What type of matters are the Courts still dealing with?

The government released further clarification on the Coronavirus Job Retention Scheme on 4 April. The wording referred to concerning public sector organisations and organisations receiving public funding remains the same.

The revised guidance does provide a helpful insight into how HMRC will deal with applications made to it for assistance under the scheme. It appears that there won’t be a particularly forensic approach adopted by HMRC. The guidance says you can furlough staff if you cannot maintain your current workforce because your operations have been severely affected by coronavirus.

It goes on to say that all employers are eligible to claim under the scheme and the government recognises different businesses/organisations will face different impacts from coronavirus. The need to demonstrate the impact of coronavirus on your business/organisation is not one of the criteria businesses/organisations are going to need to satisfy, so the government does not appear to intend to set a specific test to determine if a business/organisation is “severely impacted by coronavirus”. It is hoped that this should provide additional comfort to publicly funded organisations facing significant restrictions to their operations during the Covid-19 crisis.

The current situation with the coronavirus pandemic has presented obvious challenges to the effective and fair operation of the Court of Protection (COP). Remote access to the COP has therefore become a necessity to ensure that hearings continue to provide proper access to justice. All parties involved in such cases have a responsibility in achieving this primary aim.

With the loss of face-to-face meetings in the current situation, video conferencing has taken centre stage. But how do you do that in a compliant way? Here are some of the main high-level data protection issues to consider when selecting and implementing a new third party provider’s video conferencing system.

1. Make sure you do your due diligence on the security measures offered by the provider. Clearly you can’t visit them, so look at the information offered publicly by the provider and read good quality, reliable, third party sources and ask the provider questions directly. Also ask any other organisations you know that use the provider. Document all this.
2. If personal information is being sent outside of the UK/European Economic Area, make sure that transfer complies with GDPR. If it’s a US provider, is it registered in the EU-US Privacy Shield list or does it offer a model clause contract (you’re likely to need the 2010 version)? Or is the service provided from a country whose data protection laws offer equivalent protection to those in Europe? Look at the support service as well as the hosting. Document this.
3. Make sure you put a compliant processor agreement in place. The provider should offer one as part of the contract terms. Check it meets GDPR requirements.
4. You’re likely to need to update your privacy notice, particularly if you’re going to record calls. Provide participants with a short message and link to the privacy notice in the meeting invite and on any registration page.
5. Create or update other GDPR-mandated documentation – for example, depending on your use, you may need a legitimate interests assessment and to update your record of processing.
6. Finally, configure and use the system in a secure and compliant way. Look at the settings/options carefully and think through the security and compliance implications of each. That could include deciding who in the meeting can share their screen; whether or not you use passwords for participants; whether or not to record, and if you’re going to record, where to store the recording. Document your decisions and the reasons for them.

The ICO has said it understands that resources, whether they are finances or people, might be diverted away from usual compliance work during the pandemic. However the last thing you need at the moment is to create a bigger problem than the one you are trying to solve. So do the best you can, ask for help from one of our specialists if you need it, and keep the whole thing under review.

On 16 April 2020, Ian Hulme, the ICO’s Director of Assurance, posted a blog for business owners, employers and managers about how to safely roll out the latest video conferencing technology.

On 21 April 2020, the NCSC published security guidance for organisations on choosing, configuring and deploying video conferencing services.

One of the key legislative requirements of EMI is that the employee satisfies the working time requirement, which is that they work at least 25 hours per week in the company or, if less, 75% of the employee’s total working time. If the working time requirement ceases to be met, then there is a “disqualifying event”. That means that the tax benefits of EMI ceases. It may also mean that the option lapses, but that depends on the specific terms of the option.

An employee who has been furloughed is by definition no longer working 25 hours/week and therefore on the face of it, there is a disqualifying event. However, the Government has tabled an amendment to the Finance Bill currently going through Parliament providing in effect that time not worked because an employee has been furloughed counts as working time, both for determining whether the working time requirement is met initially and whether there is a disqualifying event. Provided this amendment is enacted, this should address the issue.

Contractors working for public sector organisations who are deemed employees for IR35 purposes may be eligible to be furloughed provided they are paid via PAYE. In this scenario the agreement to furlough would be made between the contractor’s personal service company (PSC) and the fee payer (usually the agency). The parties would agree that the contractor will carry out no work for the public sector organisation while furloughed and the fee payer would apply for the grant.

At the moment the guidance states that in order to be eligible a claim for furlough must have to have been submitted by 31 July 2020 for a period of 3 weeks between 1 March and 30 June 2020.