation to their finances, it regularly handles one-off applications – including statutory will applications where a client is no longer capable of giving instructions to make their own will, applications to set up trusts on behalf of individuals who have lost mental capacity and providing advice on access to funding and payments from local authorities and the NHS.

The Court of Protection Team forms part of Sintons’ award-winning Wills, Trusts and Estates Team, which is regularly acknowledged to be one of the leading advisors of its kind in the North of England.

Paul Nickalls, head of the Wills, Trusts and Estates Team, says: “Our Court of Protection team is rightly regarded as a leading name in this field, and we have worked very hard to develop our presence in this very specialised area of law.

“Sophie, Sophie and Melissa are all highly capable specialists who advise clients clearly and directly, yet sensitively, supporting them through distressing times and giving the clarity they need in determining the best course of action for their loved one. While over the past few months this has often been done remotely due to the COVID-19 restrictions, they have remained fully contactable and always available – our commitment to our clients will never change.

Sophie Robinson-Davies is often asked to speak to local and national charities to give their service users advice on supporting individuals who lack capacity to manage their property and financial affairs and is regularly invited to sit on guest panels where she gives advice around specific topics to other professionals working within this area of law. In addition to this, Sophie has recently been appointed as a trustee for a national charity that supports those with additional needs where she hopes to strengthen her skill and experience even further in supporting those who can be considered as the most vulnerable in our communities.

“During the pandemic, the team has continued to win new instructions from across the UK, with many new clients coming to us based on our reputation and recommendation of others. Our commitment to delivering the highest standards of both legal and personal service is what makes us stand out in the field, and that is why we continue to make strong progress and development in this area of the business.”

Falling Foul of Furlough Fraud?

While the Government has committed billions of pounds to supporting businesses through the unprecedented challenges of the COVID-19 pandemic, reports of fraudulent claims around furlough leave are rising. By early January 2021, HMRC confirmed they are currently investigating 21,378 cases of suspected furlough fraud.

Whether this has been a deliberate action, or a misinterpretation of the complex rules around the Coronavirus Job Retention Scheme (CJRS), there is an urgent need to rectify matters for any business which has fallen foul of the regulations.

HMRC are looking increasingly closely at claims made through the CJRS, and are performing spot checks on businesses, so it is advisable to ensure that payments are audited now. Any erroneous claims will be found by HMRC, so it is very important that claims and associated information are in order. Businesses must retain all supporting evidence relating to this, including calculations of claims made.

If an error has been made, or the money you received is not to be used to pay wages, tax, NI or pension contributions, you must notify HMRC to avoid a penalty.

The CJRS payments are classified as revenue receipts chargeable either to corporation or income tax and any overpaid amount must be repaid in the relevant time period. The period for sole traders and partners ends on 31 January 2022 and for companies, the period ends 12 months from the end of their company accounting period.

HMRC can recover the full amount by way of a tax assessment, which must be paid within 30 days. A penalty of up to 100% of the CJRS wrongly received can be charged by the HMRC as punishment if they are not told of the over claim within the notification period. The notification period is currently the latest of 90 days after the date of receiving the grant or 90 days after circumstances changed resulting in no longer being entitled to keep the grant.

Repayment and penalties can be sought against any partner in a partnership and officers of an insolvent company.

HMRC can also use the investigation and enforcement powers under the Finance Act 2020 where they suspect deliberate criminal activity has been committed. These can relate to serious offences, including conspiracy to defraud, fraud by false representation, false accounting, cheating the public revenue and money laundering.

Consequences of being found to be in breach of the rules are very serious. Not only is there the reputational damage this could do to a business, but there is also the prospect of a criminal conviction or even imprisonment.

By taking action now to ensure you are entirely compliant with the CJRS rules and in making any claims, you will avert any potential sanctions further down the line.

* Sheila Ramshaw is an associate and regulatory specialist at Sintons. For advice around CJRS compliance, and assistance in preparing for a possible spot check from HMRC, contact Sheila on sheila.ramshaw@sintons.co.uk or 0191 226 3739.

‘But it is not yet business as usual…’ – NHS England Dental Update

Yesterday NHS England published its latest Preparedness letter for primary dental care.

This confirms the contractual arrangements for NHS dentistry for the period 1 January to 31 March 2021. Practices which deliver 45% of their contractual units of dental activity (“UDAs”) will be deemed to have delivered their full contractual obligation.

From 1 January 2021 there will be a return to the usual contractual measurements of UDAs, units of orthodontic activity (“UOAs”) and courses of treatment (“COT”). The contract targets have been adjusted to 45% of the NHS contract target in respect of UDAs and 70% of the target for UOAs for the last quarter of the NHS financial year.

If these targets are reached there will be no claw back under an NHS contract.

In the event that a practice falls short, there is some additional protection for those that still achieve at least 80% of the targets set out above. In terms of UDAs, if a practice delivers at least 80% of the 45% requirement between January and March (i.e. 36% of overall contracted activity for this period), NHS England will still waive some of its claw back rights. Practices meeting between 80 and 100% of the 45% target will be deemed to have met a sliding scale of between 80 – 100% of their overall contract target and be paid accordingly.

However, if a practice delivers less than 80% of the 45% target between January and March (i.e. less than 36% of contracted activity), they will only be taken to have delivered the actual activity delivered during this period. For example, if they achieve 35% of their contractual UDAs they will only be paid 35% of the contract value, as opposed to being paid 80% of the contractual value if they achieve 36%.

The contrast here in treatment seems stark and will likely cause great difficulties for any dental practices already struggling.

The British Dental Association (“BDA”) has confirmed that it has refused to sign up to this arrangement which it believes will ‘threaten practice viability and undermine patient care’ and is not the approach it would expect during an ongoing pandemic. According to the BDA,

NHS England’s own contract data, which we have seen, suggests in November only 43% of contract holders are likely to escape penalties. This is untenable. Most dental practices provide a mix of NHS and private care and many are already suffering due to a lack of support for private dentistry throughout the pandemic’.

We are aware that the impact of COVID-19 on dental services is up for Parliamentary debate on 7 January 2021 so this will be one to keep an eye on.

If you have any questions in relation to this content please contact a member of Sintons’ specialist dental team.

Quote references 

  1. NHS England
  2. BDA

Get the party started – but remember to protect personal data!

It is a legal requirement in England for pubs, bars, hotels, restaurants and cafes to collect the personal data of their customers to help prevent the spread of coronavirus. The Government introduced the ‘NHS Test and Trace’ to assist establishments with this requirement. In addition, all personal data collected must be handled in accordance with the Data Protection Act 2018.

Although England is currently being regulated by a tier system, once establishments reopen fully, the following principles will need to be followed:

  • You are required by law to participate in NHS Test and Trace and therefore you do not need to seek consent from your customers – though information should be given voluntarily.
  • You should display the privacy notice that the Government has provided which explains how your business will manage a customer’s personal data to support NHS Test and Trace.
  • Not all customers have the NHS Test and Trace App so you are required to offer a secure alternative. Venues must take reasonable steps to refuse entry to a customer who does not provide their name and contact details, is not in a group where one other member has provided their details, or who has not scanned the NHS QR code.
  • You cannot collect the information for marketing purposes or any other business reason, it must only be used for contact tracing purposes.
  • If the customer does not have the NHS App, accurately limit the information taken to only the name of the customer, their phone number and the date and time of their arrival. If there will be a designated member of staff to the customer, their name should also be recorded. You cannot ask a customer for their details again if they have checked in using the NHS App.
  • As with all personal data, it should only be kept for as long as is needed. For the purposes of NHS Test and Trace, the Government has stipulated 21 days. After this time digital records should be permanently deleted and paper records should be shredded.
  • You must ensure that all personal data you hold is safely protected. This is your responsibility and you must have measures in place to ensure all data held is not stolen, lost or destroyed. Measures you should take include staff training, policies and procedures and a secure electronic system.
  • With contact tracing, the customer does not have an absolute right to request their personal data be erased. They do have the right to access the data you hold for them and they can ask for any inaccurate data to be corrected.
  • It is not your responsibility to contact anyone if you discover that someone has tested positive while visiting your premises. This responsibility lies with the NHS tracing team. You only need to share the details if you are asked to do so by the team.
  • You must carry out a Data Protection Assessment, similar to a COVID 19 Risk Assessment, as you have introduced a new system to manage contact details of your customers.

Please click here for the link to print and display the Government Privacy Notice.

Ask the Experts – a Monthly Q&A with Sintons’ Employment Team – episode 16

Today we recorded our ‘Ask the Experts monthly Q&A with Sintons’ Employment Team – episode 16’ – with Keith Land and Fiona Campbell. These sessions came about due to the employment team here at Sintons having been inundated with COVID-19 and furlough questions following the introduction of the Coronavirus Job Retention Scheme and the ever changing government guidance.

Our session today covers the following topics:

  • Disciplinary procedures
  • Notice and furlough leave
  • Can employees on long term sick leave who are clinically extremely vulnerable be placed on furlough leave, or should they remain on sick leave?

For your convenience we have also recorded this session as both a webinar and podcast, links to both are below.

Coronavirus Job Retention Scheme – Update

The updated Government guidance covering the extension of the Coronavirus Job Retention Scheme (“CJRS”) was published on 10 November. This was followed by the publication of the 4th Treasury Direction to HMRC late last Friday evening (13 November), which provides the legal framework behind it.

This confirmed some important further changes to the CJRS going forward which employers should be aware of, and which we set out below:

  • Claims must not be made for any day where employees are serving statutory or contractual notice between 1 December 2020 and 31 January 2021.
  • If an employer makes a claim under the CJRS covering a period from 1 December 2020 onwards, they will be accepting that HMRC will publish information about CJRS claims online. The information published will include an employer’s name, any relevant reference number, and an amount which gives a ‘reasonable indication’ of the amount they have claimed. A publication may be withheld if this would cause ‘serious risk of violence or intimidation’.
  • Employers must have furlough agreements in place, and these must be made before the beginning of a period to which a claim relates. However, these can be subsequently varied during the claim period. Employers can use previous agreements, as long as these are updated before the period of furlough leave within the extension period starts. There was an initial period allowed for agreements to be put in place with retrospective effect, going back to 1 November 2020, but this period expired on 13 November 2020.

The full Treasury Direction can be found at here.

If you would like any assistance in preparing a furlough agreement, or have any questions in relation to this content or another employment law issue, please feel free to contact a member of the Employment Team.

Employment Law Annual Update 2020

Sintons’ Employment team, in partnership with Reed HR, have recorded the following complimentary online employment law seminar.

This seminar is our ‘Employment Law Annual Update 2020’.

Please click on the play button in the bottom left corner of the below video image to start viewing.

To follow the full size slides the team are using throughout the presentation, please click here prior to commencing watching.

We have also included a podcast version should you wish to listen to the seminar again at your leisure, the link is also below.

If you have any questions please use the ‘Talk to Sintons now’ Live Chat facility in the bottom right hand corner of your current screen and a member of the team will be happy to assist.

Coronavirus Job Retention Scheme – Update

Yesterday the Chancellor, Rishi Sunak, announced that there will be a five month extension to the Coronavirus Job Retention Scheme (“CJRS”). This is to support individuals and businesses who continue to be impacted by the COVID-19 pandemic over the winter.

The CRJS rules will mostly remain the same with a few minor changes. Up until the 31 January 2021 employees will be able to receive 80% of their usual salary for hours not worked, up to a maximum of £2,500 per month (with the cap being proportionate to the hours not worked). The Government will then review the situation in January 2021 to decide whether the economic situation has improved enough to ask employers to increase their contribution.

Full guidance is expected to be published on 10 November 2020, but we set out some of the points which have been confirmed so far in the Government’s policy paper:

  • Employers do not need to have used the CJRS before to be able to claim under it, and it does not only apply to employees who have been previously furloughed.
  • Employers can claim whether their organisations are open or closed.
  • Employers can claim in respect of employees who were employed and on their payroll on 30 October 2020 (meaning an employer mist have made a PAYE Real Time Information (“RTI”) submission to HMRC between 20 March and 30 October 2020, notifying a payment of earnings for them.
  • Employees can continue to be furloughed on a full or part time basis.
  • Employer contributions will be the same as in August 2020, meaning that employers will only be asked to cover National Insurance and employer pension contributions.
  • If employees have previously been furloughed, employers will need to use the same calculations for calculating reference pay and usual hours as they have under the CJRS so far.
  • If employees are being placed on furlough leave for the first time (from 1 November 2020 onwards), employers must use a different pay reference period. In brief, for employees working fixed hours this will be 80% of the wages payable in the last pay period ending on or before 30 October 2020. For those with variable hours, this will be 80% of their average pay between the start date of their employment or 6 April 2020 (which is later) and the day before their CJRS extension period begins.
  • It is open to employers to place employees on furlough leave when they are unable to work because they are shielding in line with public health guidance, need to stay at home with someone who is shielding or have caring responsibilities resulting from the COVID-19 pandemic (including childcare).
  • Employees who were employed and on an employer’s payroll on 23 September 2020 and were made redundant or stopped working for their employer afterwards can be re-employed and claimed for. This is subject to the employer having made a PAYE RTI submission to HMRC from 20 March to 23 September 2020, notifying a payment of earnings for those employees.
  • Employees must continue not do any work in respect of any hours where they are recorded as being on furlough leave. They can take part in training, volunteer for another employer or organisation and work for another employer if their contract permits this.
  • As has been the case so far under the CJRS, changes to employee’s contracts must be made by agreement and furlough arrangements confirmed in writing. The Government has confirmed that furlough or flexible furlough agreements made retrospectively which have effect from 1 November 2020 (and subject to these complying with employment law) will be valid for the purposes of the CJRS. It is important to note that only retrospective agreements put in place up to and including 13 November 2020 may be relied upon for the purposes of a CJRS claim.

The launch of the Job Support Scheme, which was going to commence on 1 November 2020 alongside the three-tier restriction system, has been postponed, together with the Job Retention Bonus which was originally due to be paid in February 2021. A new retention incentive scheme is to be deployed at a later date.

The Government’s full policy paper can be found here.

If you would like any assistance in preparing a furlough agreement, or have any questions in relation to this content or another employment law issue, please feel free to contact a member of the Employment Team.

Family law – where are we now?

Senior Associate Louise Masters from the Family Law team at Sintons recently recorded a podcast entitled ‘Family law – where are we now?’

Please click on the link below to listen.

Ask the Experts monthly Q&A with Sintons’ Employment Team – episode 15

Today we recorded our ‘Ask the Experts monthly Q&A with Sintons’ Employment Team – episode 15’ – with Keith Land, Catherine Hope and Ailsa Hobson. These sessions came about due to the employment team here at Sintons having been inundated with COVID-19 and furlough questions following the introduction of the Coronavirus Job Retention Scheme and the ever changing government guidance.

Our session today covers the following topics:

  • PILON payments
  • Sick pay? Symptoms, isolation and quarantine – what are the rules?
  • Job Support Scheme.

For your convenience we have also recorded this session as both a webinar and podcast, links to both are below.

The Job Support Scheme – where are we at now…?

As we have known for a few months now, the Government Job Retention Scheme (the “CJRS”), which opened on 20 April and applied from 1 March, is coming to an end on 31 October. This is something which has subsidised the wages of over 9 million workers over the last 6 and a half months.

What comes next…

On 24 September, the Chancellor, Rishi Sunak, announced the introduction of the Job Support Scheme (“JSS”) which will apply from 1 November. The Government confirmed that the purpose of this is to assist those employers facing lower demand over the winter months due to the COVID-19 pandemic and who will no longer have access to the CJRS. Further Government guidance is to be published shortly but this is what we know so far.

The JSS will run for 6 months and under this employers will be required to pay their employees at least one third of their usual pay in relation to hours worked and a further third of their usual pay for the remaining unworked hours. In addition, employers will initially pay the Government contribution of a third of the usual hourly wage (capped at £697.92), an amount that can then be claimed back from the Government.

For example, if an employee’s normal monthly salary is £2,000 and they work 50% of their normal working hours, they would receive £1,000 from their employer for the hours worked, plus £333 from their employer and £333 from the government in respect of their unworked hours. The employer would claim back the £333 Government contribution from HMRC under the JSS.

For the first three months of the JSS employees must work at least 33% of their usual hours. Employees can move on and off the JSS and can work different patterns each month, but each short time working arrangement must cover a minimum of seven days.

The JSS is open to all employers throughout the UK with a UK bank account and UK PAYE scheme, regardless of whether or not their employees have previously been placed on furlough leave under the CJRS. Large businesses will need to be able to show that their turnover is lower now than before experiencing difficulties from COVID-19.

In terms of who employers can claim in respect of, employees must have been on the PAYE payroll on or before 23 September 2020 (i.e. Real Time Information submission notifying payment to that employee to HMRC must have been made on or before that date).

In addition to the JSS, Employers who bring employees back from furlough leave under the CJRS and continuously employ until January 2021 will be entitled to a £1000 Job Retention Bonus.

The latest…

On Friday 9 October, Rishi Sunak, announced that the JSS will be expanded to support businesses across the UK which are required to close their premises due to coronavirus restrictions, including those businesses which are required to provide delivery and collection services only (the “Additional Scheme”). This was in preparation for the new three-tier restriction system which the Prime Minister set out yesterday, which will see pubs, bars, gyms, betting shops and casinos in areas placed in the ‘very high’ category having to close for the foreseeable future.

The Additional Scheme will also commence on 1 November and will be available for 6 months, with a review to take place in January.

Businesses will only be eligible to claim under the Additional Scheme while they are subject to specific restrictions and where employees are off work for at least 7 days. Under this, the Government will pay two thirds of employees’ salaries (or 67%), up to a maximum of £2,100 a month. Employers will not be required to contribute towards wages and will only have to cover National Insurance and pension contributions.

In contrast to the CJRS, employers will not be able to make employees redundant or put them on notice of redundancy during a period in respect of which they are making a claim under the Additional Scheme.

Full guidance is to be published by the Government so please keep an eye out for this.

Sintons introduce new Debt Recovery pricing structure

Debt specialists at Sintons have introduced a new pricing structure, which makes it more cost-effective than ever for businesses and individuals to recover money they are owed.

The team is now operating a ‘no recovery, no fee’ service for its Letter Before Action, the initial letter of demand to the debtor, which removes any financial risk to the client for early-stage instructions.

Sintons, rated as one of the leading debt recovery teams in the North of England, has removed the fixed fees which were previously charged for this service in response to the widespread and growing issues of debt faced by so many people, particularly in light of the ongoing impact of COVID-19.

The law firm has introduced a number of support measures for businesses throughout the pandemic, to help them negotiate the unprecedented times which have caused financial hardship for so many, and its new debt pricing approach extends that even further.

Allison Thompson, head of the debt recovery team at Sintons, said: “Having worked with significant numbers of businesses and individuals over the past few months, we are well aware of the fact debts are on the rise, but resources are tight, so it may be that people feel they cannot pursue what they are entitled to. By removing our initial fixed fees and replacing them with a ‘no recovery, no fee’ model, we hope that those who are owed money can now proceed, confident there will be no financial risk to them for the Letter Before Action to be sent.

“As one of the most highly rated debt teams in the region, our experience and expertise is well known, and our standards of client service for each and every case we deal with are unrivalled. We as a firm are committed to supporting the business community in every way we can, particularly during these very difficult times, and we will continue to find new ways in which we can provide solutions to the issues we know people are facing.”

COVID-19 Q&A | Sintons | Further extension on protections for Tenants of Commercial Property

We previously published an article on the impact of The Coronavirus Act 2020 (the “Act”) on landlords of UK Commercial Property. One of the key aspects of the Act was the prevention of landlord’s re-entering premises or forfeiting leases due to non-payment of rent. Initially the Act stated that these provisions were to only last for a period up until 30 June this year, but this was subsequently extended, and the extended period was due to come to an end on 30 September.

In addition, landlords were only able to enforce Commercial Rent Arrears Recovery (“CRAR”) if there were 189 days’ worth of rent outstanding, meaning that CRAR was only available for arrears that had accrued before the Act came into force.

What has been announced?

On 16 September, “to stop businesses going under and protect jobs over the coming months” the Government announced that it will further extend the forfeiture and CRAR protections that have been afforded to tenants of commercial property. The extended deadline is now 31 December 2020.

In relation to forfeiture this means that a landlord will not be able to forfeit a commercial lease for non-payment of rent until 2021 at the earliest with there still being a potential for this date to be further extended in the future.

In relation to CRAR, for a landlord to exercise CRAR there will have to be at least 276 days’ or 366 days’ worth of arrears (depending on when the final quarter’s rent falls due). This extension means that again for a landlord to currently exercise CRAR the arrears must have begun before the Act came into force.

What next for landlords?

Whilst the extensions are intended to provide commercial tenants with breathing space and relief during a troubling time the further extensions will no doubt be cause for concerns for landlords who have seen tenants refusing to pay rent throughout this period. In certain cases this may even be contrary to the Government’s Code of Practice for commercial property during the pandemic which states that landlords and tenants “should act in good faith” and that, “tenants who are able to pay their rent in full should continue to do so”. Unfortunately, for landlords, whilst the extensions to forfeiture and CRAR are compulsory the Code of Practice is voluntary.

Some landlords may wish to take this opportunity to use arrears of rent that have accrued during this period as an opportunity to commence negotiation of  new arrangements with their tenants such as allowing rent free periods in return for lease renewals, payments of block rent in advance, reversionary leases or removal of tenant break options.

Finally, it is still worth noting that the additional extensions do not remove the landlord’s right to rent or other payments under the lease and therefore, whilst the landlord cannot re-enter or forfeit, interest will continue to accrue on rent that has not been paid and at the end of the extension the amount of arrears accrued will be an amount due to the landlord.

If you would like further information on the further extension of protections under the Coronavirus Act 2020, please contact Alex Wilkins or a member of the Real Estate Team at Sintons.

Ask the Experts monthly Q&A with Sintons’ Employment Team – episode 14

Today we recorded our ‘Ask the Experts monthly Q&A with Sintons’ Employment Team – episode 14’ – with Keith Land and Ailsa Hobson. These sessions came about due to the employment team here at Sintons having been inundated with COVID-19 and furlough questions following the introduction of the Coronavirus Job Retention Scheme and the ever changing government guidance.

Our sessions today covers the following topics:

  • The job support scheme
  • Agile working
  • Working from home – September 2020.

For your convenience we have also recorded this session as both a webinar and podcast, links to both are below.

Employment Q&A sessions extended

Employment specialists at law firm Sintons will continue to offer their expert advice via their popular Q&A sessions, with the initiative being extended into the COVID-19 post-lockdown period.

Businesses have experienced huge challenges in the past unprecedented six months, with many being forced to take measures to protect their future, including turning to the Government’s Job Retention Scheme to place employees on furlough leave.

The rights and obligations of businesses in such uncharted territory have often been unclear, with many business owners and employees alike having much uncertainty around their rights and obligations.

In response to this, Sintons’ employment team launched a weekly Q&A session, in which its team of specialists – led by Keith Land, one of the region’s leading employment lawyers – answered the questions submitted by businesses and individuals from across the country.

Sintons, known for its clear and direct advice, saw huge demand for its online sessions, with the employment team being widely praised for bringing much-needed clarity during such an uncertain time.

Although the country continues to emerge from COVID-19 lockdown, the challenges for businesses are still as relevant, with major challenges including the end of the furlough scheme, the resumption of office-based working and, where it has become necessary for some businesses, redundancy situations.

In response, Sintons will now hold a monthly Employment Q&A session, to continue to answer the pressing questions and address the latest Government-enforced changes and what they mean for businesses.

Keith Land, head of employment at Sintons, said: “We launched our Q&A sessions to try and help shed a bit of light into what was a completely unprecedented and fast-changing situation, which left many businesses feeling completely unsure about how to proceed. The response we got was brilliant, with people from far and wind contacting us with questions and passing on their gratitude that a resource like this was available.

“As the challenges for business are far from over, we will continue to support employers and employees in every way we can, and are very pleased to extend our Q&As. By continually talking to employers, we know the issues that are pertinent to them, and we understand the questions they want and need to be answered. We are proud of our reputation for delivering advice on the most complex of situations in a straightforward and understandable way, and we will continue to shed light on the very latest developments in the Government’s ongoing COVID-19 response for businesses.”

* The next employment Q&A session will be held on Friday 25th of September. To register attendance, or to contribute a question, please contact David Pritchard, head of marketing, on david.pritchard@sintons.co.uk or 0191 226 7802.

COVID-19 Q&A | Sintons | Wills, Trusts & Estates

During these unprecedented times, where the situation is changing on a daily basis, we are aware that individuals and business owners will have many questions and uncertainties about how these developments impact on them.

Here, through a series of Q&A with expert lawyers from across our firm, Sintons hopes to be able to answer some of those pressing questions, and provide some certainty and clarity for people who are unsure how to proceed.

My relative recently died and we are devastated by the will they left. Their will was from many years ago and we are certain it would have changed significantly if they had the opportunity to revisit it. Is there anything we can do to challenge it?

It is not possible for a disappointed beneficiary to challenge a will merely on the basis that it is outdated, or they believe that their relative intended to update their will but never got round to it. The executors have a duty to distribute the estate in accordance with the terms of the will, and cannot deviate from the deceased’s wishes, unless the beneficiaries agree to this.

There are, however, specific grounds which allow a person to challenge a will. These generally fall into the following categories:

  1. A lack of testamentary capacity;
  2. A lack of knowledge and approval;
  3. Undue influence;
  4. Fraud or forgery; and
  5. A lack of valid execution

If the challenge to the will is successful, the will in question is deemed to be invalid. This means that the deceased’s estate would then be distributed in accordance with any previous will. If the deceased did not make an earlier will then the estate would be divided in accordance with the statutory intestacy rules. A beneficiary should, therefore, carefully consider whether it is in their best interests to challenge a will because they may in fact be worse off under a previous will or under the intestacy rules.

Alternatively, if the will itself is valid, certain claimants may be able to bring a claim against an estate if they do not benefit under the will, or they benefit but not to a sufficient degree. Under the Inheritance (Provisions for Family and dependents) Act 1975 only certain individuals have standing to bring a claim and include, for example, spouses, children and those who cohabited with the deceased for at least 2 years prior to their death. Those family members who are eligible to bring a claim, will have to prove that they have not been left reasonable financial provision under the will. Various factors would be considered such as the size of the estate, the financial needs and resources of the beneficiaries and any obligations or responsibilities the deceased had towards the claimant.

Sintons have a specialist contentious probate team who have a wealth of experience in advising individuals, professional executors and charities on both making and defending claims against an estate.

COVID-19 Q&A | Sintons | Wills, Trusts & Estates

During these unprecedented times, where the situation is changing on a daily basis, we are aware that individuals and business owners will have many questions and uncertainties about how these developments impact on them.

Here, through a series of Q&A with expert lawyers from across our firm, Sintons hopes to be able to answer some of those pressing questions, and provide some certainty and clarity for people who are unsure how to proceed.

I am keen to plan for the future of my family and want to protect my estate for future generations as much as possible. My estate is of significant value – what steps do I need to take?

There are many reasons why you should seek advice regarding succession planning, namely to ensure that your estate is preserved as far as possible for future generations of your family.

The immediate step is to ensure that you have a will in place, and that it is up to date. If your financial or family circumstances have changed since you last made your will, you should review it with your legal advisor to ensure that it still works for your circumstances. The rules regarding inheritance tax have changed significantly in the last 15 years, and many couples who are married or in a civil partnership are particularly encouraged to consider their wills in light of these changes.

Many clients are becoming increasingly concerned about the need to protect their estate from future residential care fees. Of greatest concern is the need to preserve the family home which is, for many, the most valuable asset in the estate. A popular solution for many clients is the use of a trust within their wills. This means that the half share in the property owned by the first to die will pass into the trust and cannot be assessed by the Local Authority for care home purposes should the survivor be in or later move into residential care. This can be a very effective way of preserving the property against future care home fees but, like with any trusts, the advantages and disadvantages should be discussed with a professional to ensure it is right for you.

You may wish to give away your home to your children or grandchildren during your lifetime by way of an outright gift or by using a trust. It is very important that you seek legal advice before taking any steps to gift your home. As well as hidden taxation consequences, any lifetime gift may be deemed to be a deliberate deprivation of assets by the Local Authority. This essentially means that if you have given away assets for the sole purpose of avoiding the payment of privately funded care fees, you may still be deemed to own the asset in question when the Local Authority are carrying out a funding assessment. We can ensure that you are fully informed of the merits of any lifetime gifting so that you can understand the potential implications for you and your family.

If you have young children or grandchildren you may wish to start providing for them now rather than on death. To ensure that your wealth is preserved for their benefit, and their benefit only, you could consider setting up a trust. Trusts for young children can ensure that the money is managed and invested for the benefit of young children, particularly if you are concerned about their maintenance and education. As with most things, there are taxation consequences in setting up trusts so it important you consider these carefully with your legal advisor.

Finally, if your estate is of significant value we can advise you on your potential inheritance tax liability and the options available for you to reduce any tax liability. This may involve discussions regarding lifetime gifting or use of inheritance tax exemptions.

COVID-19 Q&A | Sintons | Wills, Trusts & Estates

During these unprecedented times, where the situation is changing on a daily basis, we are aware that individuals and business owners will have many questions and uncertainties about how these developments impact on them.

Here, through a series of Q&A with expert lawyers from across our firm, Sintons hopes to be able to answer some of those pressing questions, and provide some certainty and clarity for people who are unsure how to proceed.

Q – I do not have a will but I have one relative to leave things to, my brother, so I am presuming my estate would pass to him anyway. Is this the case?

A – There is a common misconception that, if a person dies without a will, their estate will pass to their “next of kin”. However, this is not a legal term. In fact, where a person dies without a will, they are deemed to die “intestate”. Their estate will be divided in accordance with a set of strict rules which are set out under the Administration of Estates Act 1925.

The rules provide a list of individuals who may benefit from an intestate estate. The highest living relative in the following list will take priority:

  1. Spouse or civil partner;
  2. Children/grandchildren/great grandchildren;
  3. Parents;
  4. Siblings;
  5. Half siblings;
  6. Grandparents;
  7. Uncles and aunts;
  8. Half uncles and aunts.

So, if the deceased was married or in a civil partnership at the date of their death, their spouse or civil partner is first in priority to receive the estate. However, there is often a mistaken belief that a spouse or civil partner will automatically inherit the whole estate from the deceased. This is true for estates worth less than £270,000. However, where the estate is worth more than this, the surviving spouse or civil partner will receive the first £270,000 and the deceased’s personal chattels. They will also receive half of the remainder of the estate, with the other half being divided equally between the deceased’s children. This is a rule which catches many families out.

If a relative dies before the deceased but leaves surviving children, those issue will take their deceased parent’s share of the estate. For example, if the deceased’s sister has predeceased them, any children she has living at the deceased’s death (that is, nieces and nephews of the deceased) would instead inherit the estate in equal shares.

The intestacy rules can cause an undesirable distribution of the estate, particularly where families have fallen out. This is because all living beneficiaries within a category are entitled to a share of the estate. So, if the deceased is survived by a brother and sister, even though they may have been estranged for many years, they will both be entitled to half of the estate.

As the intestacy rules date back to 1925 they do not necessarily reflect modern society. There is no provision for unmarried partners, nor for step-children. It can cause a great deal of upset where a person dies without a will and the rules do not distribute the estate the way in which the family expect it would be. It can also lead to lengthy and costly disputes between family members as to who should receive the estate.

Even if you believe that the intestacy rules reflect your wishes anyway, it is still important to make a will. It can make the administration of the estate much easier, and will ensure that there can be no doubt as to who should benefit from your estate.

COVID-19 Q&A | Sintons | Debt Recovery

During these unprecedented times, where the situation is changing on a daily basis, we are aware that individuals and business owners will have many questions and uncertainties about how these developments impact on them.

Here, through a series of Q&A with expert lawyers from across our firm, Sintons hopes to be able to answer some of those pressing questions, and provide some certainty and clarity for people who are unsure how to proceed.

Q – My business is owed money by a customer and despite numerous approaches, we have not been paid. I had always considered legal action as a last resort, but at what point do you think that should become an option?

A – Unpaid invoices should be chased without any hesitation.  As soon as an invoice falls outside of your payment terms you should be contacting the debtor to request payment.  You can provide for an additional time to pay subject to negotiation but always remember that any additional delay may impact your chances of recovery.  If you are considering legal action there are specific pre-action protcols which must be followed before commencing formal legal action therefore it is imperative this process be commenced as soon as possible to provide the best chance of recovering the debt.

Q – I am owed money by a friend. I have recently lost my job and need this money to be repaid so I can support my family. My friend will not respond to me and I feel desperate. What can I do to quickly get this money back?

A – Whenever you loan money always ensure that the terms of the loan are clear for both parties.  Never loan money without a clear understanding of when repayment of the loan is expected.  Even in the cases where it is a loan between friends on good faith, we would suggest you confirm the terms of the loan agreement in writing (email will suffice).  Before commencing any formal legal action to recover the loan, ask your friend whether they are in a position to repay the loan in full, and if not, whether they are able to commit to repay the loan by way of instalment payments.  Where possible have any proposal and exchange between yourselves in writing (text or email).  Any written response from your friend accepting the debt, will assist you if formal proceedings are necessary at a later stage.  It is natural to want to maintain the friendship if possible but, all too often we see friendships end abruptly in these situations.

Ultimately, successful recovery depends on your friends’ personal financial circumstances and their ability to repay the loan.  If their own financial position is precarious and they have no means to pay, then you are unlikely to recovery the loan.  However, it is not unusual to see cases where the friend has the ability to pay but chooses to delay repayment for whatever reason.  Do not delay in demanding repayment and maintain correspondence with your friend.  If you feel that there is no more that you can to do recover the loan, then you should seek legal advice.  In these situations, our experience is that the ‘creditor who shouts loudest gets paid first’!

COVID-19 Q&A | Sintons | Debt Recovery

During these unprecedented times, where the situation is changing on a daily basis, we are aware that individuals and business owners will have many questions and uncertainties about how these developments impact on them.

Here, through a series of Q&A with expert lawyers from across our firm, Sintons hopes to be able to answer some of those pressing questions, and provide some certainty and clarity for people who are unsure how to proceed.

Q – I run a business and am owed money by a company I have heard is struggling. How do I collect my debts quickly to recover what I am owed?

Enforce your payment terms strictly. Devise a step by step plan as part of your credit control and you can always include a telephone call a few days before, to prompt payment by reminding them that payment is due.

Consider whether your customer is someone you want to continue to do business with or someone with whom you have a long-standing relationship. If so, it may be worth taking the time to make a phone call and understand what is happening in their business before sending payment demands. Consider agreeing a repayment plan with the customer to repay the invoice.

If you have not been paid on time, then you do need to act quickly. Adhere strictly to your payment demand process and keep a careful note of all correspondence and telephone conversations with the debtor. You can send more than one payment demand, but always remember that with each demand, you are providing the debtor with more time to avoid payment.

For all your efforts, there will always be a customer who either can’t pay or is simply delaying payments to manage their own cashflow. Determining which your customer is, is the key in acting appropriately.

Q – I have a great relationship with one of my clients but they have not paid my most recent invoice. It is now several months overdue. I hope to continue to work with them, but need to be paid for what I have done. How can I go about claiming a debt while retaining a relationship?

A – Maintain communication with your clients – it is critical to maintain a good working relationship at any time but particularly now.  Take time to make a phone call to understand their position in the current situation and what impact the Coronavirus is having on them.

You will have genuine clients who still want to do business with you, even though they have unpaid invoices.  In that situation, consider agreeing a payment plan for their unpaid invoices and any further goods supply on a pre-payment basis.    Paying you a fixed monthly sum will possibly assist the client to better manage their cashflow and it will ensure you get paid!

In these difficult times it may be useful to review credit limits and where possible, payment arrangements for all your clients.  Depending on what sector you and your clients operate in, consider whether you can review your payment terms to payments on account, payment on delivery, or offer instalment payment plans for goods.   Further steps can be considered to prompt payment of your invoice on the due date ie,  a gentle reminder by way of an email or a phone call a few days before payment is due just to remind your client that the payment date is looming.  Most clients would not be offended by such a call and would usually welcome the reminder.

* For advice on this or any other debt-related matter, please contact Allison Thompson, head of debt recovery at Sintons, on allison.thompson@sintons.co.uk or 0191 226 3719.

The importance of succession planning for your family farm

The COVID-19 pandemic and the uncertainty and devastation it has caused – for families, businesses and the whole economy – has resulted in a significant rise in the numbers of people looking to make plans for their future.

The unprecedented circumstances of the past few weeks have wreaked havoc across the country, with the numbers of COVID-19 fatalities tragically rising by the day and growing levels of businesses battling for survival. These have been truly traumatic times indeed.

However, as we now emerge from lockdown and look at returning to some form of ‘normality’ (whatever that will look like in the post-pandemic period) the focus for many has been shifted from focusing on the immediate future to now also include planning for the longer-term.

Succession planning for the future of the family farm or business has always been of the utmost importance, but many people are now taking action and putting provision in place for such time as they are no longer here. Certainly by making plans now, there are significant tax efficiencies that can be made, particularly with regard to Inheritance Tax (IHT).

A good place to start is by making a will. By doing so, you can help avoid potential disputes that may arise through the rules of intestacy (the rules that apply to your estate if you die without making a will). Under these rules, if you are survived by, for example, your spouse and children, your spouse will be entitled to receive the first £250,000, your personal possessions and half of whatever is left. Depending on the value of your estate, this could leave the spouse vulnerable if they do not inherit the whole estate and attract an IHT liability as the assets passing to the children will not be covered under the spousal exemption rules.

Furthermore, if some of the children are involved in the family farming business, and others are not, it could lead to disputes within the family, especially if some of them need to raise money to buy out their siblings who do not an interest in the future of the farm.

Another important factor in making a will is that you can have the opportunity to review the structure of the business and legal documents behind how the farm is operating. For example, there may be partnership deeds or shareholder agreements in place, or tenancies and grazing licences, which you can examine and revisit as necessary, particularly those which have been in place for some time.

By planning for your future, you can also review the IHT position of the farm and whether your interest would qualify for Agricultural Property Relief (APR). APR is a generous relief available if certain conditions are met. APR is a relief available on the agricultural value of agricultural property. If the conditions are met, APR can minimise the amount of IHT payable on death.

Briefly, APR is available on transfers of land occupied for the purposes of agriculture, together with appropriate buildings and farmhouses used in conjunction with that land. The property in question must have been either occupied by the owner for the purposes of agriculture for two years prior to the transfer, or owned by you for seven years and occupied by someone else for the purposes of agriculture throughout that period

It is often assumed that your farmhouse will automatically qualify for APR if the land is being farmed, but if you are no longer able to farm through ill health or retirement, this can present problems. Similarly, if you are living in the house, but you have let all of your land out to tenants, this could impact on the level of IHT payable, although through careful financial planning this can be mitigated as much as possible.

Any grazing licence arrangement that you have should also be considered to ensure the conditions for occupation are met. Although the land is grazed by someone else, you will want to ensure you are still deemed to be the occupier for the land to qualify for APR. Retaining responsibility for the maintenance and repair of the land is also essential to prove the conditions for occupation are met.

These past few months have been difficult for us all, but the renewed focus it has placed on the importance of future planning has been one positive to emerge. By putting together a succession plan for you and your family, which is then revisited and updated as necessary, this can ensure your farm passes as you wish after your death with your family being able to benefit from the maximum tax efficiencies.

Sintons has advised families on succession planning for over 120 years, and has looked after the futures of several generations of farming families across the North. Please speak to us for any support you may need in putting these vital plans in place.

* Tom Wills is head of agriculture and estates at Sintons and a Fellow of the Agricultural Law Association. To speak to him about this or any other matter, please contact Tom on tom.wills@sintons.co.uk or 0191 226 3796.

Recovering debts amid the coronavirus pandemic

Allison Thompson, head of debt recovery at Sintons, shares her top tips for collecting debt during unprecedented times.

Even before lockdown hit the UK on March 23, the economic conditions had been difficult for some time. Against a backdrop of many months of Brexit negotiations and updates, now we faced yet more challenges for business as countless were forced to scale back or shut down completely.

Chancellor Rishi Sunak announced various steps and measures which have been taken to support and minimise the financial effects of the coronavirus on UK businesses, but despite this, many will undoubtedly face financial hardship and possible collapse.

These are exceptional, unprecedented times and we are frequently asked whether it is appropriate for a business to continue to collect their debts in the ‘normal’ fashion.

It is likely to be the case that some businesses will be unable to repay their debts in full at the moment, but it is vital that companies take the necessary steps to shield their cash flow, sooner rather than later, and businesses should not be discouraged from acting as they usually would.

The global economy has slowed down and we may be heading for an economic recession. Cases of debt recovery may increase, but sadly with that, insolvent debtors will also increase. It  is vitally important to take the necessary steps to get to the front of the queue of creditors.

Here are some of Sintons’ top tips:

Attempt to resolve any disputes as soon as possible: It will save everyone time and money in the long run. There is a chance that your debtor will still have some reserves to pay you now, rather than in a few months.

Demand a written payment plan: Your credit control process is important and especially now during the current coronavirus situation. Ask your debtor to send you a proposal on how they intend to pay. If you then find yourself in the unfortunate position of having to consider using the legal route to recover the debt, it helps to have an acknowledgment of the debt.

Stay in touch: Financial developments in the past few weeks have been so rapid that the creditworthiness of many businesses have completely changed. It is therefore important that you remain in contact with your debtor, and carefully monitor your debtor’s situation on a daily or weekly basis.

Consider demanding additional securities: If your debtor is unable to meet its payment agreement, it is worth investigating whether they can provide you with securities. A guarantee from the director or board of directors, or even
a form of security from a third-party, may be possible.

Force majeure: Your customers may seek to rely on a force majeure clause in the contract to evade payment. Coronavirus is undoubtedly presenting businesses with unique and new challenges, however debtors are not able to rely on a force majeure clause as a matter of right, and it is important that you seek legal advice when confronted with this from your customer.

Contact Allison at allison.thompson@sintons.co.uk or 0191 226 3719.

Ask the Experts weekly Q&A with Sintons’ Employment Team – episode 12

Today we recorded our ‘Ask the Experts weekly Q&A with Sintons’ Employment Team – episode 12’ – with Ailsa Hobson and Angela Carver.

These sessions came about due to the employment team here at Sintons having been inundated with COVID-19 and furlough questions following the introduction of the Coronavirus Job Retention Scheme and the ever changing government guidance.

The team has also given much thought as to what work may look like following the relaxation of the current restrictions.

For your convenience we have also recorded this session as both a webinar and podcast, links to both are below.

Changes to Capital Gains Tax from 6th April 2020

As lockdown measures are eased, and the property market returns to normality, it is essential that those entering into property transactions are aware of changes that have taken effect over the past few months.

As of 6th April 2020, individuals will now have a period of 30 calendar days from the date of completion in which to report and make payment of any Capital Gains Tax (“CGT”) due on the sale of residential property within the UK. For the most- part, this will only affect those selling buy-to-let properties, holiday homes, and any home which has not been occupied by the selling individual during their whole period of ownership, as Private Residence Relief will usually apply to an individual’s main residence.

The new rules are only applicable where a legally binding contract for sale is completed on/after 6th April 2020. Any contracts completed prior to this date are governed by the old rules, regardless of whether completion of the sale occurs after the date of the changes.

The new position is vastly different to the old regime whereby CGT was recorded on an individual’s personal tax return, and any tax was payable on 31st January following the end of the tax year, meaning that payment could fall due for CGT anywhere between 10 – 22 months after the completion of a sale/disposal.

In respect of transactions now completed after 6th April 2020, any CGT liability should be reported within 30 days of completion.  Individuals will face late filing penalties for non-compliance with the new rules and interest will accrue on any amount of tax which remains unpaid after the 30-day period.

The payment of CGT in respect of residential property disposals only will not now necessitate an annual return submission where reported within the 30-day deadline. However, it is expected that any CGT liability for these transactions should still be reported in an individual’s annual tax return where they are already required to submit a return, in addition to any report previously made.

HMRC have allowed a grace period for those transactions completed between 6th April and 30th June, and reported up until 31st July 2020, meaning that any transactions falling within this period will be exempt from penalties for late reporting and/or payment. There will be no grace period for transactions completed on/after 1st July 2020 and therefore it is now essential that potential liability for CGT is considered at the earliest possible stage in any transaction.

The full regulations can be found at gov.uk, but for any uncertainties or clarification, specialist advice must be sought to ensure compliance with the new rules.

Ask the Experts weekly Q&A with Sintons’ Employment Team – episode 11

Today we recorded our ‘Ask the Experts weekly Q&A with Sintons’ Employment Team – episode 11’ – with Keith Land and Catherine Hope.

These sessions came about due to the employment team here at Sintons having been inundated with COVID-19 and furlough questions following the introduction of the Coronavirus Job Retention Scheme and the ever changing government guidance.

The team has also given much thought as to what work may look like following the relaxation of the current restrictions.

For your convenience we have also recorded this session as both a webinar and podcast, links to both are below.

A Q&A with Sintons and Knight Frank

Senior Associates Louise Kelly and Danielle Dale from the Real Estate team at Sintons and Ashleigh Tokarski, Associate Surveyor with Knight Knight in Newcastle, who specialises in residential property development, recently recorded a joint Q&A podcast.

This podcast discusses the effect of COVID-19 on the development market with the aim of assisting clients and developers in these challenging market times, with the continuing political and economic pressures around the property market.

Virtual witnessing of wills

The past few months of COVID-19 lockdown have seen a huge surge in demand from people wanting to make wills, while also presenting unprecedented challenges in enabling them to do so.

The tragedy of the pandemic and its continually rising death toll has meant that many people have turned their attention to planning for the future and putting provision in place to protect their family for such time as they are no longer able to. The number of wills being made has increased significantly during this period as a result.

However, the process of making a will so that it is legally binding and enforceable is that it must be done ‘in the presence of’ at least two witnesses (Wills Act 1873, s. 9(c)). The social distancing measures which have been in place since March has presented many challenges in being able to achieve this, particularly for those people who were shielding, and modern-day technology and innovation have really come to the fore during this time.

The concept of using Zoom or FaceTime or other such platforms in witnessing wills was barely imaginable at the time Parliament enacted the Wills Act in 1837, yet the efficacy of such technology has now been acknowledged by the Government confirming that video-witnessed wills are now legal.

This is a very welcome development and one which will result in the process of making a will easier for those who cannot leave the house, or continue to wish to shield amidst the ongoing pandemic.

Two witnesses will still be required, which is a vital safeguarding measure, but this can be done via video platform, providing the quality and sound of the video is such that the witnesses can see and hear what is happening.

This landmark change in the law will be made through new legislation in September, although it will be backdated to January 31, 2020, which was the date of the first confirmed Coronavirus case in the UK.

These changes will remain in place until at least January 31, 2022, after which time the process will revert to the traditional means of making a will, which requires the physical presence of witnesses.

Making a will is one of the most important things you can do to protect the future of your family, and ensure your wishes and plans for them will be enacted in your absence. By making use of technology to assist during these current turbulent times, we hope this will enable many more people to carry out their future planning.

Please contact our award-winning team at Sintons for assistance in preparing your will, or updating an existing will. We will talk you through your options and support you fully with the process.

* Michael Cattermole is a solicitor in the wills, trusts and estates team at Sintons. To speak to Michael, please contact him on michael.cattermole@sintons.co.uk or 0191 226 3791.

Planning Use Class changes – flexibility going forward?

Last week the Government announced sweeping changes to the Use Classes planning system in England, which has been well established for over 30 years. The changes which take effect on 1 September 2020, subject to a transitional period to 31 July 2021, are substantial to reflect the increasing diversity of town centres and are aimed at providing flexibility to businesses, particularly in response to the economic impact of the pandemic.

The current system has four main Use Classes categories; Class A – retail, food and drink, Class B – offices and other places of work, Class C – places of residence and Class D – institutions and leisure uses. The result of the changes will be out with the individual commercial classifications of Classes A1, A2, A3 and B1 and in with a new use class, to be known as Class E ‘Commercial, Business and Service’. Class E will cover a range of uses including retail (A1), cafes and restaurants (A2), financial and professional services (A3), offices (B1), indoor sport and recreation, medical or health services (to visiting members of the public), crèche, day nursery and day centres (D1 and D2).

With such a wide breadth this has, effectively, reduced the planning controls to the position where the ‘market will decide’ what is suitable and commercially viable for the high street. This flexibility is likely to be welcome to many town centres owners, making it easier to obtain a tenant of an empty retail unit for an alternative Use Class E use without the need for planning permission. However this could result in the dilution of areas that were, previously, allocated as high street retail shops with former shop units being converted into non-retail functions.

The changes are likely to have a wider impact on the property market for landlords and tenants, with many rent reviews based on comparable evidence of specific uses, linked to a designated Use Class. The breadth of Class E could lead to some unexpected results. Outside the planning regime tenant’s may want to consider whether they want to vary the use limitations in their existing leases, which may not provide them with the flexibility proposed by the legislation.

However, there are some noteworthy exclusions from Class E, which have been moved to the ‘sui generis’ Class, meaning that specific planning permission will need to be obtained. The exclusions include drinking establishments (formerly A4), ‘hot food takeaways’ (A5) and cinemas and bingo halls (D2). With growing concerns about obesity in the population the hot food take away exclusion was expected and the removal of pubs and cinemas is to ensure long term protection of premises that have substantial community value.

There are to be new Use Classes F1 and F2; Class F1 – schools, libraries and galleries which are regularly in the wider public use (former D1) and Class F2 – ’local community uses’ which is to include uses such as swimming pools, skating rinks and areas for outdoor sports (former D2) and local community space. Some areas are to remain materially unchanged; Class C – residential purposes, general industrial (Class B1) and storage and distribution (Class B8).

Operationally flexibility is welcome in these times of uncertainly, removing constraints to support and promote innovation and to revitalise high streets. However, as a cautionary comment, due to the dilution of control and concerns about the mix of uses in certain areas it may transpire that Councils will use statutory powers to impose limitations, like Article 4 Directions which remove permitted development rights. Hopefully those powers will only be used sparingly, where commercially appropriate. Over the next few months it certainly seems to be one of watch this space.

Click here to view our use classes guide.

Ask the Experts weekly Q&A with Sintons’ Employment Team – episode 10

Today we recorded our ‘Ask the Experts weekly Q&A with Sintons’ Employment Team – episode 10’ – with Ailsa Hobson, Angela Carver and Catherine Hope.

These sessions came about due to the employment team here at Sintons having been inundated with COVID-19 and furlough questions following the introduction of the Coronavirus Job Retention Scheme and the ever changing government guidance.

The team has also given much thought as to what work may look like following the relaxation of the current restrictions.

For your convenience we have also recorded this session as both a webinar and podcast, links to both are below.

Settlement Agreements

Associate Catherine Hope from the Employment department at Sintons recorded a podcast today concentrating on Settlement Agreements.

Click the link below to listen to the full podcast.

COVID-19 Q&A | Sintons | Wills, Trusts & Estates

During these unprecedented times, where the situation is changing on a daily basis, we are aware that individuals and business owners will have many questions and uncertainties about how these developments impact on them.

Here, through a series of Q&A with expert lawyers from across our firm, Sintons hopes to be able to answer some of those pressing questions, and provide some certainty and clarity for people who are unsure how to proceed.

Q – I have lost a family member to COVID-19 very suddenly, and we did not get the opportunity to establish whether they made a will. How do we establish whether a will is in place and what do we do if one does not exist?

A – | Unfortunately, there is no definitive place to search to establish whether a person made a will before they died. Family members are often required to undertake a lot of investigative work to establish whether there is a will. Nevertheless, it is important that these steps are taken. If an estate is incorrectly administered on the assumption that there was no will, the administrators could potentially be found to be in contempt of court.

As a starting point, ask your family members whether they think the deceased made a will. A will is a document which many people prefer to keep private, and there is certainly no obligation to tell people if they are mentioned in a will or not. Nonetheless, many people tell at least one family member that they have made a will, especially if that person has been appointed as executor. They may have information as to where the will is held.

The next step is to conduct a thorough search of the person’s home and anywhere else they might keep personal documents such as a relative’s house or their place of work. You may find the will itself or, more likely, a copy of the will.

Next, you should establish whether your family member used a solicitor to make a will. Look for any letters from a solicitor which may relate to a will or anything else such as the sale of a house. Very often clients will use a firm of solicitors for multiple services, so check with them if they do hold a will even if this is not mentioned in correspondence. You may also wish to check the deceased’s purse or wallet, as they may keep a card specifying where the will is held.

If you cannot find the name of the solicitors in the deceased’s paperwork, you may wish to contact firms in the area where they lived to enquire as to whether they hold a will.  Whilst this may be time consuming, it will help you to eliminate firms if nothing else. You could also place an advert in a local newspaper asking for anyone who has information about the will to contact you.

In a small number of cases, an original will may be held at the deceased’s bank or building society, possibly with the title deeds to their house. Banks used to store original wills, particularly where they were the executors of the estate, though this is now much less common in practice.

Finally, you may wish to conduct a search through Certainty the National Wills Register. For a small fee you can search a database of over 8.4 million wills to check whether your loved one’s will has been registered with them. Certainty do not hold the actual will itself, but they alert the solicitor, bank or other third party that you are looking for a will. It is currently not compulsory in England and Wales to register your will on a database so the search is not conclusive but may help if you have not otherwise succeeded in finding a will.

If you have exhausted all possible avenues and still cannot find a will, then you may proceed to administer the estate on the basis that the deceased did not leave a will. The deceased will be deemed to have died “intestate”. Statutory intestacy rules stipulate who is entitled to deal with the estate, which broadly speaking is the closest living family member (for example, the surviving spouse or children). However, you should always seek legal advice if you are dealing with an intestacy because the rules can be complicated to follow. Administrators must make all reasonable enquiries to try to find a will as set out above. If not, then this could lead to a potential lengthy and costly dispute, particularly if a will is later found.

Ask the Experts weekly Q&A with Sintons’ Employment Team – episode 9

Today we recorded our ‘Ask the Experts weekly Q&A with Sintons’ Employment Team – episode 9’ – with Ailsa Hobson and Catherine Hope. These sessions came about due to the employment team here at Sintons having been inundated with COVID-19 and furlough questions following the introduction of the Coronavirus Job Retention Scheme and the ever changing government guidance.

The team has also given much thought as to what work may look like following the relaxation of the current restrictions.

For your convenience we have also recorded this session as both a webinar and podcast, links to both are below.

Settlement agreements – what are they and how can they help?

What’s in a name?

Settlement agreements in the employment context (formerly known as compromise agreements) are legally binding agreements which can settle most statutory employment law claims, including unfair dismissal. They are commonly used as a means of bringing an employment relationship to an end and settling any employment claims that an employee might have.

They will ordinarily involve some form of incentive for an employee, usually in the form of a financial sum, but can include certain other benefits, in return for the waiver of the right to bring a claim on an employee’s part.

Why would you use one?

Settlement agreements are often used to settle disputes on termination of employment. However, this is not always the reason and they are often used simply for an employer’s comfort, where an employee may not have asserted a particular statutory right and there is no dispute as such, but there is an agreed exit and an employer wishes to close off the risk of any future litigation. For example, in a redundancy situation, the handling of a consultation process can be complex and time consuming, particularly if there are large scale redundancies. It is therefore common for employers to offer enhanced packages to affected employees if they are able to do so, in return for those employees signing a settlement agreement. In addition, if an employee has accepted voluntary redundancy, with an enhanced package, an employer will ordinarily make signing a settlement agreement a condition of the voluntary offer. This will be particularly important if a full and fair consultation process does not take place as a result or is cut short for any reason. Although the redundancies may be legitimate and reasonable in all of the circumstances,  a settlement agreement can give piece of mind and ensure that an individual cannot still try and bring a claim, if they were, for example, to latterly change their mind.

Settlement agreements will often be an attractive option for employers and employees as they can provide resolution and allow everyone to move on. Employees may also prefer this in comparison to a lengthy consultation process which can be emotionally draining. Confidentiality provisions ordinarily included in settlement agreements can also avoid the wider workforce being affected.

What you need…

For a settlement agreement to be valid, the following conditions must be met:

  • the agreement must be in writing;
  • the agreement must relate to a “particular complaint” or “particular proceedings”;
  • the employee must have received legal advice from a relevant independent adviser on the terms and effect of the proposed agreement and its effect on the employee’s ability to pursue any rights before an employment tribunal;
  • the independent adviser must have a current contract of insurance, or professional indemnity insurance, covering the risk of a claim against them by the employee in respect of the advice;
  • the agreement must identify the adviser; and
  • the agreement must state that the conditions regulating settlement agreements under the relevant statutory provisions have been satisfied.

If an agreement fails to comply with any of these requirements it will be invalid and unenforceable.

Where to start…

Settlement agreements are often used by employers where they are in dispute with an employee and are looking to settle the matter quickly and avoid costly litigation. Provided there is a recognised ‘dispute’ between the parties, raising the possibility of settlement can be done on a “without prejudice” basis. This means that the existence and contents of the negotiation will ordinarily be protected from being disclosed at court or in the Employment Tribunal if negotiations break down. When negotiating a potential settlement sum, communication should therefore be stated to be “without prejudice”.

Sometimes in litigation, it might be appropriate to rely on an earlier offer of settlement in support of a costs application in the event that negotiations fail and an employee brings a claim which is either successfully defended or the remedy awarded is less than the amount that was offered. In these circumstances, offers should be marked “without prejudice save as to costs”. Offers should also make it clear that they are subject to terms of the settlement being agreed. As such, it is also important to mark any settlement correspondence “without prejudice and subject to contract”. This will ensure there is no binding agreement until all of the terms of the settlement agreement are agreed and signed.

It is important to note that the “without prejudice” protection only applies if the communication is a genuine attempt to settle an existing dispute, and in a lot of settlement agreement discussions this will not be the case because the dispute may not yet have arisen or been brought up by the employee. To address that gap, amendments were made to the Employment Rights Act 1996 (“ERA”) in 2013 to allow for “protected conversations” to take place in pre-termination settlement negotiations. The changes, which were introduced by new section 111A of the ERA 1996, mean that employers are now able to engage in off the record conversations with employees in relation to the termination of their employment without fear of this being disclosed in the Employment Tribunal.

However, conversations are only protected in relation to unfair dismissal claims. If there is the potential for a discrimination claim, the protection under section 111A cannot be relied upon. In a worst case scenario, an employee receiving an offer to terminate their employment in return for a settlement package, could, in such circumstances, use the fact that  the offer has been made as the foundation of, or part of, a discrimination and/or constructive unfair dismissal claim. Employers should therefore consider whether discussions will be protected before making an offer. That being said, it will still always be prudent to label settlement correspondence “without prejudice” and mark it as covered by s.111A ERA 1996.

The amount…

What will be acceptable to an employee will very much depend on the type of claim (if any) they could bring, the strength of the claim, and the employee’s role and contractual benefits. Consideration needs to be given to an employee’s minimum entitlement from a statutory and contractual perspective and then what can be offered as an enhanced element. There will need to be some form of incentive for an employee to waive their right to bring a claim. If an employee is not being compensated reasonably this will come to light when they receive independent legal advice and their advisor will likely advise them to negotiate a higher figure or simply not enter into the agreement.

Employers should also consider whether there are any non-financial benefits that could be offered and would be attractive to an employee. This could, for example, transferring ownership of a company phone or car, a reference, or allowing certain benefits to continue for a certain period of time post termination.

Tax implications

Employers will need to consider the structure and tax implications of any payment offered. Payments of up to £30,000 paid to the employee as compensation for the termination of employment (including redundancy payments) can be paid tax free. Payments that are due under the employment contract, such as salary, cash benefits and notice pay, will be subject to tax and National Insurance contributions. Previously the taxation of notice payments would depend on whether there was a contractual entitlement to make a payment in lieu of notice. However, now, any payment that reflects a period of unworked notice is taxable. If this is not taxed at source, then it will be due as ‘post-employment notice pay’ and a slice of any termination payment will be taxed accordingly.

Other matters covered…

As well as setting out agreed terms in relation to financial sums to be paid, settlement agreements ordinarily also set out agreed terms in relation to company property, confidentiality, confirmation of any on-going restrictive covenants and in some cases a reference so they can be useful from a commercial perspective.

The Employment team at Sintons is experienced in drafting, reviewing and advising on Settlement Agreements, as well as negotiating terms in relation to the same. If you have any questions, please contact Catherine Hope or another member of the team.

Post Purchase Property Disputes

With the easing of the Government restrictions the property market is back in operation. Individuals and organisations can now view properties and proceed with purchases once more.

This serves as a timely reminder that issues can arise from purchasing a property, many of which are not discovered until months or even years after completion. The good news is that there are often legal remedies available and Sintons can advise you of your options and whether you have a worthwhile claim to pursue.

Below is an overview of some of the potential issues that could affect you post purchase of a property.

Misrepresentation

The seller of a property is obliged to complete honestly and accurately the Property Information Form (TA6), and answer any questions put to them to assist the buyer with the purchase of the property. Questions such as whether a property complies with building regulations, whether a property has ever flooded and whether there have been any disputes with neighbouring properties, to name a few. If you find that the seller has provided any information or answers that are not true, it can dramatically alter your enjoyment of your property and you may be able to sue them for misrepresentation. This could involve rescinding the contract and being put back into the position before it was made or alternatively recovering damages.

Surveyor Negligence

A prudent buyer will often arrange to have a survey completed on a property before committing to a purchase. This provides them with peace of mind and an understanding on whether there are any issues with the property that will affect their decision continue with the purchase. Serious issues that are discovered may result in the buyer seeking to renegotiate the purchase price or even walking away from the transaction altogether. This is only possible if the buyer has been provided with the relevant information and where a surveyor has missed something they ought to have brought to your attention, they may have been negligent. If you discover any issues with the property that you were not notified of within any report, you may be able to sue your surveyor for negligence and recover damages.

Solicitor Negligence

Solicitors help guide buyers through the property transaction. Part of their role is to advise the buyer of any issues that may affect the property they are purchasing. Many properties have titles which contain covenants or easements that could affect how the property and land can be used. This can include rights other people have over the property or onerous obligations that might be imposed upon the buyer. It is important that the implications of issues such as these are notified to the buyer to aid in the decision-making process. If you find that your property is adversely affected and your solicitors have failed to inform you, it may be possible to sue them for negligence and recover damages.

The above is not an exhaustive list but provides examples of the types of issues you may experience after purchasing a property. If you have relied upon a representation of a seller that was not true or if you have been let down by a professional, it is important you seek legal advice to understand your options. For further information or assistance please contact Adam Hutton or a member of the Dispute Resolution Team to see how we can help.

Sintons leads way in remote arbitration

Law firm Sintons has become a regional leader in the use of remote arbitration, which has allowed clients to achieve much needed conclusions to their family issues despite the COVID-19 lockdown.

The specialist family team has encouraged parties to agree to arbitration – a form of alternative dispute resolution in finances upon divorce in and cases regarding child arrangements – for some time, as a means of avoiding the traditional costly and lengthy court process.

However, against the current backdrop, in which social distancing continues to be enforced and with the court struggling as a consequence, delays of many months are expected. As a result, Sintons has turned to remote arbitration to support clients in progressing their matters as quickly and efficiently as possible.

Through its use of remote arbitration, Sintons recently secured a binding and final decision for a client within five weeks, compared to the timescale of around 12 weeks just to get to the first hearing (where no decisions can be made) in the traditional court process.

Louise Masters, senior associate in the award-winning family team at Sintons, secured the award in this case, which was one of the first uses of remote arbitration in the North East.

“Whilst Sintons was able to move most employees to remote working essentially overnight, the COVID-19 lockdown has presented many frustrations and anxieties for our clients and their cases, especially where court proceedings were underway. Our absolute commitment to exceeding clients’ expectations meant that we were only too keen to find ways of securing the best route and outcome, while minimising delay where possible. Through the use of remote arbitration, we have been able to do this in a streamline and supported manner,” she said.

“There are various options of alternative dispute resolution and in every matter we are mindful of which method could suit a particular case. Remote arbitration is a new approach and one we at Sintons are very pleased to be leading the way with. The past few weeks have shown this can be done very effectively and efficiently via videoconferencing.

“Courts continue to be under significant pressure with an ever-increasing backlog, which we anticipate may lead to lengthy delays in many cases being heard. The courts themselves are encouraging parties to actively consider the use of alternative means of dispute resolution. Arbitration, and presently remote arbitration, is a very important tool in resolving cases enabling clients to secure a binding decision in a timely manner. Given the recent successes of the process overall, it is something which will be in the forefront of our minds moving forward.”

An investigation into the resilience of dental practices following the covid-19 outbreak

By the invitation of the Chief Dental Officer England an independent task group involving a wide range of dental stakeholders is currently looking at the impact of the Covid-19 pandemic on dental practice finances, particularly those relying on both NHS and private income. The stakeholders involved in the piece of work are listed below.

The task group has started to carry out a rapid review of current evidence as to the whether the pandemic will impact on the sustainability of high street dental practices across the next 18 months and examine the causes, nature and duration of any such impact. The task group will consider the impact of “doing nothing” and whether there is a unique business case to be made for additional support for dental practices relying on different sources of income for the benefit of healthcare provision and wider society.

The task group met for the first time in early July 2020 and agreed that a survey would help the group’s objectives. The British Dental Association is hosting the survey and will share the results with the task group.

The task group would be most grateful if you could support this important piece of work by filling in this survey. Please complete responses by Monday 13th July 2020.

https://www.smartsurvey.co.uk/s/covidandyourpractice/

Stakeholders

  • Association of Dental Groups
  • British Association of Clinical Dental Technology
  • British Association of Dental Nurses
  • British Association of Dental Therapists
  • British Dental Association
  • British Institute of Dental & Surgical Technologists
  • British Society of Dental Hygienists and Therapists
  • Faculty of General Dental Practice
  • Local Dental Committees Conference
  • Local Dental Networks and commissioners
  • National Association of Specialist Dental Accountants and Lawyers
  • Office of the Chief Dental Officer England and CDO representatives from the devolved nations (as observers)
  • Society of British Dental Nurses ​

Ask the Experts weekly Q&A with Sintons’ Employment Team – episode 8

Today we recorded our ‘Ask the Experts weekly Q&A with Sintons’ Employment Team – episode 8’ – with Keith Land and Angela Carver. These sessions came about due to the employment team here at Sintons having been inundated with COVID-19 and furlough questions following the introduction of the Coronavirus Job Retention Scheme and the ever changing government guidance.

The team has also given much thought as to what work may look like following the relaxation of the current restrictions.

For your convenience we have also recorded this session as both a webinar and podcast, links to both are below.

Electrical Safety Standards in the Private Rented Sector

As we emerge from lockdown and the property sector begins to show positive signs of movement, landlords must make themselves familiar with changes which have taken effect during the past few weeks.

Amidst the COVID-19 pandemic and the current continual changes in guidance and easing of restrictions, the introduction of the Electrical Safety Standards in the Private Rented Sector (England) Regulations 2020, which took effect on June 1, may easily have been overlooked.

The regulations cover electrical safety standards in the private rental sector, and apply to both short and long-term lettings, including those to farm workers, cottages on estates and residential investment portfolios.

For any tenancy agreement signed on or since June 1, the new regulations will be enforced from July 1. For existing tenancies, so those signed before June 1, they become affected by the new standards from April 1, 2021.

For landlords and tenants who have been in a tenancy for some time, there are several months to get up to speed, but for new tenancies, the need becomes more urgent – and despite everything else that may be going on in the world, ignorance will be no defence.

As of when the rules take effect, it will become a landlord’s duty to find a ‘qualified and competent’ person to inspect the property at least every five years, to ensure all electrical installations in the property they are letting are safe. A report must be written by the person conducting the inspection which sets out the results, and a copy must be given to any existing tenants within 28 days of the inspection.

New tenants must be given a copy of the report before they occupy the premises, and the report must also be shared with prospective tenants within 28 days of them requesting this information. If requested by a local authority, the report must be supplied within seven days.

For tenants, they now have additional assurance the home they rent will be safe, and they will be given written evidence of this. The powers of the local authorities are also clearly stated, and tenants have the protection of them being able to enforce necessary action or repairs if the landlord does not undertake this work.

If remedial work is required, the inspection will set out how urgent this is, and local authorities can intervene to request this is done within 28 days, or in the most serious of cases, carry out work themselves with costs recoverable against the landlord. However, a landlord will not be in breach of their duty if they can show they have taken all reasonable steps to comply with their obligations, such as if they have been unable to gain access to the property or the tenants prevented work taking place.

While many landlords will complete such inspections anyway, it has now become a legal requirement to do so. Failure to comply carries a fine of up to £30,000, so it is important these new regulations are adhered to and that necessary action is taken.

The full requirements of the regulations can be found at gov.uk, but for any uncertainties or clarification, specialist advice must be sought to ensure compliance with the rules.

  • Tom Wills is head of agriculture and estates at Sintons. The specialist team works from its offices in Newcastle and York to support families and businesses across Northumberland, County Durham, North Yorkshire and Cumbria. To speak to Tom about this or any other matter, please contact him on wills@sintons.co.uk or 0191 226 3796

Ask the Experts weekly Q&A with Sintons’ Employment Team – episode 7

Today we recorded our ‘Ask the Experts weekly Q&A with Sintons’ Employment Team – episode 6’ – with Ailsa Hobson and Catherine Hope.

Just as a reminder, these sessions came about due to the employment team here at Sintons having been inundated with COVID-19 and furlough questions following the introduction of the Coronavirus Job Retention Scheme and the ever changing government guidance.

The team has also given much thought as to what work may look like following the relaxation of the current restrictions.

For your convenience we have also recorded this session as both a webinar and podcast, links to both are below.

COVID-19 Q&A | Sintons | Wills, Trusts & Estates

During these unprecedented times, where the situation is changing on a daily basis, we are aware that individuals and business owners will have many questions and uncertainties about how these developments impact on them.

Here, through a series of Q&A with expert lawyers from across our firm, Sintons hopes to be able to answer some of those pressing questions, and provide some certainty and clarity for people who are unsure how to proceed.

Q – Do I need to involve a law firm in making my will? It seems like an additional level of delay to the process in the current climate. Will it still be legally binding if I do it myself and have my neighbours or members of my household witness it?

A – Handwritten wills are known as “holographic” wills. Holographic wills can be valid, provided that they fulfill certain legal requirements. However, there are huge risks in making your will at home, mainly that your will could be challenged on a number of legal grounds after death. Given that your will is one of the most important documents you will ever sign, it is crucial to seek professional advice to ensure that its contents and execution are correct.

Firstly, if you choose to write your own will, there is a danger that your intentions may not be made clear. Legal professionals draft wills carefully to ensure that on your death, there is no confusion or uncertainty as to who should benefit from your estate and on what terms. By way of an example, you may think that leaving a gift of your jewellery to your grandchildren is a simple gift for a lay person to draft. However, if the gift is not carefully worded it could cause a huge rift in the family. Do you intend for your children to pick items of jewellery or are the items simply to be divided according to value? What if there is a disagreement between the grandchildren as to who gets what? Do you intend for your watches to be included in the definition of jewellery or are these intended for somebody else? This demonstrates that it is really important to seek the advice of an expert when making your will, to ensure that no ambiguity arises.

Secondly, should you choose to make your will at home there is a risk that it may not be signed and witnessed correctly. Under the Wills Act 1837, a will must be in writing and be signed in the presence of two or more witnesses at the same time. The witnesses must have clear sight of you signing your will and cannot, for example, witness your signature on different days or at different times. Asking members of your household to witness the will for you is certainly inadvisable, because any gift to them under the will would become void. There is also an increased risk that the will could be challenged on the basis of fraud. Legal professionals can provide you with clear guidance on how your will can be validly signed and witnessed, particularly in light of the current government guidance regarding social distancing.

Thirdly, a homemade will is more likely to be challenged by disappointed family members who you may decide to leave out of your will or leave a smaller amount than they might be expecting. In order for a will to be valid, a you must have the requisite mental capacity to make a will, be free of undue influence (pressure or fraud) and have sufficient knowledge and approval of its contents. Completing a will at home increases the risk of family members exerting pressure on you to sign a will that you did not intend to make. Lawyers are alert to issues of fraud and capacity, and can ensure that any risks of a will being challenged are at an absolute minimum. At Sintons all the Wills, Trusts & Probate Team are members of professional bodies, such as STEP or SFE, and so they have a wealth of experience in advising clients on their wills and issues surrounding their legality.

Finally, if you are worried about the delays caused by making a professional will, we work hard to ensure that our clients’ affairs are sorted as quickly and efficiently as possible. Should you inform us that you need a will making urgently, due to ill health or any other reason, we will do our upmost to ensure that we can assist you.

In summary, homemade wills, whilst valid, are more likely to cause upset and costs to your family after your death. Asking a professional to draft your will ensures that you have the peace of mind that, on your death, your affairs will be managed how you would want them to be.

Ask the Experts weekly Q&A with Sintons’ Employment Team – episode 6

Today we recorded our ‘Ask the Experts weekly Q&A with Sintons’ Employment Team – episode 6’ – with Ailsa Hobson and Catherine Hope.

Just as a reminder, these sessions came about due to the employment team here at Sintons having been inundated with COVID-19 and furlough questions following the introduction of the Coronavirus Job Retention Scheme and the ever changing government guidance.

The team has also given much thought as to what work may look like following the relaxation of the current restrictions.

For your convenience we have also recorded this session as both a webinar and podcast, links to both are below.

Sintons supports care providers during COVID-19

This article was featured in the June issue of North East Times.

Care providers including NHS Trusts, GPs, dentists and other healthcare organisations are being supported through the COVID-19 pandemic by nationally-acclaimed advisors at law firm Sintons.

Frontline NHS services have come under huge pressure during the past few weeks as Coronavirus swept the UK, leaving tens of thousands of people seeking urgent medical care having contracted the deadly disease.

The pandemic has brought individual challenges to each of the main groups of healthcare providers – NHS Trusts have been at the forefront of the efforts to tackle COVID-19, with hospitals and their teams providing outstanding urgent care to people, despite the well-documented controversies of a lack of PPE and provision and testing for staff.

In support of the efforts of hospital teams, many GP practices and local medical centres have taken on additional roles after NHS England commissioned extra capacity for the treatment of patients, not only to support the treatment of COVID-19, but also to help the NHS deliver other urgent operations and cancer treatments.

Many dental surgeries have faced a different kind of challenge, with a decline in business as a result of social distancing seeing many practices turning to business support measures including the Government’s Job Retention Scheme.

The specialist healthcare team at Sintons has been advising senior figures from across the healthcare spectrum, supporting them in dealing with the unprecedented current situation and enabling them to take the major decisions that are frequently required in such a fast-changing environment.

Sintons’ healthcare team, which is regularly hailed as one of the UK’s leading specialist advisors to the sector by the independent Legal 500 and Chambers legal guides, is the long-standing legal advisor to several NHS Trusts across the UK. The team has played a vital role in helping them to achieve stability behind the scenes, supporting the smooth running of the Trusts to enable them to concentrate on their frontline healthcare provision.

Amanda Maskery, head of NHS healthcare at Sintons and one of the leading specialist healthcare lawyers in the UK said: “Our healthcare clients and their fantastic staff are rightly being hailed as the heroes of the COVID-19 crisis. The way they have responded to the huge pressure of soaring diagnoses of this deadly illness, while having to deal with the additional challenges of lack of resource and equipment, has been phenomenal. We have never been more proud of our NHS and everyone working in healthcare.

“As a leading specialist advisor to the sector, we have worked with NHS Trusts, GPs and other providers for many years, and our in-depth understanding of the continually-changing NHS landscape enables us to give valuable insight and clear advice to these organisations, even in the most urgent of situations.

“We are delighted to continue to support them through these difficult and uncertain times, and will be with our clients every step of the way as they negotiate their way through the pandemic and come out of the other side.”

Popular online Q&A session returns at Sintons

The popular ‘Ask the Experts – a Weekly Q&A with Sintons’ Employment Team’ which ran for five episodes in May 2020 is back by popular demand from this Friday, 26th June 2020.

It will stream live at 10.00am on Teams and will run each Friday until further notice.

Just as a reminder, these sessions came about due to the employment team here at Sintons having been inundated with COVID-19 and furlough questions following the introduction of the Coronavirus Job Retention Scheme and the ever changing government guidance.

The team has also given much thought as to what work may look like following the relaxation of the current restrictions.

So, in order to give you an opportunity to share in some of that wisdom, the team have opened themselves up again to these Q&A sessions. During these short, bite sized sessions, members of the employment team will answer three questions, (either COVID-19 related or not) that you haven’t either quite got to the bottom of or that your employees persistently ask you.

Full details of the sessions can be found in the video below, including how to register and raise your questions.

Click here to view our previous sessions.

Encouraging steps on the way forward for commercial tenants

With the next quarters rental payment date fast approaching and with financial pressures coming from all directions we are seeing many tenants becoming increasingly anxious and struggling to see how they will be able to continue in a post pandemic world. The issue by the Government on Friday (19th June) of its ‘Code of Practise for commercial property relations during the Covid-19 pandemic’ is certainly a welcome step, encouraging landlords and tenants to work together for the greater good of the economy in the longer term.

As seems clear the economic disruption of the pandemic is likely to have an impact for many months to come, if not longer. The aim behind the guidance is to encourage landlords and tenants of commercial properties to collaborate to facilitate the economy recovering as swiftly as possible. In the North East steps are already being taken that encapsulate the spirit behind the Government guidance with landlords such as UK Land Estates offering support to its tenants with rent free periods in exchange for lease variations.

The initial steps taken by the Government, at the outbreak of the pandemic, to provide tenants with a degree of breathing space included a halt on the ability to terminate leases by the forfeiture mechanism, changes to the commercial rent rates recovery process and substantial business rate relief. This new guidance aims to take the next steps forward, as we move out of lock down.

The Code, however welcome, is only guidance. It does not change the legal position contained in the contractual lease between the parties. It is acknowledged in the Code that every landlord and tenant relationship is different with a wide variety of competing financial and fiduciary pressures on both but it encourages each to act in good faith, reasonably and flexibly in line with the principles outlined in the Code, for the greater good of economic recovery.

Where a tenant is not able to pay all or some of its rent the Code encourages tenants to open communications with its landlord, to see if a mutually beneficial solution can be achieved. Communication is key. The Code wants tenants to be able to feel that they can contact landlords, open dialogue about the financial impact of the pandemic and see if an arrangement can be reached which could affect whether or not a tenant is able to  survive. As part of those discussions tenants should be prepared to be transparent and provided landlords with relevant financial information. However before providing any such information tenants may want to consider protecting details that are commercially sensitive.

The Code usefully provides a list of areas that a landlord may want to consider such as how long the tenant’s business has been closed and the resultant impact, any restricted trading and additional expenditure as a result of social distancing and any Government assistance. It also helpfully provides suggested options to consider such as rent free periods, payment of rent over a reduced time period i.e. monthly or weekly and rent reductions over designated periods of time. The list in the Code isn’t intended to be exhaustive but to provide guidance, to encourage discussions between the parties. As well as the annual rent discussion could also take place around other charges i.e. contributions towards the landlord’s insurance premium and service charge obligations.

With many leading organisation such as the British Retail Consortium and RICS having signed up to the Code until 24th June 2021, hopefully, the next steps forward will see landlords and tenants working together for the greater good, even though there may be pain in the short term. Sintons has been working closely with its clients and intermediaries during the pandemic on a wide variety of landlord and tenant issues and if it can assist in any way please get in contact with either myself or one of the team.

Business Interruption Insurance Disputes

If like many businesses you have been financially affected by Covid-19 pandemic, it is reasonable to assume that you have checked your insurance policies to see if Business Interruption Insurance cover might respond.

The introduction of the lockdown on 23 March 2020 and the measures imposed by the Government, such as limiting customers and restricting how a business can operate, meant that businesses have had to adapt to survive.

However, with the forced closures some businesses have not been able to operate at all. Many have sought to rely upon their Business Interruption Insurance, only to discover whilst trying to make a claim, their insurer has declined it stating the policy does not cover Covid-19.

Sintons have been advising businesses who have faced similar issues on their insurance policies.  We can assist your business if you are in doubt about your policy wording.

In response to the number of potential claims, the Financial Conduct Authority (FCA) has commenced test case proceedings in the High Court to seek clarity on the interpretation of various forms of business interruption policy wording. An eight-day hearing will commence on 20 July 2020 with the insurers’ Defences and Reply to be filed beforehand. The FCA mandates that all financial services and products must treat their customers fairly and due to the ambiguity and interpretation being adopting in the wording of some policies, this action serves to make sure this happens.

It is not yet known how far any Judgment against the insurers might be applied to alternative policies due to the specific wordings that have been chosen to be part of the test case. However, the FCA have made it clear that not all policies will be affected by the outcome of the test case; particularly those that only have basic cover for business interruption as a consequence of property damage.

Instead, the key areas that will feature are clauses concerning notifiable diseases and the proximity to a premises, denial and prevention of access in addition to government restrictions. There are also important questions to be asked about causation and what must be the cause of the loss (if there is one) to the business to allow a policy to respond. Furthermore, any Judgment could be appealed with some anticipating this will be heard in the Supreme Court for the final determination.

These remain difficult times and the effects of Covid-19 can still be seen with businesses hoping the outcome of the test case will be favourable in respect of their policies. As that outcome is potentially months away, many businesses simply cannot afford to wait. Businesses should be engaging with their insurer now to assess where they stand and ensure that they do not fall foul of any policy notification requirements.

If your business has been affected by Covid-19 and you would like further information about Business Interruption Insurance or if find yourself in a potential dispute, please contact Adam Hutton or a member of the Dispute Resolution Team to see how we can help.

Housebuilder overcomes COVID-19 challenges to remain on track

The North East house builder behind the redevelopment of a Tyneside pub site is pushing on with the launch of the project having successfully overcome the challenges presented by COVID-19 lockdown.

Work on Woodacre Mews, in Wallsend, has continued during the period to ensure work continued to progress to timescale, with developer Woodacre Homes ensuring it at all times complied with social distancing measures for the safety of its employees.

The 12-home development – which is regenerating the site of the derelict Bogie Chain pub – is now launching its show home, and is introducing new ways of touring the property to assist as distancing measures continue to be enforced.

The show home will offer virtual 3D tours, is available on the Woodacre Homes website, and in-person tours can be made by appointment and prospective buyers will be unaccompanied on their viewing.

Woodacre Mews remains on track for completion in September, and interest in the development of four-bedroom townhouses has been high despite the significant drop in movement in the property market.

Steve Frith, director of Woodacre Homes, said: “While much of the economy has come to a halt, the construction sector has continued with many projects, and we have taken great care to ensure work on Woodacre Mews has been done in a safe manner, observing social distancing rules at all times. Our team have done a fantastic job and it’s thanks to their efforts that we remain on track.

“We have continued to receive a strong level of enquiries from potential buyers throughout the lockdown period, which has been very encouraging, so we were keen to show them the show home at the earliest opportunity. By turning to technology and offering unaccompanied visits, we can ensure viewings can be done while ensuring the safety of all concerned. Woodacre Mews has been so long in the planning and is designed and built to the highest of specifications, and we are very excited to showcase what we have created.”

Woodacre Homes has been supported in its site acquisition and development by real estate specialists at law firm Sintons, with partner Tom Wills leading the team.

“The effect of COVID-19 on the property market has been well documented, but it is great to see a regional house builder continuing to show ambition and deliver their project,” said Tom.

“Woodacre Mews is a very welcome development for this area, regenerating the site of a derelict pub and bringing much-needed family housing to the community. The fact interest has been high even while the property market at large has struggled tells its own story and we wish Steve and his team every success in completing the development.”

Neurorehabilitation and COVID-19 – a 360 degree view of the sector – episode 8

The COVID-19 pandemic is affecting all aspects of the world of neurorehabilitation, with people and businesses working within it turning to innovative new ways of working to protect and support clients.

Here, in the latest insight brought to you by the neurotrauma team at Sintons, Dr Kate Heward, clinical director at Rehabilitate Therapy, discusses how her team have made best use of technology for the benefit of their clients.

Back in early March, once it became clear that lockdown was on the horizon as Coronavirus swept through the country, we decided to take steps to prepare ourselves and our clients as best we could for what lay ahead.

From looking at what was happening elsewhere in the world, we imagined that restrictions on our movement were imminent which would, of course, impact on the very personal and bespoke rehabilitation service we traditionally give our clients. We realised that if we couldn’t go to see them in person for however long a period, we would need to replace that with something – so we set about giving our team of 17 occupational therapists a crash course in video conferencing so that they could each, in their final face to face visits and since, support and educate their clients (and families) to use the technology.

I had realised how well video could work in certain situations a few weeks before lockdown, when I was contacted about a client who was living in the Highlands of Scotland and there was no-one anywhere near who could help. I was asked whether I would consider doing an assessment remotely with a view to providing remote rehabilitation. While this was not something we would usually do, I was surprised how well it could work. Of course, not everything can be completed as effectively as in person, and technology will never be able to replace that, but I came to realise that it could work as an effective temporary substitute or supplement when circumstances dictated.

Using the likes of Zoom and FaceTime, we developed a step-by-step guide for how to access and use these apps for our team, clients and other professionals we worked with, as we knew this would be central to what we did in the weeks and possibly months ahead. The need to be proactive was so important and this is why we visited our clients ahead of lockdown and made sure they knew how to use videoconferencing. I would, for example, go into their house and help them set it up, then go into their garden to test out a call between us, so I remained on-hand to help with any uncertainties or issues.

Once we had established that clients were comfortable in using videoconferencing, we were able to design a programme around that. As well as our ongoing and programmed therapy sessions being held via video, we put together a an extra programme of free to access groups and classes. We offer at least one group every day by Zoom, ranging from exercise and fatigue management to creative writing and social groups, and the uptake has been fantastic. One of our clients, whose therapist is our senior associate Sara Grimshaw, gained a personal training qualification post-brain injury and leads our exercise classes and the feedback has been fantastic – already two physiotherapists want him to do some work with them post-lockdown. This has meant that with support of his occupational therapist, he has actively continued to pursue his rehabilitation goals even in the very restrictive lockdown. Results like this are so satisfying as vocation is at the heart of our business.

As well as offering services to our wide range of clients geographically, we are also giving opportunities for them to develop their skills and confidence in this way. Our groups are all friendly, inclusive and free of charge via our website – www.rehabilitatetherapy.co.uk. We have also made them available to clients associated with other professionals we work with – not just Rehabilitate therapy clients. Other therapists and case managers refer their clients to our online groups, and we are really pleased to include them. It does feel that we are all in this together, and other professionals such as Steve Wiseman from Steve Wiseman Associates is also facilitating a group.

Technology has helped in us being able to continue to give structure to our clients’ days – the ones who are coping best are those who have structure and have embraced our new ways of working. We always recommend to those who use diaries and planners to schedule things, even if it is just doing a YouTube workout, it’s important that is put into the diary so they can develop a plan for their day and week and maintain a structure and routine which is so important particularly after a traumatic brain injury, for example. One of my OT’s has been providing remote functional upper limb therapy to a client she had never met in person, as he was referred at lockdown. But the case manager has since contacted the OT and reported how before seeing her he was barely using his hand in any functional tasks; now he is using it to hold cutlery and eat meals. Both the client and case manager could see both the functional and psychological changes.

A routine is so important, at this time more than ever. We have a client, for example, who was  making significant progress in their community rehabilitation prior to the lockdown, and for them it has been hugely disruptive and disconcerting. All the planned sessions ended and the only visit she had was once a week from a support worker who did her shopping. As occupational therapists we are often integral in coordinating rehab support, so I quickly realised the need to be creative in re-establishing these routines. Now, this client is having two remote sessions a week with me, sessions with the psychologist, physiotherapist and speech therapist, takes part in online groups for Yoga and creative writing and has visits three times a week from support workers who go for a cycle ride and long walks with her. Her week is now full and purposeful, which is such a huge transformation from how the outlook was initially. Although it is significantly different to pre-lockdown and there are still many day to day challenges, her week has a clear structure and routine. I am certainly experiencing that those clients with structure and routine are coping much better than those who don’t.

Use of video has also therefore been really important in supporting our team. Our team have been absolutely amazing in how they have positively adapted, they have been so dedicated and proactive. Additionally, our senior associates Emma and Sara have been extremely tenacious in showing leadership to keep things progressing. Even though we can’t all get together in person, communication is absolutely essential and we want our team to know they are being supported, as well as ensuring appropriate supervision is in place. We offer our associates, who are geographically widespread, one-to-one video meetings each week, as well as the offer of weekly team catch ups, which are beneficial for us all – they enable us to deliver the best possible service to our clients while looking out for each other, as well as enabling us to share tips and best practice to keep clients engaged remotely.

We are currently prioritising putting a plan in place for when we emerge from the current situation, when social distancing is eased, and are assessing the priorities for each client. It’s very individual and bespoke to the needs of each individual, with the common theme that we need to keep our clients safe while also having very clear guidance in place so our team feel safe and supported in the job they are doing, while also ensuring we are working towards their rehabilitation goals wherever safe and feasible to do so.

The past few weeks have not been without challenges – and ironically in lockdown we have been busier than ever – but our team has really responded in the best possible way. Our use of video has been very effective and we are delighted with how many of our clients have responded positively.

Government publishes updated guidance on flexible furlough scheme

On Friday evening the Government updated the guidance on its Job Retention Scheme (the “Scheme”). This was in relation to a number of changes set to be made to the Scheme over the coming months, such as the introduction of flexible furloughing, and changes to the Government contributions.

We set out a brief overview of the main changes below:

  • From 1 July employers will only be able to claim under the Scheme for employees who have previously been furloughed for at least 3 consecutive weeks taking place any time between 1 March 2020 and 30 June. The last day an employee could have started furlough leave was therefore 10 June. The Scheme is no longer open to be used by employers who have not yet made claims under it
  • The number of employees an employer can claim for after 1 July cannot be more than the maximum in any previous claim (again subject to the exception below)
  • The only exception to the closure to new entrants and limitation on numbers is where an employee has returned from maternity, shared parental, adoption, paternity or parental bereavement leave after 10 June. Such employees can be placed on furlough leave as long as their employer has already made use of the Scheme in respect of other employees
  • 31 July is the last day that claims can be submitted for periods ending on or before 30 June
  • Employers cannot claim for periods in July before 1 July
  • As previously mentioned, the updates confirm the following changes to the Government contribution under the Scheme:
    • from 1 August 2020, employers will be required to cover the costs of employer NIC and pension contributions;
    • from 1 September the Government will only reimburse 70% of salary (maximum of £2,187.50), with employers having to top up the remaining 10% (or more depending on what is agreed with an employee);
    • from 1 October the Government will only reimburse 60% of salary (maximum of £1,875), with employers having to top up the remaining 20% (or more depending on what is agreed with an employee); and
    • on 31 October 2020 the Scheme will end.
  • Due to the Scheme changing every month, any claims covering the period from 1 July 2020 onwards must start and end in the same calendar month and each claim must be for a period lasting at least 7 days. There is one exception here and that is where a claim is made for a few days at the beginning or the end of a month. This might be, for example, where staff are paid weekly and a week splits across two months. In this situation an employer would need to make two claims, one in respect of each month
  • From 1 July, employers may bring back employees on furlough leave for any amount of time and any shift pattern (“Flexible Furlough”)
  • Employers who wish to use Flexible Furlough from 1 July will need to agree this with an employee (or reach collective agreement with a trade union) and keep a new written agreement that confirms the new furlough arrangement. Employees can enter into a Flexible Furlough agreement more than once
  • The guidance sets out complex rules for calculating the amount of grant to be claimed for Flexible Furlough.

The full detail of the updates is set out in different parts of the Government’s guidance on the Scheme which can all be accessed here.

If you have any questions about the Scheme, or any other employment related matter, please contact a member of the Employment Department.

Will disputes

Senior Associate Emma Saunders and Solicitor Emelie Vardon from the Contentious Probate department at Sintons have recorded a series of four podcasts. Today’s edition concentrates on will disputes.

Click on the icon below to listen to the podcast.

 

COVID-19 Q&A | Sintons | The Impact on Landlords of Commercial Property

During these unprecedented times, where the situation is changing on a daily basis, we are aware that individuals and business owners will have many questions and uncertainties about how these developments impact on them.

Here, through a series of Q&A with expert lawyers from across our firm, Sintons hopes to be able to answer some of those pressing questions, and provide some certainty and clarity for people who are unsure how to proceed.

We will bring you a question and answer per day for the next few weeks.

In response to the global pandemic of COVID-19 the UK government introduced new extensive laws to help mitigate the virus’s impact on the country. The Coronavirus Act 2020 ( “the Act”) achieved royal assent on the 25 March 2020 and, in addition to providing the legal basis for the ongoing ‘lockdown’ of UK citizens, it sought to protect tenants of leases of commercial property who were struggling to pay rent by placing a temporary restriction on re-entry or forfeiture for non-payment of rent. As a result, landlords have been left in a difficult position with the Act affecting how they manage their buildings and their rental income.

Some of the potential questions that landlords may have in relation to dealing with commercial property in the current pandemic and under the Act are explored below, but we would advise that specific legal advice is sought before any action is taken.

Q – What options are available to me if my tenant is not paying their rent under the lease?

A –Under the Act landlords are unable to re-enter premises or forfeit leases due to non-payment of rent. The provisions were originally stated to only last for an initial period up to the 30 June 2020. However, the Act also allows that the government may extend this period. It is important to note that the Act does not suspend the landlord’s right to rent or other payments under the lease and therefore interest will begin to accrue on the rent that has not been paid.

One option therefore for landlords if their tenant is not paying rent is Commercial Rent Arrears Recovery (“CRAR”). CRAR is a process that allows for landlords to instruct an enforcement agent to take control of goods belonging to the tenant and to then sell these goods to cover the debt owed. However, there are some key points that a landlord must consider before pursuing this route. CRAR can only be used in relation to the principal rent under the lease and cannot be used to recover sums such as service charge and insurance rent, the Act also restricted landlords from using CRAR unless they are owed 90 days’ worth of rent and a landlord should consider from a commercial perspective whether the seizing of tenant’s goods to cover non-payment of rent is simply going to result in the tenant not being able to pay any further rent in the future.

Another option that will be available to some landlords is withdrawing sums from rent deposits received from tenants at the outset of the lease. Most rent deposit deeds will allow for the landlord to make withdrawals from the deposit in the event of the tenant being in breach of the lease (in this case non-payment of rent). Additionally, most rent deposit deeds will have provisions in them that require a tenant to top up the deposit following any withdrawal so this may well be a potential option to landlords who have rent deposits with their tenants.

Q – Do I have to provide ‘deep cleaning’ and additional services to comply with regulations? Can I recover the costs of these from my tenants?

This will depend on the terms of your lease. If the lease contains a landlord covenant to clean and keep safe the common parts of a building or property this may well be interpreted to cover deep cleaning of the property and complying with the new regulations imposed by the Act. Even if there is no such wording in the lease most landlords are now taking pragmatic steps in relation to more thorough cleansing of common areas and frequently touched surfaces. If you are a landlord of a building/centre where you employ managing agents you will also have to consider complying with your obligations under UK health and safety law which requires landlords to take all reasonable practicable action to ensure the health and safety of the people that they employ.

Implementing measures to combat the spread of COVID-19 will no doubt come at a cost to landlords. However, most leases including service charge provisions will contain clauses allowing for the landlord to recover costs spent in relation to good estate management. Additionally, leases are likely to include a clause stating that the landlord can recover costs incurred as required by statute so landlords should consider seeking to recover the costs incurred through the service charge.

Q – Do I have to entertain any requests from my tenant to vary their lease due to COVID-19?

Unless there is a specific provision in the lease the answer to this question is likely to be no. Landlords are facing difficult decisions regarding the long term benefits of supporting tenants while also considering the financial impact on their own business and also the obligations they may have to their lenders. Within the market, we are seeing landlords accommodating requests by tenants to pay monthly for a period instead of quarterly to assist cash flow. Also, tenants have been requesting rent deferrals and/or rent-free periods. Landlords need to carefully document such arrangements and be clear as to whether rent is deferred and still due. We can assist with the production of simple legally binding agreements to deal with such matters.

Q – Should I be including new wording in my leases to cover pandemics such as COVID-19?

Careful consideration must be given before any contractual provisions are agreed. We are seeing some wording put forward by tenant’s representatives that is very wide ranging and consequently unacceptable. The most likely scenario where wording will be needed is to cover circumstances where a party must complete an act by a set date. For example, an agreement for lease may contain obligations to complete works by a specified date. A well advised party should be seeking to include provisions that allow for time periods to be extended . We can advise on such provisions in the context of all types of agreements and lease.

If you would like further information on how landlords should respond on their commercial leases, please contact Alex Wilkins or a member of the Real Estate Team at Sintons.

The importance of social media during COVID-19

In such difficult economic times, many businesses are concerned about what lies ahead. David Pritchard, award-winning head of marketing at Sintons, discusses how creative use of social media during the current period can help to deliver impact in both the short and longer-term

These turbulent times present unprecedented challenges for businesses. While many are rightly concentrating their efforts on maintaining the existence of their venture, others are continuing to make strong progress – but the unknown of what lies ahead over the coming weeks and months poses huge potential issues for everyone.

Whatever situation your business is currently experiencing, one area which remains of huge importance for everyone alike is interacting with your audience. Whether you have been forced to temporarily close, or you run a thriving operation, the need to engage with existing and potential clients can be a key factor in your future reputation and success.

Social media is a vital tool for businesses of all sizes and sectors. While some are already established in their online presence and accomplished in their use of social media, many others are wondering where to begin. The main thing is to have some form of online presence and build from scratch if necessary.

Interaction with social media and websites has never been higher than in the present climate – at Sintons, we have seen huge growth in traffic to our website through use of relevant content, podcasts and effective use of social media. One of our recent successes has been the creation of a dedicated COVID-19 portal, a resource for businesses and individuals to access information about the current climate and how it affects them.

Here are some tips we can offer to help shape your ideas around social media at this time:

* Know and understand your target audience – who are the people who are currently clients and who else would you like to target?

  • Keep posting relevant content – be consistent in uploading content to your website and social media, and tailor it to the needs of who you are targeting
  • Provide real value in what you are posting – why should the reader take time to look at your posts when there is so much other content out there?
  • Don’t just post for the sake of posting – the internet is awash with content at present. Make yours stand out by being informative and addressing the key issues in your sector or your client base want to know
  • Try and create promotions or campaigns that people can interact with, to keep dialogue open and give them a reason to get in touch
  • Post about your own experiences and those of people within your business – enable people to get to know you better
  • Where possible, try and support other businesses and clients and help promote them – it’s a great reciprocal gesture and will be appreciated

While no-one yet knows what lies ahead for businesses and the economy, building and maintaining an online presence and interacting with your audience is without doubt an effective and importance use of your resources at present, and one which may help to deliver benefits in both the short and longer-term.

Parents returning to work following extended leave will be eligible for furlough leave

HM Treasury has announced that employees on paternity and maternity leave returning to work in the coming months will be eligible to be placed on furlough leave under the Government’s Job Retention Scheme (the “Scheme”).

This means that employers will be able to place such employees on furlough leave after the normal cut-off point for new entrants which is today (10 June). It will, however, only apply where an employer has already made use of the Scheme in respect of other employees.

This change follows the Chancellor’s recent confirmation that the Scheme has been extended until October, with the ability of employees to carry out part time work from 1 July.

For other employees, the final date by which an employer needs to place them on furlough leave under the Scheme remains the same, 10 June. This is to ensure that they will have been furloughed for the necessary 3 week period ahead of the Scheme closing to new entrants at  the end of June.

The information published by the Government so far can be found here.

Further details of the change are to be included in the updated Scheme guidance which is due to be published on Friday (12 June).

Popular employment event to be held online

One of Sintons’ most popular annual seminars, which shares employment and HR advice with scores of professionals across the region, is being held online to enable it to take place amidst the ongoing COVID-19 restrictions.

The Procedural Pitfalls and Pointers event, held by Sintons in conjunction with Reed HR, regularly attracts over 150 people and is often oversubscribed when held in person at its usual venue of St James’ Park.

However, due to ongoing social distancing measures, the seminar will be held online, to enable experts at Sintons and Reed to continue to share their much-anticipated advice and guidance.

The event will update on the disciplinary process, using real-life scenarios based on past client work to help articulate the situation. It will be held on June 18, from 10am to midday.

Sintons’ employment team has used technology to great effect during the COVID-19 lockdown and has held weekly Q&A sessions to answer queries from employers and employees alike across the North East and beyond.

Keith Land, head of employment at Sintons, said: “Our employment events always attract a very significant number of attendees so it’s great that we can continue to engage with these people by transferring our events online. Demand for our Procedural Pitfalls and Pointers event usually exceeds the capacity of the venue, so by holding it online, we can share our advice with even more people, which is great news.

“While for a lot of businesses the impact of COVID-19 will of course be the main issue they are dealing with at present, the importance of other issues, such as the disciplinary process – which are fundamental to the running of any organisation – remain something that need to be understood and updated upon. Our seminar will give anyone working in the field of employment or HR the opportunity to ensure they are fully aware of the latest information and guidance in this area. We look forward to delivering this in a different format, but in an equally effective way.”

* The Procedural Pitfalls and Pointers event, which is free of charge, will be held online on June 18, from 10am to midday. To sign up, contact david.pritchard@sintons.co.uk

COVID-19 – Corporate Insolvency and Governance Bill – Update for Suppliers

The Corporate Insolvency and Governance Bill 2019-21 (“Bill”) was announced by BEIS on 20 May 2020 and is currently going through Parliament. The Government has commented that the Bill will relieve the burden on business during the COVID-19 outbreak and allow them to focus all their efforts on continuing to operate. Whilst this may be true for some, it also prevents Suppliers from terminating a supply contract where a Customer suffers an insolvency event.

Prohibition on Termination of Supply Contacts for Goods and Services

The Bill introduces a prohibition on termination clauses in supply contracts which entitle a Supplier to terminate where a Customer (who is a company) suffers an insolvency event. A new clause 233B (Protection of Suppliers of Goods and Services) will be inserted into the Insolvency Act 1986 which will have the affect of preventing a Supplier from terminating their supply contract where their Customer is suffering from certain insolvency events including:

  • the Customer entering administration;
  • an administrative receiver of the Customer being appointed;
  • a voluntary arrangement takes effect; or
  • the Customer goes into liquidation.

Many supply contracts contain specific provisions entitling the Supplier to terminate where the Customer suffers a defined insolvency event. The effect of the Bill is that the Supplier will not be allowed to exercise its rights under its supply contract in these circumstances. The rationale for this approach is to ensure that companies going through a rescue process will continue to receive supplies and that Suppliers and other creditors will benefit if more companies are able to survive and repay more of their debts by implementing a rescue plan.

The Bill also prevents Suppliers from making it a condition of supplying any goods and services following the insolvency event that any outstanding charges in respect of a supply made prior to the insolvency event are paid.

When can the Supplier terminate?

The effect of the Bill is disapplied in certain circumstances and so the Supplier can exercise its rights to terminate if:

  • the administrator, administrative or liquidator (as applicable) consents to the termination;
  • the Customer consents to the termination; or
  • the Court is satisfied that the continuation of the supply contract would cause the Supplier hardship and grants permission for the contract to terminate (the “hardship safeguard”).

The hardship safeguard provides some reassurance for Suppliers but this is a high bar to meet and requires a determination by the Courts.

Exemption for Suppliers who are Small Entities

There is also a time-limited exemption from the provisions of the Bill for Suppliers who are “small entities”.  A small entity is defined as an entity that meets at least 2 of the following conditions in its most recent financial year:

  • turnover was not more than £2 million;
  • balance sheet was not more than £1 million; or
  • not more than 50 employees.

The rules are slightly different for Suppliers if it is their first financial year. However, this exemption only lasts from the date this provision comes into force until 30 June 2020 or 1 month after the provision comes into force (whichever is the later). Given where we are today, if this provision takes effect unamended, the exemption will last for 1 month following this law coming into effect.

What can Suppliers do?

In practical terms, there is little that Suppliers can do given that they cannot contract out of these provisions but they may wish to consider some or all of the following:

  • checking their supply contracts to understand which ones these provisions will apply to and which rights could be dis-applied;
  • considering whether there are other rights (of termination or otherwise) that don’t apply on an insolvency event (such as voluntary rights of termination, break clauses or other events of default) that could be exercised instead (if needed);
  • changing their payment terms for any new contracts to be entered into to require upfront payment prior to delivery; and
  • reviewing their credit control arrangements to ensure they are being enforced as strictly as possible.

The Bill is not in force yet – for further details of its progression through Parliament please see use this link.

If you would like further information on this, please contact Chloe Dinsdale or a member of the Commercial Team at Sintons.