What are the temporary adjustments to Right To Work checks?

After 25 March 2020, and until 30 September 2020, a landlord can only start possession proceedings against a tenant if they have served 3 months’ notice upon the tenant – irrespective of any grounds relied upon.

On 27 March 2020, the Court introduced new rules to put all possession proceedings (except against trespassers) on hold until 25 June 2020 – it means that the Court cannot make an order for possession or any other order that would cause someone to be evicted during that time.

These rules do not just apply to tenants who have fallen into rent arrears.

On 5 June 2020, the Government announced that this stay would be extended further until 23 August 2020.

This means that you can issue new possession proceedings (provided you have complied with the new temporary rules in relation to notice periods, if the notice was served since 25 March 2020) and you can continue with existing possession proceedings.

However, any progress you may be able to make in dealing with those proceedings is likely to be very limited – the Court will allow you to comply with directions orders that have already been made but non-compliance will not be punished (at least for the time being).

These rules, and the latest announcements, are in keeping with the Government’s expectation that landlords show compassion towards affected tenants and that all parties will work together to establish a suitable repayment plan to allow tenants to repay the arrears at an affordable rate.

Many will have worked collaboratively with their suppliers and customers to deal with the immediate public health crisis. This will have meant offering flexibility as to contractual arrangements, whether in delivery dates, volumes of goods or services supplied, or even in the specification of what has been delivered.

If this is the case, it is important that businesses now do their legal housekeeping and make sure they have a proper record of what has been agreed. Unfortunately, our experience shows that many legal disputes arise out of amendments to contracts, typically where the parties to the contract each have a different view about what exactly they agreed to change.

We would therefore advise businesses to review any amendments that they might have agreed either verbally, by email, or otherwise, and consider whether they need to be captured in a more formal way which will make clear exactly what has been agreed to be varied, and (where appropriate) how long that variation will remain in force.

It’s also important to remember that some contracts contain provisions that set out specific requirements about how amendments are to be made. For example, they might require that amendments are made in writing (rather than verbally). These “No Oral Modification” clauses are commonly found in commercial contracts, and the courts have recently shown that they are willing to enforce them.

Failing to deal with amendments in accordance with contractual requirements could therefore have a serious impact on businesses as they recover from the disruption caused by the lockdown. If they end up in dispute with a customer or supplier, a business could find that the contract has not actually been amended in the way that they think – potentially leading to legal costs and liabilities at the worst possible time.

State aid rules are contained in the Treaty on the Functioning of the European Union (previously referred to as the Treaty of Rome). The State aid rules prohibit the use of state resources, or any public support with an economic value, which given selectively has the capacity to distort trade by favouring certain undertakings, or the production of certain goods, and which has the potential to affect trade between Member States. Where aid is present it must not be granted unless it has been specifically approved in advance by the European Commission or benefits from a general exemption to the rules.

In general, the rules apply to all State actions which might assist businesses including:

• Grants
• “Soft” loans
• Selling to business at an undervalue
• Buying from business at an overvalue

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.

The Business and Planning Act 2020 entered the statute books on 22 July 2020. Section 18 of the Act includes provisions for the extension of the date by which a reserved matters application must be submitted where the original date falls between 23 March 2020 and 31 December 2020. Where the original time limit for the submission of reserved matters is on or after 19 August 2020, the relevant conditions will be automatically read as requiring the reserved matters application to be submitted by 1 May 2021.

Where the original time limit for the submission of reserved matters is before 19 August 2020, an application will need to be made to the LPA for an Additional Environmental Approval (“AEA”), which the LPA must determine within 28 days otherwise the approval is deemed to be provided. The purpose of the AEA is to consider whether the environmental assessments carried out at the time of the original outline determination remain valid and up to date, and where that is not the case, the AEA will be refused. In such circumstances a new planning application will be required where an application is now out of time to comply with the original date for submission of reserved matters.