Can I reduce the risk of IR35 applying?

You will need to check the terms of the contract you have with the debtor to make sure you are still entitled to be paid (including checking any force majeure clause).

It is also important to remember that the current exceptional circumstances might also affect your contractual rights in other ways too – please see our commercial & contracts site for more information.

Depending on the type of debt you are owed, there might be some additional restrictions in place that you will need to consider. For example there are certain restrictions on landlords being able to forfeit leases, evict tenants or send High Court Enforcement Officers to collect outstanding rent.

Assuming there are no sector-specific restrictions in place then you should be able to start county or high court proceedings to recover the debt.

As an alternative to starting court proceedings, if the debt is undisputed a creditor can usually opt to issue winding up proceedings against a debtor instead. However, the recently introduced Corporate Insolvency and Governance Act introduces a temporary suspension on the ability of creditors to present winding up petitions to recover money unless the reason why the debtor cannot pay is not related to covid-19. For more information click here.

Often taking firm action is the right thing to do, particularly given that it is a sad reality that it is the creditor who shouts the loudest that will often get paid first. However, one important consideration is the commercial reality that many businesses (and indeed individuals) now find themselves in.

Whether taking legal action is likely to result in payment is always a question any creditor should ask themselves. Some creditors might also want to try to support their customers during these difficult times and/or have concerns about their long term reputation if they pursue the debt too aggressively. However, even if that is the case it is still possible to engage constructively and positively with those who owe you money to try to reach the best possible outcome. This could include:

• Having clear and consistent credit control processes in place
• Obtaining statements of means to help understand what a debtor can afford to pay
• Agreeing realistic payment plans
• Negotiating formal payment holidays
• Putting in place voluntary security to secure the debt
• Identifying those debtors who can’t pay as opposed to won’t pay and targeting resources accordingly
• Looking at what other options might be available, including recovering under parent company guarantees

The Home Office has not stated when it will end these temporary measures, albeit it has stated that it will provide a warning. Where employers have carried out checks using the temporary measures, the Home Office has confirmed that it will require employers to carry out retrospective checks on any of the following:

• Employees who started working for you when the temporary measures were in place
• Employees who required a follow up check during the temporary measures (for example because their previous leave was coming to an end).

It is not explicit from the guidance but these retrospective checks must require you to have in your possession the physical ID in its original form. When carrying out the retrospective check, employers must record this using the following wording “the individual’s contract commenced on [insert date]. The prescribed right to work check was undertaken on [insert date] due to Covid-19.”

These further checks must be made within eight weeks of the temporary measures ending, and employers must keep records of both checks undertaken. Where the employer discovers that the employee does not have the right to work during the retrospective check they should stop employing them.

The basics of health and safety law requires that employers take “all reasonably practicable steps” to ensure workers’ safety and that a suitable and sufficient assessment of risk is undertaken. It is the individual assessment of Covid-19 risk in each workplace that will be central. Employers will be required to conduct a robust risk assessment and then, following the hierarchy of controls, put robust processes and safeguards in place to address those risks.

UK government guidance and HSE advice is continually evolving, which in practice means that any risk assessment will need to be reviewed very regularly as that guidance develops. There is flexibility for individual businesses within the overall government framework and there will need to be a process of evaluation to ensure that the measures in place continue to meet the requirements.

The starting point of avoid, eliminate and control means looking at individuals continuing to work from home where possible (the fewer the number of people back in the workplace the lower the risk), and if not look at risk management, which leads to administrative controls – i.e. changing work practices before ending up at PPE. PPE is generally seen as control of last resort but in practice – facemasks, disposable gloves and constant prompts to wash hands for example.

In terms of changing working practices, employers should be thinking about:

• the workspace and how this is laid layout
• how do we make sure it is kept clean and hygienic
• how do we keep people apart
• how can we use toilets, canteens or other shared spaces/facilities safely
• how do we promote and enable higher levels of workplace hygiene
• if we are going to rely on PPE – can we get it, and is it suitable
• what about limiting customer interactions
• will there be enough first aiders on site
• can we manage fire safety, deliveries etc
• what about higher risk workers
• should work tools and equipment be allocated on an individual basis to employees.

These decisions need to be recorded and clearly communicated to staff members.

Under CBILS, for the purposes of calculating the applicant’s annual turnover, approved lenders have been aggregating turnover across the whole of the private equity investor’s portfolio meaning they failed to qualify for the scheme as they were deemed to exceed the £45 million threshold.

For private equity-backed businesses, the removal of the upper limit on annual turnover criteria for CLBILS seemingly avoids the issue of turnover aggregation across investment portfolios seen with the CBILS, potentially enabling more private equity sponsor portfolio companies to be able to access the CLBILS funding.

On 18 March 2020, the Government announced that it would pass emergency legislation which would prevent landlords, both social and private, from bringing possession proceedings against tenants who are unable to pay their rent. The Housing Secretary, Robert Jenrick, stated that “no renter who has lost income due to coronavirus will be forced out of their home, nor will any landlord face unmanageable debts.”

The announcement came after several organisations, including housing charity Shelter, expressed concerns that more than 50,000 households could face possession proceedings due to the economic uncertainty following the Covid-19 outbreak.