How is an establishment defined?

During these unusual times, we are all having to adapt to what has become the ‘new normal’ and implement changes in how we carry out civil cases. If you are to give evidence in a remote hearing, whether this is by Microsoft Teams, Skype for Business or the Cloud Video Platform, we have pulled together a quick and useful guide below on what would be expected by the courts:

Before the hearing

• Make sure that you have access to the video-conferencing software that will be needed for the hearing. We will tell our clients and their witnesses in advance which platform will be used. The courts have increasingly been using Skype for Business to conduct the hearings (but you may find other platforms being used)
• Test that your camera and microphone are working and it is clear to see/hear you.
• Dress appropriately, as if it was an in-person hearing, and use the same formalities.
• Ensure that the background which is visible on your screen is appropriate and allows for your face to be clearly seen. A ‘blur background’ option may also be available on your settings which you may prefer.
• Make sure that your mobile phone is on silent and you are in a location where there will be no/minimal distractions. You should be on your own in a room when giving evidence, however, as we have all experienced with working from home, sometimes interruptions such as children appearing cannot be avoided.
• Join the call ahead of the allocated time, in order to allow for any small technical difficulties.

During the hearing

• Have a copy of the hearing bundle to hand, so that you can follow the proceedings (this may be in hard copy or soft copy). You are not allowed any other notes or papers, whether hard copy or electronic, in front of you when giving evidence.
• Unless addressing the Judge or you have been directly asked a question, keep your microphone muted.
• When giving evidence, you must make sure both your camera and your microphone are switched on.
• Remote hearings can be difficult and if you do not understand or you do not hear a question properly, then do ask for the question to be repeated/re-framed.
• You should not move away from the screen without permission from the Judge. The Judge will allow time for breaks.
• Address the judiciary and other advocates the same way as you would if you were in a physical courtroom.
• It is permitted to drink water throughout the hearing, but mugs of tea and/or coffee are probably best avoided. It is also not permitted to eat food during the hearing.
• Don’t panic if someone walks into the room or the dog starts barking because there is a knock at the door. Judges are only too aware about what might happen. Communication is key and if the interruption has interfered with your train of thought or the evidence you are giving then do say so.
• Be aware that all evidence is recorded and that a transcript of all evidence can be obtained at a later date.

Maintenance Orders embodied in a Court Order are variable. If you have lost a very large part of your income, then the Courts ought to take that into consideration when looking at a Court Application to reduce or end spousal maintenance payments. The outcome of any Court Application will, however, depend on a number of factors.

Technically, you should not just stop paying or reduce the maintenance payments, as your ex-spouse could then make an Application to Court for enforcement and payment of the arrears. You could ask the Court to forego you having to pay those arrears if you had evidence to prove that you could not make the payments, however, the Court will need to take a fair approach and you should not assume this request will be agreed.

You should first try to negotiate a reduction or termination of the maintenance with your ex-spouse, either directly or through a Solicitor. If this is possible, you should obtain a Court Order reflecting that agreement. Where a sensible compromise cannot be reached, a Court Application may be necessary.

On 30th April 2020, the CMA issued a guidance note setting out its views about how the law operates in relation to refunds.

Where a contract is not performed as agreed, the CMA considers that in most cases, consumer protection law will generally allow consumers to obtain a refund.

This includes the following situations:

• Where a business has cancelled a contract without providing any of the promised goods or services
• Where no service is provided by a business, for example because this is prevented by Government public health measures
• A consumer cancels, or is prevented from receiving any services, because Government public health measures mean they are not allowed to use the services.

In the CMA’s view, this will usually apply even where the consumer has paid what the business says is a non-refundable deposit or advance payment.

This positon reflects the CMA’s previous guidance which they had issued in relation to the requirement of fairness in consumer contracts under the Consumer Rights Act 2015, which was that a clause in a contract that gives a blanket entitlement to a trader to cancel a contract and retain deposits paid is likely to be unfair, and therefore unenforceable – it would be unfair to a consumer to lose their deposit if the contract is terminated without any fault on their part, and if they had received no benefit for the payments made.

The CMA’s latest guidance therefore confirms their view that the Covid-19 outbreak does not change the basic rights of the consumer, and that they should not have to pay for goods or services that they do not receive.

There is no minimum period of notice you are required to give employees of their return, but from a good HR practice point of view you should be speaking to your staff and letting them know what the plan is; giving people a reasonable amount of notice of return will allow them to prepare both practically and psychologically.

If the business has areas requiring an increased workforce whilst others require a reduced workforce, staff can be retrained and redeployed across the organisation or even across a wider group of companies. This will not reduce the wage bill but will avoid the need for redundancies. Making fundamental changes to an employee’s role and duties will require their agreement following a fair selection and consultation process.