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.

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.

Employment Law Changes – Are You Ready?

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From 6th April 2020 all new employees, but also workers/joiners to a company, will have the right to a written statement of terms on or before the first day of employment, whereas it is currently for employees only and within two months of employment starting. This change has been brought about by an amendment to the Employment Rights Act 1996 as a result of the introduction of The Employment Rights (Employment Particulars and Paid Annual Leave)(Amendment) Regulations 2018.

Do you know what needs to be included in a written statement of terms? It does not necessarily have to be a formal contract of employment but there is prescribed information that must be provided, much sooner than previously and now to workers as well as employees.

There is a right for employees and workers to bring Employment Tribunal claims if the organisation engaging them fails to do this.

The Government has said that the intention is to ensure that workers can access fair and decent work, that both employers and workers have clarity on the employment relationship, and that the enforcement system is fair and fit for purpose. Above all, the direction of travel is to protect vulnerable workers and improve workers’ understanding of their rights.

The best way to ensure compliance is to have a properly drafted contract of employment that is ready to pass to a worker or employee at the latest on the day they start work. If you ask us to prepare the contract we can include all the requirements and information that an employer is obliged to give. The new Regulations include additional information that must now be provided. For example, probationary period details and days of the week worked must be provided for those starting work after 6th April.

There is information that the Regulations state the employer can choose whether to put in the main written statement of terms (contract) or in “reasonably accessible document(s)” but the following information must be provided:-

  • Terms for absence due to incapacity and sickness and the position regarding sick pay.
  • The notice periods for termination.
  • Information relating to grievances and disciplinary.
  • Terms relating to pensions and pension schemes.

Even if there is not a legal requirement to contain certain information in the written statement of terms it may be advisable to have additional terms to protect your business, for example post termination restrictions.

Contact us to arrange an appointment with Jenny Carpenter, specialist employment solicitor and partner to discuss your requirements.

Where There’s A Will There’s A Relative!

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Making a Will is a wise and important thing to do. You will have peace of mind knowing that your estate (that is, everything you own) will pass to your chosen beneficiaries.

Without a Will, your estate could pass to relatives you have not seen for years.

However, some people chose not to include a member of family in their Will. This may be a child or sibling and could be for a number of reasons, for example, a falling out or estrangement and even though most people would like to think that the relative would not try to contest the Will, there is always a risk that the relative could claim under the Inheritance (Provision for Family and Dependants) Act 1975 and if this happens then dealing with your estate can be lengthy, complex and expensive.

If you have a reason for leaving a relative out of your Will then we strongly recommend that you leave a personal letter with your Will explaining the reason why you have not included this particular person (or persons). You will not be around to explain why and a personal letter would help against any potential claim.

Warning about new housing estates, management charges and administration fees.

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Buying a property on a new estate? Be wary of the estate management charges and administration fees.

If you are considering purchasing a property on a newly built estate, you should carefully consider the estate management fees being charged by managing agents for maintaining communal facilities and areas on the estate as well as administration fees for providing information to buyer’s when you sell the property. This area of housing is currently unregulated and in many cases disproportionate or unreasonable fees are being charged to property owners.

More frequently, developments are being built where roads, footpaths and communal areas and facilities remain private. This arrangement is agreed between the developer and the local authority and, as all responsibility and costs for maintenance of these areas sit with the developer and not the local authority, this benefits the developer in obtaining the grant of planning permission for their developments. The developer employs a managing agent to carry out the repairs and maintenance to communal areas and facilities on the estate and the costs of this are recouped from all of the property owners.

Whilst the importance of the communal areas and facilities being maintained is acknowledged, the issue appears to be that property owners have little involvement in deciding which contractors undertake the work, the extent of the work undertaken or is required and that there is little incentive for the managing agents to keep the costs of the work to a minimum. Currently, property owners have little or no recourse if they are unhappy with the level of the estate management charge being demanded from them.

Similarly, when a property on an estate which has privately maintained areas is sold, typically the buyer’s solicitor will ask for information about the estate management charges, what areas or functions they cover and for any registration requirements of the managing agents for acknowledging the transfer of property ownership. More often than not, managing agents are charging excessively high administration fees for providing this, often, standard information. As the buyer’s solicitor needs to know this information, sellers are finding themselves feeling forced to pay it.

Below is a list of questions you may wish to ask when looking at properties on a newly built estate so that you can make a better informed decision whether you want to buy there:

  • What communal areas and facilities are on the estate and whether or not these are or will be adopted?
  • Whether a managing agent has been appointed or is intended to be appointed?
  • What will the managing agent be responsible for?
  • What are the likely costs for each property owner?
  • Is it anticipated these costs will rise significantly?
  • What costs do the managing agents charge for providing a ‘sales pack’ when a property on the estate is sold?

The Freehold Properties (Management Charges and Shared Facilities) Bill was proposed to introduce a cap on estate management fees and allow property owners the opportunity to self-manage communal areas as resident groups; however, the bill did not successfully pass through Parliament and so this issue remains unregulated.

What can a landlord do where a former tenant’s belongings are left at the premises?

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It is question that I am often asked and can cause landlords more difficulties and time having already, on some occasions, gone through the difficult procedure in getting a tenant to leave their premises in the first place.

Landlords are often faced with the issue of how to deal with belongings left behind by their former tenants at the end of their tenancies. The risk to the landlord of disposing of items of obvious rubbish may be small, especially where a tenant has vacated voluntarily at the end of the term or surrender their tenancy. There may, however, be a greater risk in either of the following situations:

  • Where larger or more valuable items are left behind.
  • Where the landlord has forfeited a lease or enforced a possession order.

A tenant is generally obliged to remove their goods from the premises at the end of the term. A lease or tenancy agreement will often expressly oblige the tenant to remove any goods at the end of the term. Some leases will also clarify what the landlord can do with any goods that may be left on the premises at the end of the term.

If goods are left on the premises once the lease has come to an end, however it ends, the items remain the former tenant’s property. The exception to this is where the former tenant has abandoned his/her belongings. In the absence of express terms in a lease, the landlord is left with the problem of deciding what to do with these.

If the tenant has moved out and abandoned the goods, the landlord will usually be free to deal with those goods as it sees fit. If the former tenant has not abandoned the goods, however, the retention and sale or disposal of the goods by the landlord may give the tenant grounds for bringing a claim against the landlord.

A useful tool for the landlord to use is to serve a notice under the Torts (Interference with Goods) Act 1977 (“TIGA”). This imposes an obligation to collect the goods on the owner by giving notice and gives the person in possession the right to sell the goods if they are not collected.

The content of a notice would include that the goods are ready to collect, address as to where the goods are held and what amount if any are due to the landlord for storing the goods. If the tenant fails to respond or refuses to collect the goods then the Landlord can give a further notice of their intention to sell the goods under section 12(3) of the TIGA 1977. This notice would set out similar details as the first notice and include the date on or after which the landlord intends to sell the goods.

With both notices the landlord must give a reasonable opportunity to collect the goods. What is reasonable will depend on the circumstances of each case.

For more information and advice on this and how this may affect you please contact Anton Bilinski who is able to guide you through this and act for you when a landlord or tenant dispute arises.

Anton Bilinski
Chartered Legal Executive
Litigation Department

Who To Appoint As Executors Under Your Will.

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When making a Will you should consider carefully the right Executor to appoint as the role of an Executor carries important legal duties and responsibilities.

It is an Executor’s duty to administer the estate in accordance with the terms of the Will and in accordance with the law. Executors are personally liable for their errors or omissions. It is therefore extremely important you appoint somebody that you trust to carry out this role efficiently and responsibly. You can appoint an individual such as your spouse/partner, a family member or even a close friend.

You may however not wish to put this responsibility on an individual. You are therefore able to appoint professional Executors such as solicitors.

Dealing with the death of a loved one is a difficult time at best. Unfortunately it can also release underlying tensions and resentments between friends and even family members. By appointing a professional Executor such as Adams Harrison this would minimise any disputes that can arise.

Sadly, some Wills are challenged, especially where one beneficiary benefits more than others. Allegations of undue influence or lack of capacity can arise in these cases. By appointing Adams Harrison as Executors, your estate has a professional on hand who can rebut such allegations and robustly defend your last wishes.

If you wish to discuss making a Will or you require any further advice on this, please contact our Wills, Estates and Trust Team.

Leanne Mayes   Legal Executive