Further Government Announcement On Furlough Scheme

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Yesterday the Government announced that in relation to the Coronavirus Job Retention Scheme (CJRS) that whilst it will close to new entrants at the end of June this will not be applicable to parents on statutory maternity and paternity leave who return to work in the coming months even after 10th June cut-off date.

However, this will only apply where they work for an employer who has previously furloughed employees.  An important announcement that has dealt with what would otherwise would have been an unfair and discriminatory situation for those that have been on maternity or paternity leave.

Our employment law specialist, Jennifer Carpenter, solicitor and partner can answer any queries or concerns you have about furlough leave, employment terms, redundancy and other employment related issues.

Furlough Leave Update

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10th June 2020 – this is the last date for workers/employees not previously furloughed to be placed on furlough leave and for the employer to benefit from the Coronavirus Job Retention Scheme (CJRS). The scheme will close to new entrants on 30th June, meaning that from 1st July employers will only claim under the CJRS who have previously been furloughed for a minimum period of three weeks prior to 30th June. 10th June is the very latest to have had three weeks on furlough before the end of the month.

The CJRS will have greater flexibility come 1st July where furloughed employees/workers will be able to work less than their usual working hours and employers will pay them for the hours worked. The CJRS will continue to make furlough payments for the remainder of their normal hours that they do not work, up to a maximum.

IMPORTANT FACTS TO REMEMBER:-

  • There is no legal right or entitlement to be placed on furlough leave, although an employee/worker could make a request to be considered for such leave to their employer. It is, however the employer’s decision.
  • There is no right to receive redundancy instead of furlough leave.
  • There is no right to be placed on furlough leave as an alternative to redundancy.
  • An employer cannot force furlough leave upon an employee.
  • An employee cannot be required to use annual leave entitlement whilst on furlough leave.
  • Employers can furlough staff who are required to stay at home because they are shielding in line with Public Health Guidance, or because they need to stay at home with a family member that is shielding.
  • Non-discriminatory criteria must be used by the employer in selecting who to place on furlough.
  • An employer should be aware that a claim must not be made under the CJRS if it is abusive or otherwise contrary to the “exceptional purpose” of the CJRS, which is stated to be the payment of employment costs in respect of furloughed employees “arising from the health, social and economic emergency in the United Kingdom resulting from coronavirus and coronavirus disease”.
  • Employers are not legally obliged to “top up” the CJRS pay to the employee/worker.

Our employment law specialist, Jennifer Carpenter, solicitor and partner can answer any queries or concerns you have about furlough leave, employment terms, redundancy and other employment related issues.

Furlough Leave Update Information

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All employers and organisations please be aware that in order to qualify for the subsidy from the Government’s Coronavirus Job Retention Scheme all employees/workers furloughed must have been given written instruction that they cannot do any work for the organisation that has placed them on furlough, and have consented to this in writing. This is contained in the Treasury Guidance to HMRC dated 15th April 2020.

The scheme has very recently been extended until the end of June.

For all your furlough leave questions answered, whether you are employer or employee, please contact our employment specialist Jennifer Carpenter, Solicitor and Managing Partner.

Some FAQs About Furlough Answered

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Some FAQs about furlough, answered by employment law specialist, Jenny Carpenter, Solicitor.

Do you have to be employed to be placed on furlough leave?

No, the Coronavirus Job Retention Scheme applies to the self employed, contractors and zero hour workers.

Can furlough leave be used for those shielding at home from Covid-19 as they are in the vulnerable group of individuals?

Yes, the Scheme Guidance makes it clear that those that are shielding in line with public health guidance can be placed on furlough leave by their employer. However, this is only the case if the employee cannot work from home and would otherwise be made redundant.

Can a worker/employee with caring responsibilities be placed on furlough leave?

Yes, if for example an employee is unable to work because there is no child care provision (particularly relevant as schools are closed) then they can volunteer for furlough leave. However, an employer is not obliged to place an employee/worker on furlough.

Can apprentices be placed on furlough leave?

Yes, and they can continue with training during this time, but not work.

Can a furloughed worker/employee undertake voluntary work whilst on furlough leave?

Yes. But not for the organisation that has placed them on furlough leave.

Can paid work be done by a worker/employee on furlough leave?

This depends. Paid work cannot be done for the organisation that placed them on furlough. However, if the worker/employee’s contract of employment permits them to have more than one job then there is no reason why they cannot take up paid work elsewhere.

Can a Nanny be placed on furlough leave?

Yes, the Guidance makes it clear that those employed by individuals can be placed on furlough. However, they must be paid through PAYE payroll and have been on the payroll as at 28th February 2020.

Can a director of a company be placed on furlough leave?

Yes, provided the decision is made by the Board of Directors and documented. It does of course mean that the director cannot then do any work for or on behalf of the Company during the period of furlough. The director can though carry out his/her statutory obligations under the Company Act 2006.

Employment Law Terms Explained

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As a result of the Coronavirus pandemic we are experiencing unprecedented employment circumstances and lots of different terms are being used to describe a worker/employee’s situation:-

Laying off

The employer provides the employee with no work, nor pay for a undefined period, but retains them as an employee.

Short time working

The employer provides less work (normally less hours of work) for less pay but retains the employee.
An employer should only impose one of the above if the contract of employment makes full provision for this, otherwise the employee would have a claim for breach of contract.
In certain circumstances where an employee is put on short time working or lay off they become entitled to claim a statutory redundancy payment. This is only where the employee has at least two years continuous employment with the employer and the statutory scheme for claiming redundancy pay is followed.
To be able to claim the employee must have been laid off or kept on short-time working (or a combination of both) for at least four or more consecutive weeks; or a total of six weeks (of which no more than three are consecutive) in any period of 13 weeks.

Redundancy

A potentially fair reason to dismiss under the Employment Rights Act 1996, either due to:-

  1. A place of work closure
  2. A company/business closure
  3. There no longer being a need, or there is a reduced for employees of a particular kind.

It is worth noting, however that notice must still be given to the employee that the employment is to be terminated.

Furlough leave

With the worker/employee’s consent they agree to go on paid leave for a minimum period of three weeks whereby they do not undertake any work and are retained as an employee. The employer can utilise the Government Retention Scheme and recoup up to 80% of staff wage costs via HMRC. The employer is not obliged to pay 100% of pay during furlough leave. Forcing an employee to be furloughed would amount to breach of contract. Therefore, it can only be done with the employee’s express consent.
There is no right to request furlough leave, nor any right to request redundancy as an alternative.

For advice as an employee or employer our employment law specialist solicitor Jennifer Carpenter is available at [email protected].

Do I Need To Appoint A Guardian For My Children In My Will?

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If you have children under 18 and you are making a Will, you should consider who would look after your children if you were to die while they are still under 18.

Writing a Will can give you peace of mind that your children will be cared for by whom you choose to look after them.

It may be that you have blood relatives who you would not want to look after your children. A Will allows you the opportunity to appoint who you would like to act as guardian for your children. You can also set out your reasons for the appointment in your Will.

If there are disagreements after your death, your Will and any additional wishes you have left would be used as evidence in court for your reasons for your appointment. Your reasons would be taken into account and carry weight with the court.

If you do not name guardians in your Wills and several potential guardians come forward, the court would have to decide to make a child arrangements order setting out with whom the child should live. The applicant who the Judge feels is best able to meet the needs of the child would be appointed. The court would need to take into account all the circumstances such as the child’s relationship with the proposed guardian and the wishes and feelings of the child him or herself in line with a child’s age and understanding.

If you were to die and the other parent of your child has parental responsibility, they would automatically become the child’s guardian irrespective of whether the parents are living together or not. If you choose someone other than the other parent with parental responsibility to be a child’s guardian in your Will, that person will not automatically become a child’s guardian. If they want to become the child’s guardian on the first parent’s death, they need to make a court application and ultimately if will be the court’s decision as to who is the best guardian to meet the children’s needs. The court will try to make a decision based on what is best for the child’s welfare using the welfare checklist which we can advise you on.

When choosing a guardian, you should consider the size of their own family and whether it would be feasible for them to take on your family. They may also not live locally which would involve a move of schools and friends for your child. They may also be older than you and within the period of guardianship may struggle to look after your children.

In your Will you can provide your guardians with additional assistance. If you own your own property; you can specify that your guardians live in your property with your children to prevent as much disruption to them as possible.

If you anticipate that your guardians would need a bigger car or would need to build an extension to their own property; you can provide a power for your executors to loan them money for this purpose.

Coronavirus

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Adams Harrison Coronavirus Statement 24th March 2020

We are committed to adhering to the Government’s instruction that people should stay at home wherever possible. To ensure we meet our professional duty in relation to current instructions, we have put in place just  skeleton staffing levels in our offices dealing with work that is absolutely necessary.

We already have a number of key staff working from home who will continue to do so during the lockdown.  We will remain able to provide legal advice and assistance.  All our staff that are working have access to their e-mail accounts, so e-mail is therefore  the best method to communicate with us.

Alternatively you can telephone 01799 523441 for urgent advice, or contact us at [email protected] if you do not have an e-mail contact already.

If you have a forthcoming court hearing, or a current property or  commercial transaction we will contact you by telephone or e-mail in order of priority within the next two days. We can continue to progress your matter as best we can in the current circumstances and we will keep you updated.  

Thank you for your understanding and anticipated co-operation.

Contracts Frustrated by COVID-19

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As a result of the ongoing coronavirus pandemic issues may have, or will arise regarding the performance of contracts you may have entered into. Following the recent measures issued by the government a number of events or services have been unexpectedly cancelled. As a result of this a party may find it impossible to fulfil their obligation under the contract.

As a general rule, if performance of a contract becomes more difficult or even impossible, the party who fails to perform is liable in damages. Frustration is an exception to this rule.

In the case of Krell v Henry [1903] a situation occurred when King Edward VII fell ill with appendicitis two days before the celebrations that were to take place following his coronation. Many people had entered into contracts in advance of the celebrations, by hiring rooms to watch the procession, or boats to watch the accompanying naval review. The events were originally scheduled to take place in June of 1902, but had to be postponed until August 1902 (sound familiar to you at all?). When the celebrations were postponed, they argued that the contracts had been frustrated, and that they should not be liable for the sums they had agreed to pay. This and other cases later became known as the Coronation Cases.

What is Frustration?

Frustration is where the terms of a contract are brought to an end on the basis it is impossible to carry them out.

If a contract has been frustrated it is automatically discharged and the parties are no longer subject to their future obligations. The contract is brought to an end immediately and it is neither party’s fault. This means neither party can claim compensation even if the other party has not carried out their obligations under the contract.

When determining whether a contract has been frustrated the Courts will need to examine all the circumstance of the particular case in hand. In general terms, there are a number of conditions that must be met to determine if a contract has become frustrated.

At Adams Harrison we can advise you on contractual disputes, to include whether the contract has become frustrated, particularly in light of the current circumstances brought about by the coronavirus pandemic. Contact one of our offices to discuss how you can provide us with a copy of the contract you require advice about.

Grandparents:- Their Role, Rights And Responsibilities

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The role of grandparents continues to evolve and perhaps become increasingly more important. Almost two thirds of all grandparents look after their grandchildren regularly, often whilst parents are at work. A contributory factor is the cost of childcare which means there are many informal family arrangements.

The Children Act 1989 as amended requires grandparents to seek permission (leave) of the court to file a section 8 application. This creates a two stage procedure, except in some exceptional circumstances where a grandparent may make an immediate application.

A grandparent has no parental responsibility in law which means they cannot make major decisions such as about medical treatment, schooling and for travelling outside the UK which can present difficulties for grandparents caring for their grandchildren. In the case of Re J (Leave to Issue Application for Residence Order) [2003] 1 FLR 114, Thorpe J suggested that trial judges should have greater appreciation for the contribution made by grandparents for the care of their grandchildren.

A large number of grandparents may sadly lose contact with their grandchildren when parents separate. The first step must always be to try to resolve issues within the family by agreement or through mediation.

Which court orders can grandparents apply for? The most likely court orders are a Special Guardianship Order (Section 115 of Adoption and Children Act 2002) or a Child Arrangements Order (Section 8 Children Act 1989 as amended).

  • A Special Guardianship Order lasts until a child is 18 unless changed by earlier court order. It enables the special guardian to have parental responsibility for the child and to take most decisions about the child without consulting the parent. Major decisions such as changing the child’s surname or taking them abroad for more than three months require agreement of the parents or the court’s permission. The child retains birth family links albeit that the parental responsibility of the parents is reduced.
  • A Child Arrangements Order can be granted to grandparents to confirm that the grandchild lives with them, provided they have the court’s permission to seek such an order or are exempt from doing so. A Child Arrangements Order granted to grandparent(s) can set out who the child lives with and how much time the child will spend with the parent(s) or other persons with parental responsibility.

Support For Inner Wheel Saffron Walden

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Adams Harrison were very pleased to support Saffron Walden Inner Wheel’s Rock and Roll Charity fund raiser.

We were delighted to learn that they raised a total of £1579.50 for the Together In Sound organisation as explained in the thankyou letter below from the Presidents of Inner Wheel.

Inner Wheel Saffron Walden Thankyou Letter 20 Feb 2020