The outbreak of Coronavirus (Covid-19) has had a deep impact on individuals and businesses around the world.
The primary focus for all is to ensure the health and wellbeing of family, friends and colleagues. As we deal with the ongoing effects of Coronavirus in our personal and business lives we continue to face new challenges, disputes and different ways of working.
Whether you need help with family matters, employment advice, you have been impacted by travel disruption or face disputes over business contracts, our Solicitors are still here to help you with advice and guidance.
Below we have provided information and guidance on some of the key issues, considering all the latest Government updates and advice.
These may contain force majeure clauses which might allow the contract to be suspended or terminated. There is no standard definition of what is or is not a force majeure event, what rights the parties have if one arises.
You should check whether your key contracts include force majeure clauses and consider whether the clause applies and what your options are. For example:
- does the clause allow for suspension of the obligations under the contract, or only for termination?
- How long does the event have to last for before the clause can be invoked?
- Does the clause apply to all parties/ obligations?
Whether you choose to rely on a force majeure provision will depend on what the clause provides for, and whether it is in your interest to terminate or suspend the contract. This may depend on how long the implications of Coronavirus last for, and could change over time.
If your contract does not include specific force majeure provisions, the contract may be “frustrated” if it becomes impossible to perform as a result of events outside the control of the parties. In these circumstances, the contract will come to an end, and it may be important to take advice to understand what the effect of this is.
If you are seeking to rely on your supply chain for essential delivery then it is still important to review your contracts to understand the rights your suppliers may have under force majeure provisions to delay or cancel delivery and how that impacts on any payments already made under contracts.
In the first instance, we would recommend approaching key suppliers and working with them to check what measures they have put in place to mitigate risks and the likelihood that their services/delivery will not be able to continue - this could include for reasons other than a shut down by the government (i.e. if the supplier becomes unwell). If consensus is reached with a supplier, simple variations to contracts could be entered into to amend the timescales for deliverables and the term of the contract.
Check your insurance policies, and if necessary talk to your insurance broker, to determine whether your policies cover you for business interruption and loss of revenue.
Some of the key issues around business interruption insurance include:-
- The circumstances of the closure or cessation of operations. At present, the UK Government have only issued guidance rather than passing legislation to enforce closure which will impact on recoverability under policies.
- Business interruption insurance policies are often linked to damage to or denial of access to premises, which may limit the coverage provided.
- Although Coronavirus has been listed as a ‘notifiable disease’, many business interruption/event cancellation refer to specified lists of diseases rather than to a general class of notifiable diseases.
Many insurance policies will not cover the current circumstances, and it is essential to look at the terms of your policy, to understand the types of loss that are covered, and how the policy ties in with losses you may be suffering under contracts or through loss of custom.
Lots of events and projects are being subject to short-notice cancellation at the moment. The consequences of this for each party will depend on what contract terms have been agreed. Usually termination/cancellation/refund rights are subject to quite specific commercial agreement so in many cases this will be quite clear-cut.
Many consumers will have refund/cancellation rights as law for routine purchases. Where termination is based on force majeure or material changes in circumstances, that will depend on whether the actual circumstances we are experiencing are addressed in the contract. Often they aren’t, because these clauses are typically not subject to extensive negotiation and in any event some of what is happening now was difficult to foresee and provide for.
It’s also important to understand the other party’s point of view because these situations aren’t ideal for anyone. In some cases, discussion and dialogue might find an outcome that, while not ideal, is workable for both parties.
It is also important to understand what insurance cover might be in place and notify insurers where you envisage there may be a claim.
We recognise that this is an uncertain and worrying time for our clients. In addition to concerns over their families’ health, it is completely understandable that the impact on your business is also a concern. In terms of assisting with re-structuring or re-financing your business, the key point to bear in mind is that the earlier options are discussed and explored, the more options that are available.
Our team have considerable experience in providing practical and commercial solutions for safeguarding businesses during economic disruptions, and we would urge you to make contact with us at as early a stage as possible if you need advice in this area.
In handling the operational impact of COVID-19 on your organisation, you may find that your require to collect and/or share more personal data (particularly health related data) than you did previously. For example, to prioritise high-risk staff members for home working or where employees are self-isolating and you require to inform other members of staff or customers they have recently been working with.
- Firstly consider whether this additional processing is necessary and to what extent – try and achieve the necessary aim without further processing e.g. to prioritise high-risk staff to enable them to work from home, your organisation only needs to know if they fall into a high-risk category rather than the specific health issue.
- Check any relevant privacy notice to identify whether this processing activity is covered off even in general terms e.g. to perform the employment contract.
Other data protection concerns may arise if your staff are to be working from home.
Ensure any IT equipment used e.g. laptops, mobiles etc. are encrypted and staff continue to use work email accounts and not personal accounts, which tend to be more vulnerable.
If it is necessary to take client files or documents off site, keep a record of who is taking what off site and provide information to staff on good practice security measures when working at home.
The UK Information Commissioner’s Office has acknowledged that it will be necessary for organisations to share information quickly and adapt the way they operate and it has stressed that data protection should not stop this albeit any measures should be proportionate. It has provided assurance that it will not take regulatory action against organisations where they have failed to meet the legal data protection standards as a direct result of Coronavirus. This includes failure to respond to Data Subject Rights Requests or Data Security Breaches within the statutory timeframe.
For more information about these and other Data Protection issues click here>>
The Chancellor and the Scottish Government have introduced a number of measures to support SMEs amid the disruption caused by COVID-19. Although the government has released initial guidance, specific details particularly in relation to the application processes are yet to be fleshed out.
We have addressed some of the key questions which businesses are likely to have at this time around these initiatives:
- Coronavirus Business Interruption Loan Scheme (“CBILS”)
- Non-domestic rates reliefs (discounts) and one-off grants
- Deferred tax payments
The Chancellor Rishi Sunak announced plans, yesterday, to revise the Coronavirus Business Interruption Loan Scheme (CBILS) to extend support for small and medium sized businesses affected by the coronavirus crisis.
The scheme originally went live on 23 March to offer loan facilities to SMEs struggling to secure commercial lending during these difficult economic times. £90 million of lending has been accessed by some 1,000 businesses so far. However, there have been concerns that lenders have been slow in meeting demands for help and that many small companies have collapsed as a result of not being able to reach the support quickly enough. Changes are being made to maximise the support available to SMEs.
Click here to read insight from Partner, Pamela Muir on these changes and how they will help businesses.
Following the latest developments and advice, the First Tier Tribunal (Housing and Property Chamber) has confirmed the following in response to the COVID-19 pandemic:-
- The Tribunal is making arrangements to close The Glasgow Tribunal Centre with only essential business continuing meantime.
- Until the Glasgow Tribunal Centre closes, applications will continue to be accepted by the Tribunal in readiness for fixing a case management discussion (CMD) or hearing. Applicants are strongly encouraged to submit applications electronically. However, it is expected that this may change at very short notice.
- Until any announcement is made by the Tribunal, the time limits for making an application still apply. If an application is not submitted in the prescribed manner, it is held until the Tribunal receives the last of any outstanding documents necessary. Applicants should therefore ensure that all necessary documentation is lodged with the application.
- For a submitted application where the Tribunal has assigned a date for a CMD or hearing, that CMD/hearing will be postponed to 28 May 2020 at 10am. This date is a universal date set merely to comply with the relevant legislation and will not be the date of the hearing or CMD. Parties should therefore not attend the Tribunal on 28 May 2020. You will be notified by the Tribunal before 28 May 2020 as to what will happen; rescheduled hearing and CMD dates will follow when the situation becomes more certain. Until CMDs or hearings are resumed, there is no procedure at present for the issue of an order for eviction or payment without the need for a hearing unless an exception under Rule 18 of the Tribunal’s Procedural Rules applies.
- Until any announcement is made by the Tribunal, where a decision has recently been issued by the Tribunal, the appeal period continues to run. Orders in such cases will be issued by the Tribunal administration, if no appeal is received or on conclusion of appeal proceedings if the appeal is unsuccessful; and
- Any proceedings which permit re-inspections or supervised access to properties will not take place until further notice.
The guidance issued from the Scottish Courts and Tribunal Services confirms that they are continually reviewing the operation of the courts and tribunals based on the Government’s response. Therefore, any guidance provided may be subject to change at very short notice.
Emergency legislation is being put in place in Scotland to prevent the eviction of commercial tenants who are unable to pay their rent because of the Covid-19 outbreak. The measures are set out in the Coronavirus (Scotland) Bill, which grants a host of new powers and measures to help protect the public, maintain essential public services and support the economy during the pandemic.
We have set out a summary of the measures affecting commercial leases and address some of the key questions that landlords and tenants are likely to have.
- What are the current rules for irritating (terminating) a commercial lease in Scotland?
- What are the emergency measures being put in place?
- How long will the emergency measures be in place?
- What will happen to unpaid rent over the next few months?
- What if an irritancy notice has already been served on the tenant?
- What if enforcement action to evict the tenant for non-payment of rent has already been raised?
- Do landlords have the right to terminate a lease for reasons other than non-payment of rent?
- What should landlords/tenants do if the tenant is struggling to pay rent due to Covid-19?
- Can tenants terminate a commercial lease early due to Covid-19?
- Does the extended notice period apply to commercial leases elsewhere in the UK?
Check your contracts of employment and staff handbooks to see if there is any provision for short-time working or temporary lay-offs which allows you to cut hours. Most contracts will not have such provisions so you need to engage directly with staff to see if you can quickly agree to changes to working patterns.
In most cases contracts will be silent on being able to work from home (if the role is suitable for that) so engage directly with staff about whether that is possible. Identify any employees or workers who will fall within the vulnerable categories. For pregnant employees who are near the commencement of maternity leave see if you can agree they start this from an earlier date, or that they take holidays before it commences.
Under the Working Time Regulations 1998 it is possible to require employees to take their 5.6 weeks (or 28 days) Working Time holidays by serving on workers but this requires notice of twice the length of holiday to be given, however see if you can reach agreement without having to serve notice. Importantly, keep the situation under review to determine whether more substantial changes are required.
Unilaterally cutting pay or hours could give rise to claims for constructive unfair dismissal or more likely unlawful deduction of wages so make sure you are communicating with staff why any such measures are required and how they will be reviewed.
Should redundancies become necessary at present the requirements to carry out individual and collective consultation (if 20 or more employees are at risk) still apply so take advice early about how you will go about this.
On Friday 20 March the Chancellor took the unprecedented step of introducing the Coronavirus Job Retention Scheme amid the crisis facing many businesses of having to immediately lay off staff. In the weeks that followed much needed guidance and clarity has been provided.
The Job retention scheme has now been extended until the end of April 2021 providing further support to businesses and furloughed employees until spring of next year.
Thorntons Employment team have provided a full round up of the guidance in the Employer’s Guide to the Coronavirus Job Retention Scheme.
For further articles and commentary from the Employment team on the Job Rentention Scheme, click here>
The Coronavirus Job Retention Scheme went live on 20 April 2020. Since its announcement in March, the numerous iterations of the government-issued guidance have given us an indication of what HMRC expect employers to demonstrate to be able to claim reimbursement.
One area of complexity which the guidance vaguely addresses is the possibility of furloughing employees who are entitled to other forms of statutory leave.
The Employment Law team have summerised how furlough interacts with both sick leave and paid parental leave here>>
On 26 March the Chancellor announced his plan to help self-employed individuals who are at risk of losing their livelihoods due to the Coronavirus. There is already a job retention scheme in place for the UK’s 28 million employees, as well as a number of schemes to support businesses. The government has been pressured to introduce similar measures to protect the 5 million self-employed in the UK. Our Employment team have covered the below list of questions in their latest update: UK Government Support for the Self-Employed
- Who qualifies for the scheme?
- What am I entitled to?
- What if I have been self-employed for less than 3 years?
- How long will the scheme be in place for?
- Can I continue to work?
- What do I need to do to apply?
- What if I have not filed my self-assessment tax return for 2018-19?
- When will the grant be made available and how will I be paid?
- What if I am struggling with cash flow at the moment?
- I pay myself a salary and dividends through my own company, can I apply?
- Was there a sting in the tail?
Employers have a vital role to play in preventing the spread of coronavirus.
Many employees can feel anxious and concerned about their health, safety and wellbeing. It is important that employers communicate with their staff in order to allay these concerns to the best of their ability and take clear and decisive action.
Personal hygiene is also an important preventative measure to curtail the spread of the disease. Employers have a duty of care to their workforce and should ensure workers have access to appropriate hygiene facilities such hot water, soap, hand sanitiser and bins to dispose of used tissues.
Managing the safety, health and security of workers:
Professions that have a greater exposure to the virus are health care workers in acute care hospitals, rehabilitation hospitals, mental health hospitals, long term care facilities, emergency departments, and others who work close to their clients or patients.
Self- or group-isolation:
In the event that an individual or a household of individuals need to isolate, employers must consider how they will facilitate employees placed in or working under self-isolation.
It normally takes several weeks, if not months to procure goods, services or works. If the coronavirus puts you in the position where you have an unanticipated urgent need to procure goods, services or works, it is possible to drastically shorten this period.
In the case of procurements above the EU thresholds, the period can be reduced to around 3 weeks. In the case of contracts below them, there may be no need to put the contract out to tender at all. The key to being able to use either route is that there must be extreme urgency and that urgency must not be attributable you.
If the coronavirus has created the urgency, the routes might be available. Whether that is the case will depend on the individual facts and circumstances. We are happy to discuss these with you.
The Scottish Government has recently issued guidance that most building sites should be closed. For the moment, however, this is guidance and not an instruction.
As it is not a requirement, the contractual issue for employers and contractors is who would bear the consequences of voluntarily closing the site in light of that guidance.
For the employer, the situation has not changed. If it instructs the closure, then the contractor can claim an extension of time and for reimbursement of his additional costs.
For the contractor, the position is much less certain. It is not being forced, by law, to close. It is not clear whether such a voluntary closure would be seen as necessary consequence of such guidance. This is especially the case given the UK Government guidance is that sites should not close.
As always, the answer in each case will depend on the particular facts and circumstances of the project. Our advice remains that both employers and contractors should give consideration to discussing with each other the best way forward to minimise delay and costs for them both.
Charities have had a vital role in the response to COVID-19 so far, with demand for essential support like food parcels, emergency accommodation, and mental health services, amongst many others, skyrocketing. Many charities are working around the clock to support communities through the crisis. Undoubtedly they will continue to be relied upon to help society recover from the impact of the virus once the lockdown is over. However, government ordered shop closures and the cancellation of fundraising activities have cut off a key source of income, leading to some charities facing collapse.
On 8 April 2020, Chancellor Rishi Sunak announced £750 million of funding for the charity sector to help keep charities afloat during the COVID-19 outbreak. Of those funds, £30 million will be allocated to the Scottish Government.
Our Charities team have covered the below list of questions in their latest update: Coronavirus Support for Charities in Scotland
- How will the funding announced by the Chancellor be made available?
- What other financial support and emergency funding is available?
- What can we do to support our people and protect our staff?
- What should we do about charity meetings and governance when lockdown restrictions are in place?
- What if we want to change our purpose to help with the outbreak?
The Government has clarified the situation of contact with children in Scotland, but we are aware of a number of contradictory reports still circulating.
Up to date Government guidance can be found here>>
The guidance is that we should all stay at home, and only leave the house for the following reasons
- Shopping for basic necessities, for example food and medicine, as infrequently as possible.
- One form of exercise a day, alone or with members of your household
- Any medical need, or to care for or help a vulnerable person
- Travelling to and from work, but only where this work absolutely cannot be done from home
Crucially, Government advice is that where parents do not live in the same household, children under 18 can be moved between their parents’ homes, unless they need to self isolate.
However, it of course remains open to parents who share care to come to their own arrangements about how Contact will take place at this challenging time. These are matters our team can assist with.
As outlined in our last Blog, parents might, for example, be able to agree that Contact changes in the short term.
This might mean that direct Contact is still agreed, but only at or close to a residential parent’s home, or perhaps agreeing that overnight Contact be stopped at the moment.
It might possible in these circumstances for parents to agree that Contact reduced as a result of these difficult times will be increased once the crisis is over.
However, if your child is unwell with Coronavirus, or they or someone in their household is affected by symptoms which mean they need to self isolate, then they should remain where they are at the moment.
Where a person has an on-going financial obligation for a child of former spouse, the current economic uncertainly may cause concern.
Aliment is based on the needs and resources of both parties. If a paying spouse suffers a significant decrease in income, their ability to meet this obligation may be affected, at least temporarily. Child maintenance is similarly based on the paying parent’s income which may be temporarily effected.
It is important to discuss matters in advance where there is potential for issues arising. We can assist where you require specific advice or help engaging with a former spouse or your child’s other parent.
The Foreign and Commonwealth office is advising not to travel to outside of the UK unless strictly necessary for at least 30 days.
So what happens if you can no longer go on your booked and paid for holiday? What are the chances you can get your money back?
Generally when a holiday is booked you enter into a contract with the travel agent and their standard terms and conditions will set out what happens in the event that the holiday cannot take place. If the holiday cannot take place due to an event out with parties’ control – such as coronavirus – the contract might be ‘frustrated’. That means the contract is unable to be performed due to circumstances out with parties’ control.
If your contract is frustrated then, in the majority of cases, any losses monetary or otherwise will fall where they lie meaning if you’ve paid your deposit or full amount, you are unable to claim this back.
The exception would be if your insurance policy covers extreme cases like this or if the travel company you booked with is able to claim on their own insurance.
If your holiday is a “package holiday”, the situation may be different and the travel operator may be obliged to refund all that you have paid if your holiday cannot take place.
In this unprecedented case of coronavirus and the current travel restrictions, it is important to take legal advice to find out what the position is in relation to the particular circumstances of your holiday.
If you are making a personal injury claim, as part of the normal process, you would undergo a face to face examination with a suitably qualified expert to determine what injuries you suffered as a result of the accident, what treatment you may still require and how long it will take you to recover from your injuries. Given the COVID 19 pandemic, such medical examinations are currently not taking place and at present it is unclear when face to face examinations for non-emergency cases are likely to be reinstated. Without a medical report, insurers will not settle your case.
In some cases, it may be possible to have online appointments with a medical expert to allow them to prepare a report. They would have access to your medical records and would conduct their examination securely online. Following this, they will prepare a report detailing their examination and findings which can be presented to the insurers and used to attempt to negotiate settlement of your case. This type of examination is not however suitable in all cases. Our specialist personal injury team can give you advice as to whether an online appointment is suitable in your case.
In cases where an online appointment is not suitable, a face to face examination will be required. It may however be possible to seek an interim payment from the insurers until such time as your case can continue. Insurers are not obliged to make interim payments. Our specialist personal injury team can give you advice as to whether an interim payment may be possible in your case.
Although these are unprecedented and uncertain times, our key advice regarding Wills remains the same as it has always been - it is vitally important that you have a Will in place in order to ensure that your estate is dealt with according to your wishes and unnecessary cost, delay and upset can be avoided should you pass away.
We understand that world events may have brought more prominence to the need to make a Will, or to update an existing one.
We have systems in place to ensure that we can help notwithstanding the current restrictions and social distancing. We are well equipped to handle all enquiries from an initial enquiry right through to the signing stage.
If you are looking to either put a new Will in place of update an existing Will, you can contact our specialist Private Client team by phone or email. Our solicitors are happy to answer any questions or concerns you may have about your Will and are happy to walk you through our processes to ensure creating your Will is as seamless and hassle free as possible.
We can then set up a virtual meeting or a telephone call to discuss your needs, provide advice and then prepare the documents needed. We can then send you the drafts for approval electronically and prepare the final versions for you to sign. If you don’t have printing facilities at home, we can still arrange for a copy to be sent by post.
The technology we have in place at Thorntons allows us to help in situations where it is not possible to have a witness present with you when you sign a Will and we can talk you through all the steps needed.
We know that the current restrictions on movement and social contact can create challenges when it comes to signing documents. If a virtual meeting or electronic approval isn’t something you have used before, don’t worry we will help you through the process.
During these unprecedented times, the need to have Powers of Attorney in place is even more vital. A Powers of Attorney enables an individual to give other named people the power to act on their behalf. While this normally covers a situation where a person subsequently loses the ability to make decisions due to mental capacity, it can have a much wider use.
A Power of Attorney can allow a person to act on your behalf to carry out day to day tasks such as interacting with public and private organisations like the council or a bank at a time when you are fit but self isolating. This will be especially useful if, under Government guidelines, you are deemed to be in a vulnerable group, and you cannot leave your home.
Some of the rules about how Powers of Attorney are put into place have altered because of the current restrictions, but we can still assist and guide you through the whole process.
To put a Powers of Attorney in place, you must have mental capacity. As face to face meetings are not possible at this time, we can meet you virtually using video calls. During these calls we can provide advice, prepare any required documentation and send it to you for consideration. Subject to your approval, we can arrange for the documentation to be sent to you electronically (for printing at home) or by post.
When it comes to signing the documents, the process is different from normal because of the government restrictions. A Solicitor will arrange a virtual meeting to talk you through the signing process. This also allows the solicitor to witness your signature and sign the necessary Certificates which must accompany the Power of Attorney. Once the document has been returned to us, we can arrange for it to be sent for registration.
Our Private Client team are also available now to answer any questions or concerns you may have about any existing Power of Attorney.
If a virtual meeting or video call isn’t something you have used before, don’t worry we will help you through the process.
One significant consequence of complying with the current rules, is that we, and our clients as buyers and sellers of residential property, are obliged, wherever possible, to postpone or defer entry dates and the settlement of sales and purchases. This move is intended, as with other restrictions now in place, to inhibit unnecessary contact between and among individuals, and so limit the opportunity for transmission of the Coronavirus.
The need to defer is, in any event, reinforced by the fact that there are serious logistical difficulties in completing moves, with removal firms shutting down, the closure of the Land Registers’ Application Record making it impossible to register titles, and some lenders declining to release funds.
Only in cases where the failure to complete on time will result in “severe financial or personal consequences” to one, other or all of the parties to any transaction, should efforts be made to complete transactions, rather than postpone settlements. If, of course, your transaction falls within that category then we will do all we can, so far as within our power, to get the transaction over the line.
The current issues are out-with the control of the legal profession, and the only proper advice that we can currently offer our clients is to comply with the advice and rules, and seek, wherever possible to defer completion of your transactions.
That will, we appreciate give rise to some concern to those who are presently tied into contracts with set dates of entry, and the possibility that failure to complete on a due date will lead to penalties, or to the loss of a deal completely, should the “lockdown” remain in place for some time, as seems likely. There are no definitive answers to those concerns at present though it must be hoped, given that this current crisis affects everyone equally, that the goodwill and common sense of those engaged in transactions at the present time, will resolve most issues. We will certainly play our part in seeking to achieve a sensible solution to problems as they arise.
For those who have been engaged in negotiations but who are not yet tied into a contract, then at any time either party to those negotiations can still “walk away”. There has been some discussion around how it might be possible to conclude a contract, perhaps by reference to a date of entry sometime after the date the current (and quite possibly future) restrictions are lifted.
Again, however, no one knows how long this will last.
Many prospective buyers may be concerned that the financial effects of the crisis will affect their ability to proceed. Lenders may shut down for new business until the restrictions are lifted. Many, and probably most, people who have been involved in negotiations will not want to be tied into a binding contract at present if it can be avoided.
Our advice in these circumstances has to be to sit tight and await developments.
The more closely we follow the rules, advice and guidelines, the sooner this will all be over and we can pick up the threads, in most cases, where we left off.
We continue to be available to answer your questions as best we can.
Regulated by the Registration of Births, Deaths and Marriages (Scotland) Act 1965, the Marriage (Scotland) Act 1977 and the Civil Partnership (Scotland) Act 2004, the process of registration is something we never have to consider until an event in our lives triggers the need.
At the moment the registration of births, marriages and same sex civil partnerships are on hold. The registration of deaths continues but in a different format.
Click here to read more about the current processes for registration.
If you have any queries in relation to these or any other matters, please do not hesitate to get in touch, even for an informal chat.
We have plans in place that will allow us to continue to support all of our clients remotely and all teams will be available by the usual phone numbers and email addresses. We will continue to hold face to face meetings where absolutely necessary but we are also extensively using our video conferencing technology (Lifesize, Skype, Microsoft Teams, Facetime and others) to conduct remote meetings.
We appreciate that this is a difficult and fluid situation and we continue to closely monitor and follow UK and Scottish Government advice, as and when it is issued. We are ready to support our clients through these most difficult of times.