I have essential workers who do home visits. How do I assess the risks?

An amendment to the Civil Procedure Rules’ Practice Directions has been approved by the Master of the Rolls and the Lord Chancellor on 1 April 2020, and is now Practice Direction 51ZA. This has the effect of allowing the parties to extend by prior written agreement up to a maximum of 56 days (rather than the usual 28 days detailed at CPR 3.8(4)) any rule, practice direction or order provided that any extension does not put at risk any hearing date. This Practice Direction will cease to have effect on 30 October 2020.

Additionally each regions’ Designated Civil Judge (DCJ) has issued a Covid-19 Protocol. There are some minor variations between the regions, but overall the guidance is very similar.

In Northumbria, Durham and Teesside the DCJ guidance for multi-track cases provides that “The parties are at liberty to extend, by consent, any step in the timetable up to a maximum of 90 days (as opposed to the present limit of 28 days)” and the Court does not need to be notified if the Trial date is not effected. Where Trial windows are likely to be impacted due to Covid-19 and the parties are in agreement to extending this, a letter can be sent to the Court with a draft order proposing a new timetable, including a new trial window and agreed availability within the trial window.

The same guidance also confirms that an electronic signature on all documents including witness statements and disclosure statements will suffice.

• Certain workers will become “furloughed workers”.
• Furloughed workers cannot carry out any work for their employer while designated as furloughed, or a linked or associated organisation but they can do voluntary work as long as they are not providing services for or generating revenue for the employer or a linked or associated organisation.
• A furloughed worker can be furloughed part time and work the rest of the time.
• The furlough period begins when the employee stops work, not when agreement is reached.
• If furloughed employees are expected to do online training while furloughed they must receive the National Living Wage/National Minimum Wage for the time spent training.
• Workers must be told of and agree to this change in writing. This written agreement must be kept for five years as part of the scheme. The guidance has confirmed that collective agreement reached between an employer and a trade union on furloughing staff is acceptable for the purposes of making a claim under the scheme.
• However it should also be noted that this is a change in status and pay (if pay is not being topped up) and therefore subject to the usual employment law rules on changing terms and conditions.
• Changes to the contract must be made by agreement with the worker and the government guidance is clear that to be eligible for the subsidy employers must document their communication with the employee on being furloughed.
• You must confirm in writing that an employee has been furloughed, but that the employee does not need to provide a written response. Please note that this is for the purposes of making a claim under the scheme. Any reduction in pay must be agreed in writing under normal employment law principles and failure to do so may result in Employment Tribunal claims. You should not rely on a term in the employment contract to effect this change. We can advise you on how to document this properly.
• Employers must also keep a record of the agreement for at least 5 years.
• If employers have collective bargaining arrangements in place, they must agree this change with the union in the usual way.
• Collective consultation obligations may be triggered if there are 20 or more employees that are proposed to be dismissed and re-engaged in order to effect the change to terms to be furloughed. You should take advice if you think this may apply.

The first point to note is that it is the position as at 14 February 2022 which is relevant, as whether or not a lease is a ‘qualifying lease’ for the purposes of recovering costs under the Building Safety Act was effectively frozen at that time.

If a leaseholder owned more than three properties in the UK (and the property in question was not their principal home) at that time, then the lease will not be a qualifying lease. The protections under the Act which prevent or restrict the landlord’s ability to recover the cost of remedial works through the service charge will not therefore apply to that lease (save potentially for the provision that costs cannot be recovered where the landlord is responsible for the defects, which does not expressly refer to qualifying leases).

The lack of a searchable database to assess how many properties a leaseholder has in the UK is however one of the difficulties to be resolved in this regard, as there is currently no way of searching the Land Registry to obtain a list of properties owned by one individual. The guidance appears to rely on the leaseholder completing the leaseholder deed of certificate being open and honest in this regard, and that deed of certificate being passed onto subsequent owners. Making false representations or failing to disclose required information in the deed of certificate may be a criminal offence, although reliance on this to discourage mis-reporting is clearly less satisfactory than having a searchable register.

In our latest “in conversation” webinar we discussed the outlook for the corporate transaction market. Whilst it would be a brave person to predict the future of anything at the moment given current circumstances, we were joined by two organisations who are very well placed to provide their views.

John Laud, Head of Corporate Banking for North and West Yorkshire for Barclays, his colleague Stephen Loureda from their Credit Analysis Team, and Jill Williams, Investment Director of Mercia Asset Management’s Growth Fund, were in conversation with Ward Hadaway corporate partners Adrian Ballam and Jonathan Pollard to share their thoughts about how the ‘new normal’ for the transactions market may look:

• With supply chain and forecast prediction challenges, how will banks and investors determine what represents a sound opportunity?
• How will distressed and opportunistic acquisition opportunities be funded, and what is investor appetite for such opportunities?
• How have seller and buyer pricing expectations been impacted as a result of the pandemic?
• How are funders reacting, and how should ambitious businesses respond to the very low, or even negative, interest rates?

We expect this video to be of real value to those businesses whose plans of buying, selling or investment may have been impacted by the current economic crisis, but who are looking at opportunities to determine how they may shape their futures – #gettingbacktobusiness.

Where one or more of the parties is represented, responsibility for making the arrangements for the remote hearing will fall on either the applicant or the first represented party. If no party is legally represented, the court office will contact the parties to explain that the hearing will be held by telephone conference and will send them instructions on how this is to be achieved.

All remote hearings must be recorded. The responsibility for arranging the recording will be addressed on a case by case basis.