Opinion

Challenges and opportunities ahead for the UK’s second city

“Fibre optic could be as important for the Midlands as HS2 and the region should have great appeal for global funds investing in energy and tech infrastructure.” - Adrian Bland

These were two themes that came out of the Urban Land Institute/PWC`s Emerging Trends in Real Estate Midlands 2021 recent event. The exciting announcement of plans for a Gigafactory at Coventry Airport came a few days later, to underline those views.

Digital connections though, go hand in hand with physical connectivity – especially rail, air and mass transit – and these continue to rank top of investors` lists when choosing which cities to back. That came over loud and clear in the report at the heart of the event. Good news then for the first region to benefit from HS2 and with significant mass transit expansion in the pipeline.

Adrian Bland, partner in our real estate team and chair of the Urban Land Institute (ULI) Midlands, shares his views on the future plans for Birmingham.

Themes and debates of the day

There is a lot of noise out there at the moment. The challenge is to distinguish between the noise and the signal. With that in mind, experts –and delegates at the event shared views and set debates rolling such as:

 

  • Boris`s “Build, Build, Build” vs a shrinking pool of contractors, skills/materials shortages and rising costs
  • Birmingham City Council`s imaginative new vision for central Birmingham vs the challenges of funding and implementation
  • Affordable housing plans launched by West Midlands Combined Authority and housebuilders allocating more land for affordable vs increased costs post-Grenfell and environmental requirements impacting on housing providers
  • The rise and rise of logistics vs the search for more advanced automation which will reduce the number of jobs in the sector
  • Investor requirements for covenant vs buildings becoming less a commodity, more part of a service offer with occupiers deciding on flexibility, facilities, systems and brand
  • Offices – large city centre spaces (reconfigured post-COVID) vs smaller floor space with suburban satellite offices, decline in demand vs more floor space per person.
Real Estate Prospects

The report ranks 31 major cities across Europe according to their real estate prospects. Berlin tops the league, closely followed by London, Paris and Frankfurt. In fact, there are four German cities in the top 10.

The near-1,000 key real estate decision-makers across Europe, who contribute to the report, have viewed major UK regional cities less favourably since the decision to leave the EU. Birmingham, Edinburgh and Manchester have all slipped from flying high to places outside the top 20. UK investor sentiment, those that are more familiar with the regional cities, is more positive though: ranking Birmingham 18 in Europe, up from 27 – despite Brexit and Coronavirus.

What this past year and the beginning of life outside the EU has shown us is that there is no shortage of challenges and opportunities for our regional cities, but as a commercial development specialist, having worked in the Birmingham and Midlands market for many years there is a perceived resilience and potential for Birmingham and the wider Midlands as a whole and I am excited to see its future.

Contact us

If you’d like advice or guidance contact Adrian Bland for support or another real estate team in your local office.

From inspirational SHMA Talks to informative webinars, we also have lots of educational and entertaining content for life and business. Visit SHMA® ON DEMAND.

Our free legal helpline offers bespoke guidance on a range of subjects, from employment and general business matters through to director’s responsibilities, insolvency, restructuring, funding and disputes. We also have a team of experts on hand for any queries on family and private matters too. Available from 10am-12pm Monday to Friday, call 0800 689 4064.

How can we help?

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Opinion

Legacy loop: autumn edition 2020

Recent case updates
Removal of executors - Liu v Matyas (2020) EWHC 2807 (Ch)

When disputes arise between trustees or executors and beneficiaries, any agreement between the parties can be difficult. Where matters have become contentious and allegations have been made, even where agreement to appoint someone new to step in and administer the estate, agreeing the replacement executor can be tricky. This was the case in the recently heard case of Liu v Matyas (2020) EWHC 2807 (Ch).

In this case, Mr Matyas and Mr Liu, as the deceased’s partner and brother, were named executors in the deceased’s will. The parties eventually agreed to stand down after a dispute had arisen and it was agreed that an independent professional executor should be appointed to administer the estate. Unfortunately, the parties had different opinions as to which independent professional executor was to be appointed. The parties simply could not reach an agreement on who should be appointed and the matter came before the Court.

Both parties submitted their reasons together with supporting evidence for their respective choice of professional executor to be appointed. There was little distinction between the proposed professional executors. Both proposed executors had a similar experience of acting as professional executors and knowledge of contentious matters (which was relevant given the history in the matter). The court also considered factors such as their availability to act, the continuing relationships between the parties and the wishes of the beneficiaries and found little to distinguish between the proposed executors.

However, due to a difference of £240 plus VAT between their hourly rates, and considering the value of the estate to be administered, it was considered that the solicitor based at a city firm with an hourly rate of £490 plus VAT was unjustified. The Court therefore considered that the alternatively proposed solicitor with an hourly rate of £250 plus VAT should be appointed.

This case reminds us that it is important to try to agree on matters out of court where possible, as this saves time and significant costs for all parties. In a situation where the identity of the replacement executor cannot be agreed, our tips for breaking a deadlock and avoiding further costs are as follows:

  1. Avoid proposing that a solicitor you are instructing is appointed as executor. Where tensions have arisen between parties, it is unlikely that the parties will agree to appoint someone who has acted for you previously. It is important that to avoid the dispute continuing, suggestions that are made give all parties the comfort of that person acting in a neutral and independent way going forward.
  2. Consider the size of the estate. Analysis of the value and complexity of the estate is key to establishing whether an independent professional executor should be appointed or whether a lay executor may be more suitable. It may be difficult to find a suitable lay person who is entirely independent and willing to be appointed, but if possible, this can save the estate a further layer of costs in respect of the administration itself. Equally, if a professional executor is to be appointed, do consider the costs they will charge for administering the estate in comparison to the size of the estate.

Seek legal advice early. If disputes have been ongoing between parties for some time, a solicitor can assist in negotiations between the parties and bring an end to the dispute sooner, avoiding proceedings going to court.

Delays in probate applications

There is currently a considerable backlog of probate grant applications that have been submitted but not yet issued.

In an open letter dated 11 November 2020 to charity organisations, HM Courts & Tribunals Service (HMCTS) sought to provide clarity to the charity sector on the issue. Currently, the number of applications awaiting issue stands at around 29,000, an increase of 5,000 than at the beginning of April 2020. Many of these applications have already been considered but have been stopped due to errors on the applications and/or missing documentation. According to HMCTS, completion of digital probate applications is currently taking anywhere from two to five weeks. HMCTS claim they have responded to the backlog by insisting that all probate applications made by solicitors are now made online and training additional staff to increase its capacity to process applications from December 2020 to March 2021. The position will be reviewed again by HMCTS at that stage and a further statement will be made before the end of the financial year.

Whilst the move to making online applications mandatory may speed up the process going forward, the current backlog in applications to be processed will inevitably have a knock on effect on the timeframe in which estates will be administered. However as reported by Legacy Foresight, whilst charities should be mindful of the current delays in grants being issued, the general outlook for charities to receive significant income from legacies this year remains positive.

What do you do when the named executor in a will cannot be located?

Sometimes locating the executor of a will can be difficult, particularly if the will was prepared many years before the person passes away.

When applying for a grant, you must be able to show that a reasonable search for the named executor has been carried out, this includes a thorough search of:

  • Companies House
  • Land Registry
  • Social media
  • word of mouth such as friends and family of the deceased
  • In online listings such as 192.com
  • Instructing a tracing agent

If the executor of the will cannot be found, and there is no replacement executor named in the Will, then the next step is to consult the Non-Contentious Probate Rules 1987 (NCPR) as to the available options.

In most cases, one or more of the residuary beneficiaries will be entitled to obtain a ‘Grant of Letters of Administration with Will Annexed’. This will provide the legal entitlement for the persons seeking to take over the role and actions of the previous executor.

If a residuary beneficiary is not prepared to take over the role of executing the will, Rule 20 of the NCPR provides a hierarchal list of people who are authorised to apply for such a grant.  Charities are able to apply if they are a residuary legatee named in the will.

Once it is decided who will apply for the grant, an application to the Probate Registry (or Court if contested) is required under section 116 Senior Court Act 1981. The Probate Registry and Court have wide discretion to ‘pass over’ an executor’s entitlement to take a grant and, in considering such applications, the focus will be on what is required for the proper and efficient administration of the estate. Both the wishes and best interests of the beneficiaries and the relationship between the parties will be taken into account. If it is considered that there are ‘special circumstances’ or it is ‘expedient or necessary’ to do so, the named executor’s entitlement will be passed over.

If perhaps, a grant was taken out some time ago and new estate assets have come to light but the executor cannot now be located, an application to the court to remove the executor can be made under section 50 of the Administration of Justice Act 1985 and replace them with one of the beneficiaries or someone independent. The application will need to be served on the executor if they can be located and this can be done by serving them at their last known address or by email (if permitted by the court). Evidence in support of the application will need to be filed with the application. The court may be prepared to deal with it on paper.

Contact us

Shakespeare Martineau has launched a free legal helpline offering bespoke guidance on a range of subjects from employment and general business matters, through to director’s responsibilities, insolvency, restructuring, funding and disputes. We also have a team of experts on hand for any queries on family and private matters too.

Available from 10am-12pm Monday to Friday, call 0800 689 4064.

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Opinion

Light at the end of the tunnel on possession claims

Light at the end of the tunnel on possession claims following the Government’s stay on possession proceedings and ban on evictions

23 August 2020 will see the end of the stay on possession proceedings and ban on evictions which were introduced as part of the Coronavirus Act 2020 legislation. However, it won’t be a case of back to business as usual as there are now additional steps landlords need to take in order to move their cases forward.

A new Practice Direction 55C, published on 21 July 2020, sets out how cases will work moving forward after 23 August. The new measures announced will stay in place until 28 March 2021. They could be extended further.

What is Practice Direction 55C?

Practice Direction 55C sets out how cases issued and stayed before 3 August 2020 will be affected and also deals with new claims brought after 23 August 2020.

For claims issued and stayed before 3 August 2020 a reactivation notice must be filed and served in order to get the claim listed or relisted for a hearing date or referred. Para 2.3 of the practice directions states that when filling a reactivation notice it must state the following;

  • the party filing and serving it wishes the case to be listed, relisted or referred; and
  • except in proceedings relating to an appeal, set out what knowledge that the party has to the effect of the Coronavirus pandemic on the defendant and their dependants.

If the landlord is seeking to reactivate a claim which relates to rent arrears, then the landlord must provide, with the reactivation notice, an updated rent account statement covering the past two years.

However, if a reactivation notice is not filled and served by 4:00pm on 29 January 2021 then the claim is automatically stayed.

If a claim was stayed and case management directions were made before 23 August 2020 and a party to the clam is filing and serving a reactivation notice, they must also in accordance to para 5.1 of the practice direction also file the serve the following information;

  • a copy of the last directions order together with new dates for compliance with directions;
  • a copy of the last directions order together with new dates for compliance with the directions taking account of the stay before 23 August 2020; and either
  • draft order setting out additional or alternative directions (including proposing a new hearing date) which are required; or a statement in writing that no new directions are required and that an existing hearing date can be met; and
  • a statement in writing whether the case is suitable for hearing by video or audio link.

If a party does not agree with the position on the directions then they must file and serve a notice in response within 14 days of the reactivation notice.

The above applies to cases which have been issued and stayed before 3 August 2020.

Cases which have been issued and stayed after 3 August and for any cases issued after 23 August 2020 there is no requirement to file and serve a reactivation notice. However, there is a requirement to serve a notice 14 days before the hearing date to demonstrate the following points;

  • the landlord has complied with the pre-action protocol and how they have done so; and
  • what knowledge the landlord has about the effect of the pandemic on the tenant and their dependants

There is also a further requirement that two copies of this notice must be taken to the hearing.

How will courts deal with the cases to be heard?

Prior to the introduction of the new practice directions any cases issued would need to be listed within eight weeks from the date of issue. Given the extensive backlog the courts will be facing following the stay on proceedings the eight week listing rule is suspended until 28 March 2021.

How will the new practice direction affect landlords?

In light of the new practice direction, there are some additional steps which landlords need to take in order to either, get a stayed case listed and heard and present information at a hearing. These steps will help you comply with the new procedures and avoid any further delays which may result in cases being adjourned when they are finally heard.

It is important to remember despite the stay being lifted, the three month notice period that must be given when serving a Notice Seeking Possession or a Section 21 notice is still very much in force until 30 September 2020. It is important to ensure any notices served are also served containing the correct prescribed information to ensure the notice is valid.

The pandemic has no doubt changed the way in which we are all working and even looking at exploring alternative action. These options may include applying for injunctions with or without notice, or even exploring working with other agencies who have the power to obtain closure orders or serve community protection warnings often leading to a community protection notice.

A copy full copy of Practice Direction 55C can be found here.

Contact us

For further information contact Habib Khan, Danielle Sodhi or Gary Ekpenyoung in our housing management team, who can guide, help support and you and your teams to deal with any housing management and litigation issues you face during these evolving times.

From inspirational SHMA Talks to informative webinars, we also have lots of educational and entertaining content for life and business. Visit SHMA® ON DEMAND.

Our free legal helpline offers bespoke guidance on a range of subjects, from employment and general business matters through to director’s responsibilities, insolvency, restructuring, funding and disputes. We also have a team of experts on hand for any queries on family and private matters too. Available from 10am-12pm Monday to Friday, call 0800 689 4064.

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Opinion

Test and Trace | Your questions answered

Test and Trace | Your questions answered

In excess of 30,000 close contacts of people who have tested positive for coronavirus were identified during the first week of the test and trace system in England, figures show.

And of those, 85% were contacted and asked to self-isolate for 14 days.

Introduced as part of a package of measures to ease lockdown restrictions anyone who develops symptoms must get tested and self isolate for seven days. If negative they can return to work, but if positive the test and trace team will be in touch to trace contacts.

Anyone deemed to be at risk of catching the virus will be instructed to self-isolate for 14 days but members of their family don't have to self-isolate unless someone in the house actually develops symptoms. A complex picture indeed!

There is a concern though from businesses that the new system is short in detail and could have massive implications on the workplace, but as we all have a part to play we take a look at some frequently asked questions.

As an employer, what do I need to do to adhere to the guidance?

It is vital that employers play their part by making the workplace as safe as possible, encouraging workers to heed any notifications to self-isolate, and support them when in isolation.

It’s helpful if you talk to your employees about their obligations under test and trace. A supporting policy could be very helpful, reminding employees of their obligations and detailing yours as an employer.

Be clear who is a “close contact” and where an employee reports in with symptoms, identify if there is anyone who falls into this category so appropriate steps can be implemented as necessary

Provide the employee with the name of an individual in the company who can provide the test and trace team with any information they need, or who the employee can turn to for support.

Remind employees to inform you immediately if their test result is positive, allowing the business to pre-empt contact from test and trace and subsequent notifications which will potentially be made to co-workers from test and trace.

If employees are asked to provide details of co-workers directly by test and trace, they should not share personal details, without speaking to their employer first. Employers still to have to remain GDPR compliance and ensure they look after sensitive data including contact details and the health and wellbeing status of their employees. General employment law also continues to apply in all circumstances.

It’s important too that employers update company privacy policies to incorporate this scenario.

What happens if an employee has broken the workspace social distancing regulations or health and safety rules when identifying contacts?

The test and trace system will only work effectively if everyone takes their responsibilities seriously and so any breach by a worker/employee should be handled with care. If employees are scared of any possible repercussions this may result in putting the workplace at risk and a possible Public Health England inspection.

What should I do if contacted by Public Health England (PHE)?

In some cases PHE might get in touch with you as an employer and ask for personal data to assist with an investigation – you can be compelled to give information, but should keep a clear record of what is divulged and ensure it does not give away more information than is necessary. Processing of that data will then also fall under PHE/NHS obligations (who already process significant amounts of health data).

There is some concern at the present time regarding the privacy practices of PHE/NHS (for example how long data is kept for – up to 20 years in some cases and the government’s alleged failure to carry out a data privacy impact assessment). Whatever the concern they do not affect the underlying employer obligations that already exist.

Who is required to self isolate?

We are all familiar with the workers/employees but this now includes anyone who has received a notification from the NHS’s test and trace service, which will include co-workers

  • A worker/employee who has coronavirus symptoms and is awaiting test results;
  • An employer or worker who has tested positive for coronavirus;
  • Where someone in their household has symptoms or has tested positive for coronavirus; or
  • Where they have been in close recent contact with someone who has tested positive and received a notification to self-isolate from NHS test and trace.

What is the criteria used for identifying additional people potentially infected (i.e. those who would have to self-isolate) if a member of staff tests positive?

Currently the criteria is anyone who has been in contact with the person who has tested positive at a distance of less than two metres for a period of 15 minutes or more. It is understood that this means 15 minutes in one spell rather than a cumulative 15 minutes.

The current guidance does not appear to make an allowance for additional measures an employer has implemented, such as Perspex screens or employees wearing elements of PPE. This has only been recognised by the government in a health and care setting as making a contribution.

When do co-workers potentially need to isolate?

An employee who is starting to develop symptoms may ask their employers to notify co-workers for them, but they are not obliged to. Until an employee receives a positive test, contacts do not need to self isolate, but this picture will change once the results are known and they are potentially contacted by test and trace.

What should an employer do if staff and co-workers become affected?

Employers must play their part in supporting employees in not coming into the workplace for the appropriate self-isolation period, ensuring that they either work from home or take annual leave, or do not work and are paid statutory sick pay (SSP). Working from home where possible should continue to be the preferred option for all employers and employees.

Contact us

If you have any queries on the furlough leave scheme, or need any guidance or support, speak to a member of your local employment team.

As the furlough scheme starts to gradually wind down, and the restrictions around social distancing continue, you’ll also need to consider what adjustments need to be made before bringing your employees back into the workplace. Our guide to recovery and resilience addresses those key people-related questions, challenges and opportunities.

From inspirational SHMA Talks to informative webinars, we also have lots of educational and entertaining content for life and business. Visit SHMA® ON DEMAND.

Our free legal helpline offers bespoke guidance on a range of subjects, from employment and general business matters through to director’s responsibilities, insolvency, restructuring, funding and disputes. We also have a team of experts on hand for any queries on family and private matters too. Available from 10am-12pm Monday to Friday, call 0800 689 4064.

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Opinion

Subject access requests: 2020’s summer trend?

Subject access requests: 2020’s summer trend?

Awarding students calculated grades in GCSEs, AS and A levels this summer may have been the simplest option, but Ofqual’s decision does create the potential for an influx of complaints regarding bias.

As such, schools need to be aware of how to deal with these fairly and effectively.

How will GCSEs, AS and A levels be awarded without exams?

COVID-19 has put the education sector in a position it’s never been in before. The exceptional circumstances caused by the cancellation of examinations led to a thorough consultation by Ofqual to assess how best to award grades to the students of 2020. Calculated grades were judged to be the fairest solution, ensuring students still have the chance to move onto higher education or employment.

Ofqual’s guidance states that schools should make an “objective judgement” based on “different sources of evidence and data”, such as:

  • homework;
  • mock exams; and
  • non-exam assessments.

The aim is to award each student with the grade they “would most likely have received". However, although as fair as possible, the process is partly subjective meaning there is a risk of bias or discrimination.

What if there is a disagreement over a grade?

Individual pupils will be unable to challenge their teacher-assessed grades, as an appeal would have to be undertaken by “someone better placed than the student’s teachers to judge their likely grade if exams had taken place”. However, if it is believed that the wrong grade has been awarded due to bias or discrimination, then a complaint can be made.

Subject access requests can also be submitted under data protection legislation to see what information relating to the student was shared to determine the resulting grade. Read more about data protection and subject access requests.

What is a subject access request?

Simply, a subject access request is a written request made by or on behalf of an individual for a copy of their personal data which is held by “a data controller” (i.e. an organisation, such a s a school or person who processes a person’s data for their own purposes).  The right of access is conferred by the General Data Protection Regulation Article 15.

After receiving a request, schools have one month to disclose the requested personal data, unless the request is complex and in those circumstances, the time limit can be extended by a further two months. A different time limit applies to examination marks.  If the request is made before the examination results are released, the time limit for disclosure is the earlier of five months from the date of the request or 40 days from the date the results are released.

GCSE, AS and A level students will usually be regarded as having the capacity to consent to the uses of their personal data, so it is essential that schools gain consent from the student before sharing any personal data with their parents.

How should schools handle any complaints over calculated grades?

Once results are released in summer, it’s likely that schools will see many more complaints and subject access requests than usual, particularly for any personal data in recorded deliberations concerning a student’s performance. Therefore, it is important to document the decision-making process, including any discussions held and how Ofqual’s guidance has been followed. This will help to avoid allegations of unconscious bias, highlighting that grades were based on academic facts alone.

Before the summer results are announced, schools should ensure they understand the regulator's guidelines and seek expert advice where needed, allowing them to make objective judgements and handle any disputes effectively.

Contact us

If you would like further information or advice in relational to handling subject access requests, or how best to deal with student complaints, then speak to Esther Maxwell or Geraldine Swanton in our specialist education team.

From inspirational SHMA Talks to informative webinars, we also have lots of educational and entertaining content for life and business. Visit SHMA® ON DEMAND.

Our free legal helpline offers bespoke guidance on a range of subjects, from employment and general business matters through to director’s responsibilities, insolvency, restructuring, funding and disputes. We also have a team of experts on hand for any queries on family and private matters too. Available from 10am-12pm Monday to Friday, call 0800 689 4064.

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Opinion

What does the Summer Statement mean for Birmingham?

What does the Summer Statement mean for Birmingham?

The variety of measures that were announced during the Chancellor’s recent Summer Statement showed the government’s dedication to getting UK businesses back on track.

However, although undoubtedly positive, is it enough? And what do they mean for Birmingham and the West Midlands?

We look beyond the headlines:

Maintaining employment

The £1,000 Job Retention Bonus means that for every employee brought back after the furlough scheme ends, businesses will receive £1,000. Read our comprehensive Q&A guide on the furlough scheme.

This announcement was welcome news to companies concerned about bringing staff back after furlough, but it certainly isn’t a fix-all solution.

Currently, the West Midlands has one of the highest employment rates in the UK at 75.5 percent. The region is also a major cog in the Midlands Engine, with the West Midlands being home to much of the UK’s manufacturing, capacity.

Many of these businesses will have been hit hard by the pandemic, turning to the furlough scheme to survive. However, once the scheme ends, will £1,000 per employee be enough to recover the Midlands workforce?

For long-term stability, Birmingham needs to look to increasing levels of foreign direct investment (FDI). Nationally, the city ranks third in terms of its attractiveness for FDI, but there is certainly room to improve. As digital technology is a main driver for FDI, this is where the West Midlands needs to focus, alongside continuing to drive innovation in the automotive, manufacturing and education sectors.

Job losses will likely be unavoidable, even with increased funding for apprenticeships and the £2bn ‘Kickstart Scheme’, so significant investment in new employment opportunities is vital.

Getting the housing market moving

In order to get people buying and selling houses once more, the Chancellor has raised the Stamp Duty threshold to £500,000 until 31 March 2021. As Birmingham continues to grow in popularity as a place to both live and work, this relief should help the housing market to bounce back quickly in the West Midlands. This will also benefit those that rely on a housing market such as house builders and furnishing businesses.

The Prime Minister’s ‘New Deal’ will also boost housing numbers in the region, with £84m of funding set aside for the West Midlands Combined Authority to build housing schemes on former industrial brownfield sites.

Laying down infrastructure

One detail missing from the Chancellor’s Summer Statement was that of major capital projects. From HS2 and Curzon Street to the 2022 Commonwealth Games, Birmingham and its surrounding areas are the sites of some of the UK’s biggest infrastructure projects, which support both the local economy and employment.

The £66m allocated by the government to assist with the start of numerous infrastructure schemes, will also go some way to aiding the region’s recovery. However, while this financial commitment is positive, £66m is not nearly enough to support the major projects required by the Region into the future.

At a glance, the Chancellor has given the UK some of the support it needs to get back to business, but these measures alone won’t be able to save every job. However, the West Midlands is a region full of potential, and COVID-19 hasn’t changed that. By pulling together and using the enterprising spirit the region is so well known for, we’re sure to come back stronger than ever.

Contact us

If you would like support with any of the measures announced during the Summer Statement, or have any other queries or concerns about your business, then our free legal helpline offers bespoke guidance on a range of subjects, from employment and general business matters through to director’s responsibilities, insolvency, restructuring, funding and disputes. We also have a team of experts on hand for any queries on family and private matters too. Available from 10am-12pm Monday to Friday, call 0800 689 4064.

We have launched our guide to recovery and resilience, helping to support businesses and individuals unlock their potential, navigate their way out of lockdown and make way for a brighter future. Further advice in relation to COVID-19 can be found on our dedicated coronavirus resource hub.

From inspirational SHMA Talks to informative webinars, we also have lots of educational and entertaining content for life and business. Visit SHMA® ON DEMAND.

SHMA® ON DEMAND

Listen to our SHMA® ON DEMAND content covering a broad range of topics to help support you and your business.

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Opinion

Hospitality and leisure: Top three tips for businesses to prepare for a staycation

Hospitality and leisure: Top three tips for businesses to prepare for a staycation

Thanks to COVID-19, 2020 is looking to be the year of the ‘staycation’ for many British holidaymakers.

Although not necessarily good news for our tans, it is positive for the UK hospitality and leisure sector. However, in order to capitalise on this demand, companies should ensure they are prepared. Numerous operational changes will potentially need to be made, from restructuring to supplier and contract negotiations.

So, how can businesses take advantage of this rise in footfall? Here we outline three things businesses should do to prepare for a staycation.

1. Talk to your landlord

Rental costs are a large part of a company’s outgoings, especially in the hospitality and leisure sector. In order to survive COVID-19, landlords and tenants need to communicate better than ever, adapting the way they operate.

Where lockdown has slowed cashflow, business owners should start negotiations with their landlord to try and agree a rent reduction, rent holiday, or a more manageable payment plan. Providing evidence of the financial impacts is vital, and should help to strengthen the business owner’s position, but ultimately the final decision is down to the landlord.

It may also be worth discussing turnover rent agreements with landlords. This enables both parties to share in the good times and the bad. By splitting the payment into a fixed term base rent and a turnover element, companies can pay what they can afford at that time and landlords can benefit when things are going well.

Without these cash saving rental solutions, some businesses may not be able to stay open long enough to benefit from the oncoming wave of ‘staycationers’.

2. Get creative

Social distancing is one of the most challenging restrictions for the hospitality sector to cope with. Although most venues are now trading at 70 percent capacity, it’s still hard to see how lost profits will be recovered.

However, it is not impossible to increase these margins, as long as hoteliers and restauranteurs aren’t afraid to get creative. Rearranging layouts, utilising outdoor space and adapting opening hours to make the most of the Government’s VAT reduction and the ‘Eat Out To Help Out’ scheme are all potentially useful options.

3. Use support

On 26 June, the Corporate Insolvency and Governance Act 2020 came into force, including measures such as a 20 business-day moratorium - allowing businesses to temporarily suspend the repayment of debts. This is the biggest reform of the UK’s restructuring and insolvency framework in over 15 years.

Giving hospitality companies chance to restructure or seek new investment without fearing the action of creditors, the Act could be a much-needed lifeline. However, business owners must assess which of the proposed support mechanisms will work best for them, and gain professional advice where needed.

We’re here to help

There is a light at the end of the tunnel for the hospitality and leisure sector, and ‘staycations’ are part of it. By being proactive and taking advantage of the commercial opportunities available, businesses can considerably improve their chances of survival, helping the industry to come back stronger than ever.

Contact us

If you’d like guidance or support on turning the fortune of your business around and making the most of the commercial opportunities available, speak to Gareth Hegarty, or another member of our corporate restructuring and insolvency team.

We have launched our guide to recovery and resilience, helping to support businesses and individuals unlock their potential, navigate their way out of lockdown and make way for a brighter future. Further advice in relation to COVID-19 can be found on our dedicated coronavirus resource hub.

From inspirational SHMA Talks to informative webinars, we also have lots of educational and entertaining content for life and business. Visit SHMA® ON DEMAND.

Our free legal helpline offers bespoke guidance on a range of subjects, from employment and general business matters through to director’s responsibilities, insolvency, restructuring, funding and disputes. We also have a team of experts on hand for any queries on family and private matters too. Available from 10am-12pm Monday to Friday, call 0800 689 4064.

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Opinion

Guilt by Association: the Birmingham Games 2022 Association Right

Guilt by Association: the Birmingham Games 2022 Association Right

The Birmingham Commonwealth Games Act 2020 received Royal Assent on 25 June, signalling that although the Games are still two years away, things are starting to happen.

What is the Birmingham Commonwealth Games Act?

The Act lays the legal groundwork for the creation of a Games “association right” with effect from 25 August 2020, protecting the Games Organising Committee and official sponsors against unauthorised merchandising and advertising and so-called ambush marketing: the practice by wily marketing agencies and businesses of finding a way to associate themselves with a high profile event, and gain valuable marketing exposure, without paying for the privilege.

Memorable examples of ambush marketing include the branded orange clothing Bavaria Breweries issued to Dutch football supporters at the FIFA World Cup in South Africa to the dismay of the official beer sponsor Anheuser Busch; or Paddy Power promoting itself prior to the London Olympics as the official sponsor of “the largest athletics event in London this year” (an egg and spoon race in the French village of London, in Burgundy).

Rights of Association Guidelines

As the Act requires it to do, the Games Organising Committee has recently published Guidance designed to help businesses understand what "unauthorised association" means and where the line is drawn, and spelling out the consequences of getting it wrong. The guidance specifies examples of words which, when used in conjunction with each other or with a reference to a sport or sporting event, might be subject to enforcement action unless authorisation is obtained. The words include obvious candidates such as “Birmingham”, “2022”, “XXII” and “Commonwealth Games”, along with the less obvious “gold”, “silver”, “bronze”, “supplier”, “partner” and “medal”, among others.

The guidance includes a number of practical examples of what is and isn't likely to be allowed. For example, a marketing campaign by a tanning lotion brand which states "Go Bronze This Summer" is likely to be acceptable, whereas “Go Bronze in Brum” would probably not be. A café offering a “Birmingham 2022 Burger” would be in trouble, whereas advertising that it is “within easy walking distance of Alexander Stadium” would be acceptable.

The guidance states that the unauthorised association prohibition will be “enforced reasonably with a view to being positive, to enhance the operation and delivery of the Games in Birmingham in 2022, and not to overly restrict the operation of legitimate local and/or national businesses in the area". Based on our experience of similar provisions introduced for other previous Games, businesses should nevertheless be warned that the Organising Committee is likely actively to enforce this right in order to comply with its legal obligations to its official sponsors and the Commonwealth Games Federation.

Keeping within the law

Businesses should keep these wide ranging laws in mind when devising innovative marketing campaigns which may create an association with the Games, intended or not. The Organising Committee has also registered a number of trade marks relating to the Games, and owns copyright in logos and similar materials.  Care needs to be taken also to ensure these intellectual property rights are not infringed either, as they continue to apply alongside the Games-specific right of association.

For further information on the Association Right and how you can ensure your marketing activity stays on the right side of the line, we can draw on our experience of advising clients on the similar right for the London Olympics 2012.

Contact us
For further information please contact Kim Walker or another member of the intellectual property team.

From inspirational SHMA Talks to informative webinars, we also have lots of educational and entertaining content for life and business. Visit SHMA® ON DEMAND.

Our free legal helpline offers bespoke guidance on a range of subjects, from employment and general business matters through to director’s responsibilities, insolvency, restructuring, funding and disputes. We also have a team of experts on hand for any queries on family and private matters too. Available from 10am-12pm Monday to Friday, call 0800 689 4064.

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Opinion

New planning law | Redundant commercial buildings can be repurposed into new homes without planning permission

New planning law | Redundant commercial buildings can be repurposed into new homes without planning permission

Build, build, build” was the phrase used by Boris Johnson last month as reforms were promised to get the nation building more “fantastic new homes on brownfield sites’”.

However, before you can ‘build, build, build’, you need to get planning permission - and that is still too often a hurdle which prevents the delivery of much needed new homes.

What are the proposed changes to planning laws?

Councils have often rolled out planning policies protecting ‘employment land’ from housing, even when it is no longer commercially viable.  They’ve also often sought to apply the same burdensome Section 106 obligations and standards to sites where viability is marginal.

However, such restrictions are to be swept away as the Government are stepping in with the promise of allowing the demolition and rebuilding of vacant and redundant commercial buildings for new homes without requiring planning permission.

Well, almost…. There is still a ‘prior approval process’ to be obtained from the Councils.  Issues such as design, noise, traffic, parking, and amenity will therefore still need to be addressed as the Government wish to achieve quality and avoid the criticisms of its approach to allowing conversions of commercial buildings under this approach.

But critically, buildings must have been "entirely vacant for at least six months prior to the date of the application for prior approval", and built before 1 January 1990.  In addition, the new building cannot be larger than the footprint of the existing building and cannot exceed a maximum footprint of 1,000 square metres.

That clearly reduces the effectiveness of this option for some sites, however it may still provide a useful ‘fall-back’ argument with the Council and could enable a phased approach to site redevelopment.

Contact us
For advice and support on how you can use this new measure to your advantage, or any other planning query, contact Gary Stephens in our planning consultancy team Marrons Planning.

From inspirational SHMA Talks to informative webinars, we also have lots of educational and entertaining content for life and business. Visit SHMA® ON DEMAND.

Our free legal helpline offers bespoke guidance on a range of subjects, from employment and general business matters through to director’s responsibilities, insolvency, restructuring, funding and disputes. We also have a team of experts on hand for any queries on family and private matters too. Available from 10am-12pm Monday to Friday, call 0800 689 4064.

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Opinion

Could outsourcing be the answer to saving you time and money?

Could outsourcing be the answer to saving you time and money?

Outsourcing became an important part of business economics throughout the 1990s and it is now an established model saving many businesses considerable time and money.

The emergence of COVID-19 in March 2020 has cost many businesses dear with customers disappearing overnight, staff being furloughed and cash flow squeezed.  With the economy now starting to reopen, businesses are rapidly learning how to adapt in ways they may have never considered before or needed to before.

The package of measures introduced by the government and the Coronavirus Act which came into force in March 2020 has meant that public companies throughout the UK are having to do business very differently which has led to an increased workload and a whole new set of governance and reporting regulations to learn and duties to discharge.  With many businesses still operating with a reduced headcount, with employees working from home, and directors now having more responsibilities than ever before to ensure their businesses are COVID safe, now could be the time to consider outsourcing.

Why do companies outsource?

There are many reasons why a business may choose to outsource certain business functions and COVID-19 has only increased these. Common reasons include:

• Focus on core tasks
• Reducing and controlling operating costs
• Promote growth
• Maintain operational control
• Offer staffing flexibility – especially relevant
• Provide continuity and risk management
• Gaining access to superior services
• Freeing internal resources for other purposes

What business processes can be outsourced?

Common businesses practices which are outsourced include payroll, IT, content marketing and with the new legislation introduced as a result of the Coronavirus Act, company secretarial services. Within many quoted companies in-house company secretarial duties are carried out, in some cases, by one of the existing members of the finance team. This could seem like a cost-effective move, but it has become increasingly apparent that the provision of company secretarial services, especially given the introduction of new rules is highly time consuming and that there is more value for the in-house team member to focus on their primary role within the business.

This rise in the use of providers of company secretarial services can improve control and efficiency as they focus only on providing governance services to a Company. In addition, an outsourced service providing access to a team of professional company secretaries generates significant cost savings when benchmarked against recruiting and maintaining an in-house company secretarial function. Feedback from the market also reveals that outsourcing this function provides further support when required, from corporate governance to legal guidance, thereby increasing service value thanks to the accessibility of professional advisors.

As a result companies are increasingly looking to outsource their company secretarial function by utilising services on an ongoing basis, during routine business, restructuring or peak times in the corporate calendar.

Contact us
For further information please contact Ben Harber or another member of the company secretarial.

We have launched our guide to recovery and resilience, helping to support businesses and individuals unlock their potential, navigate their way out of lockdown and make way for a brighter future. Further advice in relation to COVID-19 can be found on our dedicated coronavirus resource hub.

From inspirational SHMA Talks to informative webinars, we also have lots of educational and entertaining content for life and business. Visit SHMA® ON DEMAND.

Our free legal helpline offers bespoke guidance on a range of subjects, from employment and general business matters through to director’s responsibilities, insolvency, restructuring, funding and disputes. We also have a team of experts on hand for any queries on family and private matters too. Available from 10am-12pm Monday to Friday, call 0800 689 4064.

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Michael Hibbs, Partner | Danielle Humphries, Solicitor
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In this webinar, Mike Hibbs – Partner and Robin Gronbech - Solicitor in our […]

Our thoughts

All the latest views and insights on current topics.

Long COVID and disability discrimination

4 Jul

Corporate & Commercial

Long COVID and disability discrimination

The employment tribunal has determined that an employee was disabled for the purposes of […]

Read article Right Arrow

Six things for Indian businesses to consider before expanding to the UK

4 Jul

Corporate & Commercial

Six things for Indian businesses to consider before expanding to the UK

According to the UK’s Department for International Trade the proposed trade arrangement between India […]

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Employment Contracts Vs Consultancy Agreements

27 Jun

Employment Contracts

Employment Contracts Vs Consultancy Agreements

Read article Right Arrow

Shakespeare Martineau appoints expert director to company secretary team

20 Jun

Corporate & Commercial

Shakespeare Martineau appoints expert director to company secretary team

Read article Right Arrow

Spring 2022 Consumer Finance Update

17 Jun

For the individual

Spring 2022 Consumer Finance Update

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Helping employees keep their cool in a heatwave

17 Jun

Employment

Helping employees keep their cool in a heatwave

Read article Right Arrow

We win top intellectual property award

16 Jun

Firm News

We win top intellectual property award

Read article Right Arrow

How can we help?

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Opinion

Returning to the workplace | Working safely during COVID-19

Returning to the workplace | Working safely during COVID-19

The prime minister announced that employers can start to bring their employees back to the workplace from 1 August 2020, providing that it is safe to do so.

The pressure is therefore on for businesses to comply with the government’s safe working guidelines and ensure that social distancing and hygiene precautions are fully implemented in places of work.

Many businesses are struggling with where to start and how to implement the changes in order to adapt to this new abnormal.

Here we highlight six measures to make the workplace as safe as possible and the changes employers will need to make.

1. Carry out a risk assessment

As part of the risk assessment, you must:

  • Identify any work activity or situations which might cause transmission of the virus;
  • think about who could be at risk;
  • decide how likely it is that someone could be exposed; and
  • act to remove the activity or situation, or if this isn’t possible, control the risk.

It is important to consult and involve people in the steps you are taking to manage the risk of coronavirus in your workplace.

Our guide to recovery and resilience highlights practical suggestions to consider to ensure you’re compliant with health and safety regulations.

2. Social distancing

Where possible people should be kept two metres apart. If this is not feasible, keeping workers one metre apart with risk mitigation is acceptable. Things that can be done to aid this process are:

  • Use floor tape or paint to mark work areas.
  • Provide signage to remind people to keep a two metre distance.
  • Use screens to create a physical barrier between people.
  • Have people working side-by-side rather than face-to-face.
  • Limit movement of people in high-traffic areas like corridors, turnstiles and walkways.
  • Allow only essential trips within buildings and between sites.

Hot-desking should also be avoided and you may also need to adjust working times for those using public transport to avoid peak periods.

Remote working should be encouraged to reduce face-to-face contact - read our guide on the practical considerations for employees when employees work from home.

3. Protect vulnerable workers

The Public Health England guidance states that some groups of people may be at more risk of being infected and/or have an adverse outcome if infected. Therefore ensure controls such social distancing, good hygiene and cleaning, ventilation, and supervision are applied stringently and communicate regularly with any vulnerable workers to ensure that they feel protected.

Some pregnant workers will be at greater risk of severe illness from coronavirus. They may have received a shielding letter from the NHS advising them to stay at home where possible and that they are not expected to be in the workplace. Employers will need to take this into account in their risk assessment[15]. If you cannot put the necessary control measures in place, such as adjustments to the job or working from home, you should suspend the pregnant worker on paid leave. This is in line with health and safety regulations.

4. Hygiene

Steps need to be taken to ensure that additional hygiene practices become commonplace in the office. Hand sanitising units and antibacterial wipe dispensers are essential in combatting the spread of infection. Organisations will need to ensure that there are handwashing facilities with running water, soap and paper towels. Use signs and posters to help your workers to practice good handwashing technique.

Make sure that surfaces remain clean, this may mean increasing the level and frequency of cleaning, as well as cleaning surfaces that you may not ordinarily clean.

5. Clean equipment frequently

Set clear guidance for the use and cleaning of toilets, showers and changing facilities to make sure they are kept clean and social distancing is achieved as much as possible, and clean work areas and equipment between uses. Frequently clean and disinfect objects and surfaces that are touched regularly. If equipment such as tools or vehicles are shared, then clean them after each use.

6. Communal areas

Review the communal areas used in your business such as canteens and think about physically moving tables and chairs so they are two metres apart. It might also be a good idea to stagger break times so that people are not using break rooms, canteens, rest areas or changing facilities at the same time and can, therefore, more easily maintain social distancing.

Where this is not possible, create additional space for people to take their breaks in and use outside areas for breaks if the locations are suitable and it is safe to do so.

Prepare for the future

It is important that employers take these necessary steps now, with a view that they will need to be implemented for the indefinite future.

Investing in these preparations properly will not only protect employees, but will also minimise the risk of financial impact from absence or closure. By taking the correct measures to keep staff safe and business functioning, future impacts of an extended pandemic or new waves of infection will be minimised.

Contact us

As the furlough scheme starts to gradually wind down, and the restrictions around social distancing continue, you’ll need to consider what adjustments need to be made before bringing your employees back into the workplace.

In addition to the health and safety measures, you’ll also need to consider updating or implementing policies and procedures, such as one for remote working - our guide to recovery and resilience addresses those key people-related questions, challenges and opportunities.

If you need advice or guidance on how to prepare for the safe return of your employees to the workplace, contact a member of your local employment team.

From inspirational SHMA Talks to informative webinars, we also have lots of educational and entertaining content for life and business. Visit SHMA® ON DEMAND.

SHMA® ON DEMAND

Listen to our SHMA® ON DEMAND content covering a broad range of topics to help support you and your business.

Agriculture: diversifying or leasing your land to create habitat banks

6 Jul

Peter Snodgrass, Partner & Head of Agriculture
Agriculture: diversifying or leasing your land to create habitat banks

We know that biodiversity net gains provide a significant opportunity for landowners to diversify […]

Teachers’ Pension Scheme – strategic issues independent schools need to think about

20 Jul

Esther Maxwell, Legal Director | Emma Glazzard, Solicitor
Teachers’ Pension Scheme – strategic issues independent schools need to think about

Webinar Teachers’ Pension Scheme – strategic issues independent schools need to think about In […]

Misconduct outside the workplace and business disrepute

8 Sep

Michael Hibbs, Partner | Danielle Humphries, Solicitor
Misconduct outside the workplace and business disrepute

In this webinar, Mike Hibbs – Partner and Robin Gronbech - Solicitor in our […]

Our thoughts

All the latest views and insights on current topics.

Long COVID and disability discrimination

4 Jul

Corporate & Commercial

Long COVID and disability discrimination

The employment tribunal has determined that an employee was disabled for the purposes of […]

Read article Right Arrow

Six things for Indian businesses to consider before expanding to the UK

4 Jul

Corporate & Commercial

Six things for Indian businesses to consider before expanding to the UK

According to the UK’s Department for International Trade the proposed trade arrangement between India […]

Read article Right Arrow

Employment Contracts Vs Consultancy Agreements

27 Jun

Employment Contracts

Employment Contracts Vs Consultancy Agreements

Read article Right Arrow

Shakespeare Martineau appoints expert director to company secretary team

20 Jun

Corporate & Commercial

Shakespeare Martineau appoints expert director to company secretary team

Read article Right Arrow

Spring 2022 Consumer Finance Update

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For the individual

Spring 2022 Consumer Finance Update

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Employment

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We win top intellectual property award

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Firm News

We win top intellectual property award

Read article Right Arrow

How can we help?

Our expert lawyers are ready to help you with a wide range of legal services, use the search below or call us on: 0330 024 0333

Opinion

Ethnicity pay gap reporting

Ethnicity pay gap reporting

No one could have escaped news of the shocking incident of the death of George Floyd at the hands of the police in America. This, along with the Black Lives Matter movement, has further highlighted inequalities that BAME individuals suffer in today’s society.

The spotlight has also turned to the workplace and has refreshed calls for mandatory ethnicity pay gap reporting.

Back in January 2019, the government closed a consultation on mandatory pay gap reporting; it has yet to publish its conclusions.

However, in the meantime, a parliamentary petition was launched after Baroness McGregor–Smith, a government advisor, emphasised the importance of mandatory ethnicity pay gap reporting. The petition, with over 100,000 signatories, called on the government to introduce mandatory ethnicity pay gap reporting in order to highlight instances of inequality within workplaces, meaning that they can be dealt with.

Commission on Race and Ethnic Disparities

The government response to the petition has been to set up a new cross-government Commission on Race and Ethnic Disparities, which will examine continuing race and ethnic inequalities in Britain and ways government can address those and improve lives. It goes on to state that further information will be published in due course.

Gender pay gap reporting

Business owners and HR teams will no doubt be aware of gender pay gap reporting for employers with over 250 employees. How has this worked in the context of equal pay? Well, it has brought gender issues to the forefront and has made companies consider, analyse and explain their gender pay gaps. It may not have solved the gender pay gap issue, but it has forced employers with over 250 employees to look at their gender pay gap, explain it and some have no doubt taken steps to rectify it.

Diversity and inclusion in the workplace

Organisations such as the Business in the Community have created a Race at Work Charter and encourage voluntary ethnicity pay gap reporting as well as setting out best practice for businesses interested in increasing their diversity. To date, around 282 companies have signed the Race at Work Charter.

Fundamentally, however, businesses have many conflicting priorities and this may not be at the top of their agenda. Accordingly, there is some attraction to implementing mandatory ethnicity pay gap reporting, in the hope that it will change the narrative and improve diversity in the workplace.

One of the issues highlighted in respect of ethnicity pay gap reporting is how to ensure that the reporting is meaningful and reliable and also to protect employee anonymity and avoid undue burdens on business. There are still many questions to be answered in relation to how ethnicity pay gap reporting would work in practice, and the government has said that it has consulting with businesses to work this out. What this will look like in practice remains to be seen but, as Baroness Ruby McGregor-Smith has highlighted, we have to start somewhere. After all, at the end of the day, diversity is good for business. We therefore watch with interest to see what steps the government takes next.

Read more about regulatory compliance in your workplace.

Contact us

If you have any queries around compliance or would like some guidance and support on implementing best practices, contact a member of your local employment team.

As the furlough scheme starts to gradually wind down, and the restrictions around social distancing continue, you’ll need to consider what adjustments need to be made before bringing your employees back into the workplace. Our guide to recovery and resilience addresses those key people-related questions, challenges and opportunities.

From inspirational SHMA Talks to informative webinars, we also have lots of educational and entertaining content for life and business. Visit SHMA® ON DEMAND.

SHMA® ON DEMAND

Listen to our SHMA® ON DEMAND content covering a broad range of topics to help support you and your business.

Agriculture: diversifying or leasing your land to create habitat banks

6 Jul

Peter Snodgrass, Partner & Head of Agriculture
Agriculture: diversifying or leasing your land to create habitat banks

We know that biodiversity net gains provide a significant opportunity for landowners to diversify […]

Teachers’ Pension Scheme – strategic issues independent schools need to think about

20 Jul

Esther Maxwell, Legal Director | Emma Glazzard, Solicitor
Teachers’ Pension Scheme – strategic issues independent schools need to think about

Webinar Teachers’ Pension Scheme – strategic issues independent schools need to think about In […]

Misconduct outside the workplace and business disrepute

8 Sep

Michael Hibbs, Partner | Danielle Humphries, Solicitor
Misconduct outside the workplace and business disrepute

In this webinar, Mike Hibbs – Partner and Robin Gronbech - Solicitor in our […]

Our thoughts

All the latest views and insights on current topics.

Long COVID and disability discrimination

4 Jul

Corporate & Commercial

Long COVID and disability discrimination

The employment tribunal has determined that an employee was disabled for the purposes of […]

Read article Right Arrow

Six things for Indian businesses to consider before expanding to the UK

4 Jul

Corporate & Commercial

Six things for Indian businesses to consider before expanding to the UK

According to the UK’s Department for International Trade the proposed trade arrangement between India […]

Read article Right Arrow

Employment Contracts Vs Consultancy Agreements

27 Jun

Employment Contracts

Employment Contracts Vs Consultancy Agreements

Read article Right Arrow

Shakespeare Martineau appoints expert director to company secretary team

20 Jun

Corporate & Commercial

Shakespeare Martineau appoints expert director to company secretary team

Read article Right Arrow

Spring 2022 Consumer Finance Update

17 Jun

For the individual

Spring 2022 Consumer Finance Update

Read article Right Arrow

Helping employees keep their cool in a heatwave

17 Jun

Employment

Helping employees keep their cool in a heatwave

Read article Right Arrow

We win top intellectual property award

16 Jun

Firm News

We win top intellectual property award

Read article Right Arrow

How can we help?

Our expert lawyers are ready to help you with a wide range of legal services, use the search below or call us on: 0330 024 0333

Guides & Advice

£50m social housing retrofit programme: An addition needed for the long term

£50m social housing retrofit programme: An addition needed for the long term

During the Chancellor’s summer statement on Wednesday 8 July, plans were announced for a £50m fund for social housing retrofit programme. This comes as part of a wider £3bn fund for green jobs, aiming to kickstart the economy’s road to recovery.

The plan 

Heat pumps, insulation and double glazing will be used to improve the energy efficiency of the UK’s social housing offering, potentially reducing people’s annual energy bills by around £200. 

Undeniably, this all sounds very positive, but is it that straightforward? 

The logistics and engaging with supply chains 

The £50m fund for social housing retrofits certainly provides food for thought for registered providers, however, the announcement could throw up numerous logistical difficulties. Many contracting partners will undoubtedly be keen to be involved in these projects given the current economic climate and registered providers should use this opportunity to reflect on how they engage with their supply chains. 

How will tenants benefit? 

Ensuring value for money is essential, but tenants themselves mustn’t be forgotten either. Registered providers should be looking for construction partners who are willing to enter into collaborative contracts with transparent working agreements, which put tenant engagement and satisfaction at the centre of the retrofit process. 

If you’re a construction partner, read more about our team of specialist construction lawyers and how we can help. 

Helping you achieve your ambitions 

Although a welcome step in the right direction, this £50m funding is just the beginning. A focus on the quality of social housing is needed in the long term, not only now as a way to boost the economy. More than anything, the wellbeing of those who live in social housing must be prioritised. 

To see how our team of experts can help create a more sustainable future for your organisation, as well as the wider community, contact a member of our social housing team. 

Contact us

We have launched our guide to recovery and resilience, helping to support businesses and individuals unlock their potential, navigate their way out of lockdown and make way for a brighter future. Further advice in relation to COVID-19 can be found on our dedicated coronavirus resource hub.  

From inspirational SHMA Talks to informative webinars, we also have lots of educational and entertaining content for life and business. Visit SHMA® ON DEMAND. 

Our free legal helpline offers bespoke guidance on a range of subjects, from employment and general business matters through to director’s responsibilities, insolvency, restructuring, funding and disputes. We also have a team of experts on hand for any queries on family and private matters too. Available from 10am-12pm Monday to Friday, call 0800 689 4064. 

SHMA® ON DEMAND

Listen to our SHMA® ON DEMAND content covering a broad range of topics to help support you and your business.

Agriculture: diversifying or leasing your land to create habitat banks

6 Jul

Peter Snodgrass, Partner & Head of Agriculture
Agriculture: diversifying or leasing your land to create habitat banks

We know that biodiversity net gains provide a significant opportunity for landowners to diversify […]

Teachers’ Pension Scheme – strategic issues independent schools need to think about

20 Jul

Esther Maxwell, Legal Director | Emma Glazzard, Solicitor
Teachers’ Pension Scheme – strategic issues independent schools need to think about

Webinar Teachers’ Pension Scheme – strategic issues independent schools need to think about In […]

Misconduct outside the workplace and business disrepute

8 Sep

Michael Hibbs, Partner | Danielle Humphries, Solicitor
Misconduct outside the workplace and business disrepute

In this webinar, Mike Hibbs – Partner and Robin Gronbech - Solicitor in our […]

Our thoughts

All the latest views and insights on current topics.

Abbey Healthcare (Mill Hill) Ltd v Simply Construct (UK) Llp

29 Jun

Education

Abbey Healthcare (Mill Hill) Ltd v Simply Construct (UK) Llp

The recent decision made by the Court of Appeal in Abbey Healthcare (Mill Hill) […]

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Don’t waste money on space you don’t use! Re-gear

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Biodiversity Net Gain – opportunities and obligations for developers and landowners alike

11 Apr

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How can we help?

Our expert lawyers are ready to help you with a wide range of legal services, use the search below or call us on: 0330 024 0333

Opinion

How uniting generations can support the care industry

How uniting generations can support the care industry

Care homes have been hit hard by COVID-19, with the number of vulnerable people under one roof causing the virus to spread alarmingly fast. As such, it is increasingly important to consider whether a more focused approach towards multi-generational retirement living should be on the agenda.

The elderly thrive from having younger people around them, both mentally and physically, and this pandemic could be what moves the care industry away from separating the generations.

What is multi-generational living?

Simply put, it consists of a mix of different ages living together on one complex. Often, these complexes have a range of communal spaces that offer retail, fitness and leisure along with quality housing accommodation.

With the correct design and operational processes in place, such as high cleaning standards and ensuring people can socially distance if needed, this approach can benefit both the elderly and young people alike.

What are the benefits?

By creating a community of all ages, a support network can be built. For elderly people who are unable to leave their homes due to illness – or self-isolation - younger people can help by getting their shopping or just by being a friendly face. This way, carers and nurses will be able to look after patients without having to worry about their general wellbeing.

Multi-generational living also offers the elderly a sense of independence, especially for those who do not have severe care needs, allowing them to stay social and build their confidence.

It can also help keep elderly people healthier generally, with the younger generation encouraging them to stay active.

How does multi-generational living work?

Multi-generational living can be implemented using the build-to-rent model. A relatively new addition to the housing market, this involves developers purchasing a site and building a set of high-quality apartments specifically for the rental sector.

Largely aimed at the younger generation, build-to-rent complexes include leisure facilities, retail units, and even cinemas. The goal is to entice people to move to the newest development with desirable and up-to-date facilities.

However, offering 24/7 security and on-site amenities means build-to-rent is also ideal for elderly people who want to stay independent.

Apartments can be made accessible throughout, enabling residents to choose any flat they wish and ensuring the complex stays multi-generational. Communal areas can also be used for activities that the older generation might enjoy, so they can form friendships with those their own age, as well as with their younger neighbours. Plus, if organised properly, care providers could see multiple individuals within the complex in one trip, saving them precious time.

Partnerships between build-to-rent complexes and care homes could even be created, ensuring elderly residents have easy access to all the help they could need.

Multi-generational living is not a quick fix for the care industry, but it is a promising route to consider. Retirement living will always be important for those with heightened care needs, but this arrangement offers an alternative that can support the care sector in the long run.

Contact us
If you’d like any further guidance, contact our real estate team.

Shakespeare Martineau has launched a free legal helpline offering bespoke guidance on a range of subjects from employment and general business matters, through to director’s responsibilities, insolvency, restructuring, funding and disputes. We also have a team of experts on hand for any queries on family and private matters too. Available from 10am-12pm Monday to Friday, call 0800 689 4064.

General advice in relation to COVID-19 can be found on our dedicated coronavirus resource hub.

SHMA® ON DEMAND

Listen to our SHMA® ON DEMAND content covering a broad range of topics to help support you and your business.

Agriculture: diversifying or leasing your land to create habitat banks

6 Jul

Peter Snodgrass, Partner & Head of Agriculture
Agriculture: diversifying or leasing your land to create habitat banks

We know that biodiversity net gains provide a significant opportunity for landowners to diversify […]

Teachers’ Pension Scheme – strategic issues independent schools need to think about

20 Jul

Esther Maxwell, Legal Director | Emma Glazzard, Solicitor
Teachers’ Pension Scheme – strategic issues independent schools need to think about

Webinar Teachers’ Pension Scheme – strategic issues independent schools need to think about In […]

Misconduct outside the workplace and business disrepute

8 Sep

Michael Hibbs, Partner | Danielle Humphries, Solicitor
Misconduct outside the workplace and business disrepute

In this webinar, Mike Hibbs – Partner and Robin Gronbech - Solicitor in our […]

Our thoughts

All the latest views and insights on current topics.

Abbey Healthcare (Mill Hill) Ltd v Simply Construct (UK) Llp

29 Jun

Education

Abbey Healthcare (Mill Hill) Ltd v Simply Construct (UK) Llp

The recent decision made by the Court of Appeal in Abbey Healthcare (Mill Hill) […]

Read article Right Arrow

Don’t waste money on space you don’t use! Re-gear

29 Jun

Real Estate & Planning

Don’t waste money on space you don’t use! Re-gear

With many companies now operating a hybrid working model following the work from home […]

Read article Right Arrow

The Building Safety Act 2022 – how it will affect house builders

19 May

Real Estate & Planning

The Building Safety Act 2022 – how it will affect house builders

Read article Right Arrow

Biodiversity Net Gain – opportunities and obligations for developers and landowners alike

11 Apr

Real Estate & Planning

Biodiversity Net Gain – opportunities and obligations for developers and landowners alike

Read article Right Arrow

The rationale for rationalising housing stock – post-pandemic

8 Apr

Real Estate & Planning

The rationale for rationalising housing stock – post-pandemic

Read article Right Arrow

Nutrient neutrality – how might it affect development

4 Apr

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Read article Right Arrow

The nationally significant infrastructure project regime and development consent orders – how to have your say

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How can we help?

Our expert lawyers are ready to help you with a wide range of legal services, use the search below or call us on: 0330 024 0333

Opinion

What impact has COVID-19 had on M&A activity?

What impact has COVID-19 had on M&A activity?

Prior to the lockdown, M&A activity in the UK was looking healthy, with the ‘Boris-bounce’ encouraging businesses to make big investments once more. Brexit was done, political stability had returned to some degree, and the risks surrounding deal-making had reduced.

Overall, there was plenty to be optimistic about: liquidity in the financial markets and banks with private equity holding plenty of financial fire power. Good assets were in demand from trade buyers and private equity, which was leading to prices being chased higher. However, these feelings of security were swiftly removed once COVID-19 began to spread, causing organisations to revaluate their priorities. So, what does the future look like for M&A?

What happened to M&As when lockdown began?

Many businesses reacted to lockdown by implementing steps to preserve cash, so it was inevitable that many deals were pulled by buyers or their financiers. However, the impact of lockdown is not spread evenly across all businesses; some sectors, such as food and drink have thrived, whereas others have been unaffected, for example, energy and renewables, and some technology businesses.

There has also been continuing investment activity into innovative MedTech businesses, with those who are investing in the future notably more willing to look through the trading issues arising from lockdown.

What about deal-making post lockdown?

Optimists hope that deals on hold will be dusted off and rapidly implemented. However, there’s always a risk that buyers will look at the hole in profits created during lockdown and decide either to wait for a longer period of more positive trading or a price adjustment.

Even now, before the lockdown has ended, businesses with cash reserves will be in a strong position. As a result, they may decide to seize the opportunity to make strategic acquisitions as their less financially healthy competitors suffer or even go into administration.

What could the post-lockdown environment look like?

In any period of change there will be uncertainty and hesitation, but change also brings opportunity. For the well-resourced and brave, there will be the chance to accelerate growth plans by making strategic or even opportunistic acquisitions at prices well below what would have been achieved before 2020.

Interest rates should remain low, with the Bank of England and the Government flooding the market with liquidity. Providing, of course, that the extra liquidity doesn’t lead to inflation, the post-lockdown landscape should be vastly different to the 2009 financial crash, where financial markets dried up completely.

However, if inflation does return, the question is: are businesses and advisers prepared to enter a high inflation/high interest rate environment?

The pandemic may have put a stop to some M&A activity, but for those in a stable financial position, it has also created opportunity. Nevertheless, it may be a while before UK deal-making returns to the heady heights it was at pre-lockdown.

Contact us

We have launched our guide to recovery and resilience, helping to support businesses and individuals unlock their potential, navigate their way out of lockdown and make way for a brighter future. Further advice in relation to COVID-19 can be found on our dedicated coronavirus resource hub.

From inspirational SHMA Talks to informative webinars, we also have lots of educational and entertaining content for life and business. Visit SHMA® ON DEMAND.

Our free legal helpline offers bespoke guidance on a range of subjects, from employment and general business matters through to director’s responsibilities, insolvency, restructuring, funding and disputes. We also have a team of experts on hand for any queries on family and private matters too. Available from 10am-12pm Monday to Friday, call 0800 689 4064.

SHMA® ON DEMAND

Listen to our SHMA® ON DEMAND content covering a broad range of topics to help support you and your business.

Agriculture: diversifying or leasing your land to create habitat banks

6 Jul

Peter Snodgrass, Partner & Head of Agriculture
Agriculture: diversifying or leasing your land to create habitat banks

We know that biodiversity net gains provide a significant opportunity for landowners to diversify […]

Teachers’ Pension Scheme – strategic issues independent schools need to think about

20 Jul

Esther Maxwell, Legal Director | Emma Glazzard, Solicitor
Teachers’ Pension Scheme – strategic issues independent schools need to think about

Webinar Teachers’ Pension Scheme – strategic issues independent schools need to think about In […]

Misconduct outside the workplace and business disrepute

8 Sep

Michael Hibbs, Partner | Danielle Humphries, Solicitor
Misconduct outside the workplace and business disrepute

In this webinar, Mike Hibbs – Partner and Robin Gronbech - Solicitor in our […]

Our thoughts

All the latest views and insights on current topics.

Long COVID and disability discrimination

4 Jul

Corporate & Commercial

Long COVID and disability discrimination

The employment tribunal has determined that an employee was disabled for the purposes of […]

Read article Right Arrow

Six things for Indian businesses to consider before expanding to the UK

4 Jul

Corporate & Commercial

Six things for Indian businesses to consider before expanding to the UK

According to the UK’s Department for International Trade the proposed trade arrangement between India […]

Read article Right Arrow

Employment Contracts Vs Consultancy Agreements

27 Jun

Employment Contracts

Employment Contracts Vs Consultancy Agreements

Read article Right Arrow

Shakespeare Martineau appoints expert director to company secretary team

20 Jun

Corporate & Commercial

Shakespeare Martineau appoints expert director to company secretary team

Read article Right Arrow

Spring 2022 Consumer Finance Update

17 Jun

For the individual

Spring 2022 Consumer Finance Update

Read article Right Arrow

Helping employees keep their cool in a heatwave

17 Jun

Employment

Helping employees keep their cool in a heatwave

Read article Right Arrow

We win top intellectual property award

16 Jun

Firm News

We win top intellectual property award

Read article Right Arrow

How can we help?

Our expert lawyers are ready to help you with a wide range of legal services, use the search below or call us on: 0330 024 0333

Opinion

Times are changing for UK care homes

Times are changing for UK care homes

COVID-19 has sadly spread through UK care homes at an alarming rate, causing a tragic number of deaths. However, the communal design of standard care homes means this doesn’t come as a surprise.

In normal circumstances, the social layout of care homes is a huge positive, reducing loneliness and creating a sense of community. Unfortunately, it also makes it much easier for COVID-19 to spread quickly throughout the home and as a result, it may be time to re-assess a number of issues for the care industry.

Embracing change - processes may need to be updated

Undeniably, those who work in care homes are doing the very best they can to provide outstanding care to residents. However, as the struggles of care homes show, the operation workings of the industry  may be in need of an update.

Many businesses had already introduced flexible working for people who were not feeling well enough to travel to work, even before the pandemic. By allowing people to work from home when they feel ill, but when feeling well enough to work, the spread of disease throughout the workforce is slowed and sometimes halted. Granted, carers may not be able to work from home in the same way office workers can, but there are similar alternatives. For example, staff could take on non-contact jobs, such as administration, while they are ill to protect their colleagues and the vulnerable residents.

How technology is used also needs to change in care homes. As we have seen with COVID-19, isolation is an essential part of keeping people safe. Therefore, investing in technology, such as tablet computers, to help people who are isolating feel less alone, is vital.

For modern care homes, which often already have some form of tablet in each room, the embracing of technology should be fairly straightforward. However, for older homes, it could be a more challenging task. Improving WiFi speeds and the purchase of inexpensive tablets for resident to use for entertainment and communication would be a step in the right direction.

Consider altering layouts, where possible

COVID-19 has demonstrated the importance of being able to social distance, and there are several ways this could be facilitated:

  • One-way-systems in corridors
  • Using fire exits as temporary exits to avoid people passing each other at the entrance
  • Introducing a ‘one at a time’ arrangement where a one-way-system isn’t possible
  • Widening corridors if money or building structure allows
  • Repositioning furniture in communal areas
  • The creation of roof terraces where there is a shortage of communal space

As well as protecting people during COVID-19, these layout changes could also be a potential lifesaver during flu season.

When it comes to the wellbeing of residents, adapting care homes for social distancing and isolation will provide numerous benefits long into the future.

Contact us

For further guidance surrounding COVID-19 and how it may affect UK care homes, speak to a member of our real estate team.

We have launched our guide to recovery and resilience, helping to support businesses and individuals unlock their potential, navigate their way out of lockdown and make way for a brighter future. Further advice in relation to COVID-19 can be found on our dedicated coronavirus resource hub.

From inspirational SHMA Talks to informative webinars, we also have lots of educational and entertaining content for life and business. Visit SHMA® ON DEMAND.

Our free legal helpline offers bespoke guidance on a range of subjects, from employment and general business matters through to director’s responsibilities, insolvency, restructuring, funding and disputes. We also have a team of experts on hand for any queries on family and private matters too. Available from 10am-12pm Monday to Friday, call 0800 689 4064.

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Opinion

The theory of eternal recurrence and the OIA’s Annual Report 2019

The theory of eternal recurrence and the OIA’s Annual Report 2019

Reading the OIA’s recently published annual report for 2019 reminded me of my days as a philosophy student exploring the theory of eternal recurrence - that theory proposes a universe in which all existence and energy have been recurring and will continue to recur in a self-similar form an infinite number of times across infinite time and space. 

My wistfulness was induced by the cases studies the OIA sought to highlight, which indicate that basic, but serious, errors in dealing with students continue to be made.  Anyone who deals with student complaints knows only too well that they are incredibly time-consuming, particularly if referred to the OIA.   By highlighting the recurring themes, perhaps we can subvert the haunting sense of predeterminism that the OIA’s case studies create.

Unfair procedures 

The right of the student to know the case against them is one of the axioms of fairness.  While the right must be discharged in any disciplinary decision-making process, it is particularly important in fitness-to-practise (FTP) proceedings where an adverse finding could deprive a student of their right to practise their chosen profession, itself a right recognised under Article 8 of the European Convention on Human Rights.

In one case adduced by the OIA, it concluded that it was reasonable for a provider to suspend a student’s placement while concerns were being investigated.  There was however no proper FTP process by which to investigate those concerns. No advance notice was provided to the student regarding the case against them, they were not afforded a reasonable opportunity to respond and there was no right of appeal.  In addition, the provider did not maintain a proper record of meetings with the student nor of the reasons for its decisions.

Another case cited involved a nursing student, who was the subject of FTP proceedings as a result of concerns raised by the placement provider, where14 different parts of the NMC Code were referred to, but no specific details of how and when the student had breached them were provided. Furthermore, the provider prevented the student from contacting potential witnesses the student had identified, but had not itself sought to contact those witnesses before the hearing took place, clearly at variance with duty to conduct an impartial investigation. The FTP panel included a member of the placement provider’s staff, giving rise to an appearance of bias, and no reasons were provided to explain why termination of the student’s registration was an appropriate sanction or why a lesser sanction would not have been appropriate.

Sexual harassment and misconduct

Unsurprisingly, there has been an increase in OIA complaints relating to sexual misconduct, though the actual numbers remain relatively low.  The partly-justified case adduced by the OIA relates to an allegation of serious sexual assault which was investigated by the police, during which the responding student was suspended from his studies.  The decision to suspend was made notwithstanding the fact that:

  • the reporting and responding students did not study at the same campus;
  • the responding student’s bail conditions did not impose any conditions on his movement;
  • the responding student needed to be on campus only one day per week; and
  • he agreed to any restrictions on his movement that the provider would seek to impose.

Furthermore, the suspension continued when the reporting student decided to interrupt their studies for the remainder of the academic year. The OIA concluded that the provider should have reconsidered the suspension, taking into consideration all of those factors.

A failure to take into account relevant facts/considerations when making decisions is a classic ground of judicial review and this case provides a good illustration of a flawed decision-making process.

Students with a disability

The Equality Act 2010, which is now ten years old, expressly provides that there is no discrimination if a student with a disability is treated more favourably than a student who does not have that disability. It is surprising therefore, that students with disabilities are being denied otherwise reasonable adjustments on the ground of unfairness to others, warranting complaints to the OIA, as a case study reveals.  It also resonates with cases on which we are asked to advise.

Another case relates to a student with autism and impaired motor and language skills, for whom the standard 25% additional time in examinations was not sufficient. The provider rejected the student’s complaint and did not consider whether the student continued to be at a disadvantage and hence whether any further steps were necessary.

A third case cited continues a familiar theme of providers failing to comply with their own procedures and failing to apply their mind to relevant evidence when making a decision. The case concerned a student with mental ill-health and a low attendance rate, whose appeal was heard by a single individual, rather than by a panel as provided under the provider’s relevant procedure, There was no record of the decision-maker taking into account the medical evidence provided. The OIA recommended a fresh appeal.

All three disability-related complaints included in the case summaries were deemed fully justified. Some of these issues are highlighted in one of our previous blogs – reflections on disability.

Consumer protection

Informed choice is a hallowed principle enshrined in consumer protection law.  Students rely on the material information provided to them in prospectuses and on websites to inform their choice of course and institution, often so they can maximise their comparative advantage or conversely to avoid their comparative disadvantage. Consider the poor student with a low aptitude for maths, who enrolled on a Masters in a business-related course, only to discover that several modules contained challenging mathematical content. The information provided did not inform potential applicants that the course required A-level maths or a degree in a mathematical subject. The student’s complaint was deemed fully justified.

What are the lessons to learn from last year?

Fairness

Ensure your disciplinary procedures are fair, not only in the drafting, but also in the implementation, and comply with them.  They should provide for:

  • an impartial investigation;
  • ample opportunity for the student to know the case against them and to defend themselves. That should in practice include properly-drafted charges briefly setting out the alleged facts in chronological order, with a cross-reference to the specific parts of the relevant code that is alleged to have been breached;
  • an impartial decision-maker i.e. ensure not only the absence of bias but also of the appearance of bias;
  • reasoned decisions; and
  • records to show that all relevant facts were taken into account in making decisions e.g. suspension, guilt/innocence, penalty.

In relevant misconduct cases, particularly alleged sexual misconduct, both reporting and responding students should be kept informed of the progress of the process and informed of the outcome.

Disability

Notwithstanding standard adjustments for classes of disability, individual circumstances should be taken into account that may warrant deviating from those standard arrangements.

You need to demonstrate that all medical evidence was considered when making decisions regarding adjustments.

Consumer protection

Ensure that you inform applicants’ choices and ensure material information contains a clear indication of the entry requirements for each course.

Contact us
For further information please contact Geraldine Swanton or another member of the education team.

For legal support in relation to the coronavirus or any other matter, get in touch with your team today.

We have launched our guide to recovery and resilience, helping to support businesses and individuals unlock their potential, navigate their way out of lockdown and make way for a brighter future. Further advice in relation to COVID-19 can be found on our dedicated coronavirus resource hub.

From inspirational SHMA Talks to informative webinars, we also have lots of educational and entertaining content for life and business. Visit SHMA® ON DEMAND.

Our free legal helpline offers bespoke guidance on a range of subjects, from employment and general business matters through to director’s responsibilities, insolvency, restructuring, funding and disputes. We also have a team of experts on hand for any queries on family and private matters too. Available from 10am-12pm Monday to Friday, call 0800 689 4064.

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Opinion

Turnover rents: Is it time for a comeback?

Turnover rents: Is it time for a comeback?

Retail is one of the sectors that COVID-19 has hit particularly hard. The UK High Street was already struggling, and with the restrictions implemented by the Government causing the majority of shops to close their doors, a positive change cannot come soon enough.

E-commerce has lightened the load for some retailers, but many are finding it difficult to keep up with rent and overhead costs on empty outlets. In order to survive, commercial landlords and tenants must change the way they operate. Could turnover rents be the answer?

What are turnover rents leases?

The aim of this form of lease is to allow both tenant and landlord to share in the good times and the bad. Generally, it works by dividing the payment into a fixed term base rent, which is determined by current market conditions, and a turnover element, which is determined by the financial performance of the tenant. The percentages of the base rent and the turnover element can be negotiated by both parties.

On the whole, this makes them a very helpful agreement for retailers, although their reputation does need to improve among landlords. This being said, what works for one does not work for all, and so retailers should first assess whether turnover rent will benefit them in the long-term.

With great power comes great responsibility

Although turnover rents can hand some power back to the tenant, retailers must consider whether they can cope with the level of responsibility they carry.

Compliance is key, with retailers required to keep careful and detailed records of all items sold and to provide their landlord with regular ‘turnover certificates’. Should the trust between landlord and tenant be broken, a full audit can be undertaken, including a right to inspect and query any business’ records.

Negotiate your agreement

To avoid time consuming and costly disputes, retailers should create an agreement with landlords prior to signing a lease. Conversations should include:

  • Whether online sales, VAT and bad debts can be excluded from the turnover calculation
  • Whether discounted goods should appear in the turnover figures at full price
  • Whether a tailored turnover calculation is needed for each brand a retailer sells

Agreements should also contain a disputes provision in case the turnover rent element cannot be agreed.

Expert advice is essential when negotiating agreements and turnover rent percentages. Addressing any issues at an early stage can help to mitigate against unnecessary cost and time delays.

Don’t be afraid to talk

As always, honest communication is vital to negotiating a solution that benefits both parties. The current unstable climate means landlords may be hesitant to sign a turnover rent agreement at this time. As such, retailers should assess what they can offer a landlord in return. For example, agreeing a slightly longer lease to give the landlord more security.

Flexibility is necessary if the retail sector is to come out of the other side of this pandemic fighting. Considerable change is needed, and conversations between landlords and tenants regarding the reintroduction of turnover rents could be a good place to start.

Contact us
For further information please contact Julian Joseph or another member of the real estate team.

Shakespeare Martineau has launched a free legal helpline offering bespoke guidance on a range of subjects from employment and general business matters, through to director’s responsibilities, insolvency, restructuring, funding and disputes. We also have a team of experts on hand for any queries on family and private matters too. Available from 9am-5pm Monday to Friday, call 0800 689 4064.

From inspirational SHMA Talks to informative webinars, we have lots of educational and entertaining content for life and business - visit SHMA® ON DEMAND.

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Opinion

The evolution of the utility company

The evolution of the utility company

 

The UK’s net zero by 2050 target has led to a rapid increase in the pace of transformation across the utilities sector. For utility companies to achieve this goal, business plans are having to be altered, placing sustainability higher up on the corporate agenda.

Environmental pressures are one of the factors causing corporations to reassess their position when it comes to the concept of “success”. The public perception is that success was all about profit, and complying with laws and social norms was an added extra. However, this has never been the whole story, in the nineteenth century, companies were set up for more altruistic reasons, and that is something the UK appears to be returning to.  Companies in general and utilities in particular, are re-examining their corporate purpose.

So, how can utility companies go about implementing a corporate purpose that benefits wider society, as well as shareholders?

What is success?

There are already different measures of success.  For example the ‘triple bottom line’ is where profit is not the only measure of success. Instead, there are, typically, three measures:

  • Profit
  • Social impact
  • Environmental impact

Several companies and stakeholders are now taking an interest in this approach, recognising the value of including public purposes in business plans. For example, in 1997, Shell produced its first sustainability report, entitled ‘People, Planet and Profit’. 20 years on from this, The British Academy launched their ongoing programme to redefine the future of corporations, which looks to expand the corporate purpose of companies to include public purposes.

What are the legal issues?

For companies wishing to develop and re-define their corporate purpose, they must balance a level of societal value against the pure financial interests of shareholders.

The Companies Act 2006 states that directors must “act in the way he considers in good faith would be most likely to promote the success of the company for the benefit of its members as a whole…” As part of this duty, directors should also “have regard” to a number of factors, including employees, the community and environmental impact. Nevertheless, these do not override the principal purpose of benefitting members.

What is the process?

It is possible to broaden corporate purpose by amending articles of association.  Without this change to the articles directors may well be in breach of their fiduciary duties if they are guided by a broader corporate purpose.  We have seen capital provider which themselves have a wider societal purpose insisting that companies they invest in define their corporate purpose more widely than just profit so that directors are forced, by their fiduciary duties, to have a wider view of their decisions...

Amending articles of association usually requires a 75 percent majority on the votes cast on the resolution, but once agreed, the new corporate purposes would become the purposes for which the directors are required to operate, instead of shareholder value.

To some extent, the public purpose has moved onto the corporate agenda organically. However, particularly in the wake of COVID-19, the requirement for companies to widen their societal purpose may be more vital. Transformation does not look set to slow any time soon, so utilities companies must ensure they understand both the more altruistic route being taken and the law as it currently stands if they wish to keep up with the evolution of the sector.

Contact us

To find out more, contact Richard Wrigley, corporate partner in our energy team.

Shakespeare Martineau has launched a free legal helpline, with a team of experts on hand for any queries on family and private matters. We are also offering bespoke guidance on a range of other subjects, from employment and general business matters, through to director’s responsibilities, insolvency, restructuring, funding and disputes. Available from 10am-12pm Monday to Friday, call 0800 689 4064.

General advice in relation to COVID-19 can be found on our dedicated coronavirus resource hub.

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Garden centres are wilting due to COVID-19

Although necessary, these closures have come at the worst possible moment for garden centres, as it’s their busiest time of the year. The value of stock during this key trading period is typically three to four times the year-end value of most businesses. If the garden centres have no customers, it’s a nightmare scenario.

Plant growers are also feeling the strain, with a number already on the edge of insolvency. In fact, according to a Horticultural Trades Association (HTA) survey, one-third of UK plant growing firms say they fear they will go bust by the end of 2020, because of COVID-19.

Some may be able to consider restructuring options if they take early advice and utilise the Government’s package of help, but for many it’s already too late. Plus, according to the HTA, despite applying, fewer than a fifth of growers have received help through the Government’s business support measures, leaving them in a state of financial limbo.

Can garden centres recover from the COVID-19 outbreak?

It’s currently very difficult times for both businesses and gardeners, as the industry itself usually brings so much joy to consumers. Unless garden centres are able to reopen soon, there is the very real prospect that those self-isolating in their gardens will fail to see them bloom in the months ahead.

On the upside, the increase in the online sales of seeds has led to a shortage, so it won’t be an entirely plant-free summer.

Contact us

For businesses looking for further guidance, contact Michael Mulligan in our insolvency team.

Shakespeare Martineau has launched a free legal helpline offering bespoke guidance on a range of subjects from employment and general business matters, through to director’s responsibilities, insolvency, restructuring, funding and disputes. We also have a team of experts on hand for any queries on family and private matters too. Available from 10am-12pm Monday to Friday, call 0800 689 4064.

General advice in relation to COVID-19 can be found on our dedicated coronavirus resource hub.

All the latest views and insights on coronavirus.

One of the many obligations that a charity must abide by is the requirement to report ‘any significant financial loss’ to the Charity Commission.  However what does this actually mean for a charity in practice?  Is this even still relevant in the current coronavirus pandemic?

It is well documented how charities are suffering during this pandemic in many ways.  Charities that rely on visitors and their donations, such as religious organisations or venues like art galleries or museums are seeing themselves particularly hard hit, as are all non-health related charities.  If all of these charities were to report ‘significant financial loss’, the Charity Commission could easily be overrun.

It is a difficult call for charities to make, particularly as the Charity Commission is asking trustees to err on the side of caution, but generally speaking a report should be made if:

Of course during this time of change, as well as reviewing their financial positions, all charity trustees should be reviewing and planning for the future looking at how the current pandemic is affecting their own operation.  Is their ability to comply with the charitable objectives either now and in the future being jeopardised?  Staff on furlough leave, possible redundancies, the loss of premises or assets for example will all have a massive impact.

With over 168,000 charities contributing £17.1bn to the UK economy they are a hugely important part of the business landscape. Trustees are advised to discuss the position with a legal adviser and take a holistic approach as to whether the current situation poses a significant threat to the solvency of the charity. At the forefront of minds should be whether the current economic climate is enough of a significant impact upon the charity’s operations and will therefore cause serious harm to the charity’s work now or in the future.

Contact us

To discuss any of these issues or to consider more general estate planning please contact Vicki Simpson or another member of the charities team in your local office.

Shakespeare Martineau has launched a free legal helpline, with a team of experts on hand for any queries on family and private matters. We are also offering bespoke guidance on a range of other subjects, from employment and general business matters, through to director’s responsibilities, insolvency, restructuring, funding and disputes. Available from 10am-12pm Monday to Friday, call 0800 689 4064.

General advice in relation to COVID-19 can be found on our dedicated coronavirus resource hub.

All the latest views and insights on coronavirus.

To this end, the OfS is consulting on a new temporary condition of registration, intended to last for a period of one year from the date it comes into force. The consultation ends on 26 May 2020.

The consultation proposes a new condition E6 as part of the suite of management, governance and accountability conditions, as follows: “the provider must not engage in any form of conduct which in the opinion of the OfS could reasonably have a material negative effect on the stability and/or integrity of the English Higher Education Sector”.

What issues does the imposition of this condition raise for the sector?

From a legal perspective, the obligations imposed by the condition appear broad and onerous and attach to a very wide range of decisions that providers are making at a time of unprecedented disruption and uncertainty. Providers will need to second guess the impact of their decisions on the sector as a whole and what view the OfS will take of each decision. Broad, unspecific obligations such as this create risks of unfairness and oppressive behaviour by regulators, and could lead to legal challenges.

More fundamentally, the requirements of the condition cut across institutional autonomy not just in admissions but potentially in a whole host of other areas. It has become fashionable to knock the importance of autonomy but it has been a key part of the success of our world leading higher education sector to date. It is also difficult to see how, having adopted this approach “temporarily”, the OfS steps back from this once the emergency subsides if these steps are truly needed to achieve the outcomes described in the consultation. Like so many other areas, coronavirus may have changed the regulation of higher education for ever.

Contact us

For further information on this new condition E6 or another other issue affecting the higher education sector at this time please contact Smita Jamdar or another member of the education team.

If you would like advice or guidance on any legal or commercial matter, a member of our team can walk you through everything. Click here to discuss.

For more general business advice in relation to coronavirus visit our dedicated resource hub.

All the latest views and insights on coronavirus.

Property problems

The current situation is incredibly fluid, making assessing the true impact on the residential market a complex task. However, a range of issues have been highlighted, including:

These problems have led to estate agents closing and prohibiting viewings, as well as the suggestion from the Government that transactions shouldn’t go ahead, even when contracts have been exchanged.

Halting construction

Not only has COVID-19 put a stop to the sale of houses, it has also put a spanner in the works when it comes to building properties. Most of the UK’s biggest house builders are now in lockdown, putting a temporary stop to many new build developments. However, the good news is that many house builders are starting to announce that they are returning to sites and have brought in measures for social distancing to enable construction to begin again.

For purchasers who have already exchanged contracts with house builders, developers have been asking to delay completion, resulting in people being stuck in rental accommodation for an unknown amount of time. Although long-stop dates are common in new build contracts, not having a fixed end date for the lockdown means the impact COVID-19 will have on completions is unclear.

Breach of contract

If an exchange has already taken place and either party is unable to complete, then this is a breach of contract. Under normal circumstances, a 10-working day notice period would be served on the party causing the delay, during which interest accrues on the purchase price. The defaulting party are also then liable for any expenses incurred by the other party at this point. However, The Law Society and others have suggested that lawyers take a common-sense approach, varying contracts to allow for delay.

Offering a solution

Completion failures during COVID-19 will be unavoidable, as such, the non-defaulting party can opt to take a ‘good faith’ view. This means the party will not take advantage or make an issue of minor errors, ensuring the objectives of the contract can still be met. This being said, if the transaction forms part of a longer chain, this might not be viable and a delay a better option.

For those who have yet to exchange contracts, it could be wise to include a clause which allows for delay due to COVID-19 making completion impossible at this time.

The current situation is something nobody has experienced before, so being as fair as possible during this time is vital. Cases should be reviewed individually, with long-term considerations kept in mind, enabling people to make it through this uncertain period and complete transactions once normality returns.

Contact us

To discuss any of these issues or to consider more general estate planning please contact Louise Drew or another member of the residential conveyancing team in your local office.

Shakespeare Martineau has launched a free legal helpline, with a team of experts on hand for any queries on family and private matters. We are also offering bespoke guidance on a range of other subjects, from employment and general business matters, through to director’s responsibilities, insolvency, restructuring, funding and disputes. Available from 10am-12pm Monday to Friday, call 0800 689 4064.

General advice in relation to COVID-19 can be found on our dedicated coronavirus resource hub.

In this edition, we take a look at recent cases where estate administrations have been delayed and we provide you with our hints and tips for progressing slow estate administrations and continuing to generate legacy income at this difficult time.

RECENT CASES

Charities can be faced with a number of hurdles when it comes to estate administration. Currently those challenges may be due to the knock on effect of Covid-19 or a result of other challenges and claims, perhaps brought by disgruntled beneficiaries or family members.  We take a look at two such recent cases.

Ali v Taj (2020)

Mr Mohammed Taj died in 2007 and a grant of probate was obtained in May 2008. The residuary beneficiaries of Mohammed’s estate, his widow and children from his first marriage, were still yet to receive an inventory and accounts from the executors relating to the estate 11 years after his death.

Requests for information were made numerous times by the residuary beneficiaries, however only limited, deficient information was provided by the executors. The executors stated that the delay was due investigations being carried out by HMRC into Mohammed’s affairs.

The residuary beneficiaries subsequently issued a summons for an inventory and account.

A first hearing took place without notice to the parties and the judge ordered the executors to provide an inventory and account within 28 days and pay the residuary beneficiaries’ costs. The executors appealed and a further hearing to consider the summons application took place, with all parties and counsel in attendance.

The court upheld the previous finding, noting that providing an account and inventory was a “cardinal” and important duty of a personal representative and beneficiaries are usually always entitled to this information.

This case highlights executor’s duties and provides a useful reference for when faced with situations where executors may be dragging their feet in providing estate inventories and accounts, delaying completion of an administration of an estate as a result.

RNLI v Sonya Young (2019)

Mr Brian Cole, a former lifeboatman, left a legacy of £268,000 from his estate worth nearly £300,000 to the RNLI in his last will. His previous will made in 2012 had left the majority of his estate to his former partner, Ms Angela Saunders, and his will before that made in 2008 left the majority of his estate to his daughter, Ms Sonya Young. His latest will left Angela and Sonya both £5,000 each.

The administration of Brian’s estate was delayed due to Angela and Sonya’s prevarication and assertion that Brian’s last will was invalid on the grounds of mental capacity. As a result, the RNLI issued a probate claim to propound the last will.

The RNLI’s claim was successful and the Judge, Master Teverson, ordered probate of the last will in an oral judgment on 19 July 2019.

Unfortunately Sonya had turned down a pre-trial settlement offer from the RNLI of approximately £30,000 and she had spent around £54,000 of Brian’s estate funds by the time of the judgment. A charging order was subsequently placed on her house and she faces having to sell her home to pay the RNLI the shortfall in their legacy.

Following the landmark Supreme Court decision in Ilott v Mitson (2017), it is encouraging to see courts continuing to uphold charity legacies equivalent to the majority of the estate. This case also highlights the importance of pushing forward estate administrations whilst protecting estate assets.



TOP TIPS ON HOW TO PROGRESS ESTATE ADMINISTRATIONS

Cases such as Taj v Ali and RNLI v Young give us food for thought when considering what charities should do when faced with a delay to an estate administration.

Here are our top tips for what to do when faced with this:

1. Don’t be afraid

If a person wants to prevent an estate being administered by challenging a will, they can lodge a caveat at the probate registry to prevent a grant of probate being obtained. Sometimes, the person who lodges the caveat (the ‘caveator’) takes little further action and this leads to a delay in an estate being administered and prolong legacies being paid to beneficiaries.

If payment of a legacy to you is delayed due to a caveat being lodged, do not be afraid to challenge it. You can consider ‘warning off the caveat’ by objecting to the caveat being in place and stating your interest in the estate to the Probate Registry. The caveator then has 14 days from the date of the warning to respond and state their position (known as “entering an appearance”). If the Probate Registry is not satisfied with the ‘appearance’, it may be refused or you could apply to have it struck out, resulting in a grant of probate then being taken.

This can be a good way to challenge a potential claim at an early stage. Should the matter go to court in the future, the caveator may be at a risk of having a costs order made against them due to keeping a caveat in place without bringing a will challenge purely in order to delay probate.

2. Protect estate funds

Where a probate dispute arises, it is a good idea to take steps to protect the funds in the estate at an early stage to avoid the risk of funds being spent, as in RNLI v Young.

There are a number of ways this can be done;

3. Interim distributions

Where administration of an estate is delayed, and perhaps has been for some time, you could attempt to agree an interim distribution of a legacy owed to you with the executors and other beneficiaries.

Interim payments can be a good way to secure payment of your legacy and bring in legacy income more quickly.

Interim distributions are often a viable option where the value of the estate is such that it can accommodate an interim payment whilst retaining enough of a fund to cover future liabilities.

Ask questions of the executors to check that they are not holding on to funds without good reason. Queries could be made as to what the future liabilities are likely to be, when these liabilities are likely to occur and whether they can be funded in different ways, such as by regular income from other assets in the estate. This may be viewed more objectively by a professional executor as they do not to have the same emotional connection to the estate as lay executors.

It is important however that, where there is ongoing litigation between beneficiaries, all beneficiaries are treated equally and the interim distribution does not leave one party with an unfair fighting fund. 

4. Early settlement

Early resolution of a dispute is always beneficial to all parties. It is both cost effective and saves time for both parties as the estate can be distributed more quickly.

Where there is some merit in a potential claim, various methods of alternative dispute resolution can be considered, including mediation, round table discussions and without prejudice negotiations. This can be implemented at all stages of litigation as well as the pre-litigation stage.

Despite the current lockdown and social distancing measures in place, mediations and court hearings are continuing to be held remotely by electronic means. As such, offers to mediate should continue to be made and accepted to try and achieve early settlements in disputes.

5. Seek legal advice 

To avoid the unnecessary delay of estate administrations, it is best to seek legal advice at the point that you are made aware of a potential dispute.
Obtaining legal advice as early as possible can help to resolve disputes in a timely manner and save costs further down the line.

Contact us

Shakespeare Martineau has launched a free legal helpline offering bespoke guidance on a range of subjects from employment and general business matters, through to director’s responsibilities, insolvency, restructuring, funding and disputes. We also have a team of experts on hand for any queries on family and private matters too.

Available from 10am-12pm Monday to Friday, call 0800 689 4064.

General advice in relation to COVID-19 can be found on our dedicated coronavirus resource hub.

All the latest views and insights on COVID-19 (coronavirus)

Decisions to waive or refund accommodation fees in any event have been made by institutions on ethical or moral grounds.  For example, there is an inextricable link between the tuition contract, the student experience and the provision of on-or near-campus accommodation, which the transfer of teaching to online media has attenuated.

Some institutions believed that in the circumstances, it was appropriate to release students from any likely continuing contractual obligations under the accommodation licence. Institutions were also genuinely concerned about students who are vulnerable to hardship; brand and reputation may also have played a part in the decision.

There is clear pressure being exerted on private landlords to follow suit, including exhortations from the NUS, supported by UUK.  Landlords are a varied group, ranging from individuals owning one house to commercial companies owning and managing large complexes of student halls of residence.  This article explores why private landlords may not wish to follow institutions’ lead and why their motives for not doing so are not entirely ignoble.

Guidance for private landlords providing rented student accommodation

Most private landlords let their properties on assured shorthold tenancies. These are the most common type of tenancy for residential lettings and are no different from the tenancies enjoyed by non-student private renters.  Considerations such as the student experience and face-to-face teaching play no part whatsoever in the contractual relationship; the cessation of campus life prevents neither party from discharging their contractual relationship.  As far as a landlord is concerned, the property remains available for occupation for the remainder of the summer term in accordance with both parties’ contractual obligations.

Can private landlords still make students pay their rent during COVID-19?

Under the Coronavirus Act 2020, if tenants refuse to pay their rent, a landlord is prevented from bringing court proceedings to evict them (on grounds of non-payment of rent) unless at least three months’ notice has been given – even where notice has been given, possession proceedings have been suspended for a period of 90 days from 27 March 2020. In reality, a landlord is unlikely to be able to evict tenants until the autumn.

In addition, even if a landlord were to voluntarily release tenants from the contract, the residential rental market is currently stagnant and the potential for re-letting is low. A landlord therefore has no effective means of mitigating their loss.

Whilst it is not the role of lawyers to opine on ethics or morality, or to assess the balance of moral responsibility in these matters, the following are reasons why a private landlord may not believe it appropriate to forgo rental income:

That said, landlords should consider how the decision not to forgo the rent might affect the relationship with their tenants. If tenants have agreed to rent the property for a number of years, the landlord may want to take this into account.

What are the repercussions for students not paying their rent?

If tenants are currently unable to pay, they should be having conversations with their landlord to see how best the parties can deal with the situation. Whilst the landlord may not be able to evict the tenants in the short term, the tenants may be faced with a claim for significant rent arrears if they do not reach an agreement with the landlord and decide to simply stop paying their rent.

As with most stories, there are two sides.  Not all landlords are swathed in wealth and not all students will suffer hardship.  Who decides where the moral imperative lies? Clearly there are different considerations depending on the landlord’s circumstances, and the terms of the letting, but there may be a role for government in resolving this question with input from both landlords and the sector.

Contact us

To discuss any of these issues or to consider more general commercial please contact Martin Edwards or another member of the real estate disputes team in your local office.

Shakespeare Martineau has launched a free legal helpline, with a team of experts on hand for any queries on family and private matters. We are also offering bespoke guidance on a range of other subjects, from employment and general business matters, through to director’s responsibilities, insolvency, restructuring, funding and disputes. Available from 10am-12pm Monday to Friday, call 0800 689 4064.

General advice in relation to COVID-19 can be found on our dedicated coronavirus resource hub.

Survival mode

A number of high street brands such as Carluccios, Warehouse and Oasis have already announced administration as a means of survival whilst they restructure. The news of Debenhams entering into its second administration within a year was not a surprise. Creditor pressure and COVID-19 was a combination that couldn’t be fought without urgent protective action.

However, these companies are not the only well-known names to make a drastic decision in order to survive. New Look have announced plans to suspend payments to suppliers for existing stock “indefinitely”, telling them in a letter that the items could be collected by their suppliers.  Both Primark and Arcadia have cancelled large orders from their suppliers. Asda have announced that they are reducing payments to their clothing suppliers. Currently, getting access to credit lines is the main obstacle for many businesses, and coronavirus means that the cash flow situation isn’t going to improve any time soon. However, the Government has recognised the imminent threat of insolvencies, stating that it plans to facilitate cash injections and other financial support for businesses.

Time to get innovative

Retailers may have had to physically shut up shop, but that doesn’t mean they can’t still raise awareness of their brand. Net-A-Porter, a luxury fashion e-commerce company, have taken advantage of the popularity of Nintendo’s Animal Crossing: New Horizons, by working with Chinese fashion designers to create avatar skins for characters. As well as being available to download in game, the clothes are also available to purchase in real life.

Other companies are increasing their online presence. Many companies are adapting their businesses. For example, food producers previously selling to the hospitality sector are gearing up to provide home deliveries. Some innovative new businesses are being set up, for example, acting a middleman between garden centres and households.

Be practical

Innovation is a key part of making it through these complex times, but practical issues, such as managing cash flow relating to property, are also a priority.

For many smaller companies, business rates holidays and loans aren’t going to be enough for them to weather the storm. In fact, a more pressing concern will be rent payments, with rent holidays, suspensions, reductions or more manageable payment schedules needed. Further information regarding negotiating commercial rent agreements can be found at our coronavirus hub.

While retailers wait for the promised funds and other payment mechanisms to materialise, they must begin innovating, communicating, and documenting the damage that COVID-19 has done to their business. E-commerce may offer some relief, but this will only help so much for those without access to credit lines.

For more guidance, contact a local member of our real estate team.

Shakespeare Martineau has launched a free legal helpline offering bespoke guidance on a range of subjects from employment and general business matters, through to director’s responsibilities, insolvency, restructuring, funding and disputes. We also have a team of experts on hand for any queries on family and private matters too. Available from 10am-12pm Monday to Friday, call 0800 689 4064.

General advice in relation to COVID-19 can be found on our dedicated coronavirus resource hub.

All the latest views and insights on coronavirus.

The EU state aid rules are in place to regulate the use of subsidies in order to maintain a level playing field and to ensure the internal market is not fragmented. The EU state aid rules already permit governments to use economic tools to respond to the immediate economic consequences of the pandemic.  They also already permit general measures that do not constitute aid (e.g. deferral of payments of VAT or social security contributions). However, public funding which provides support for more targeted measures are usually subject to strict compliance rules. The EU Commission has issued two recent communications which provide that a wide range of government measures to respond to the pandemic are exempt and these will affect educational institutions

What do these communications cover?

Temporary Framework

The EU rules anticipate aid in order to make good the damage caused by “exceptional occurrences”. In its recent Communication described as the Temporary Framework For State Aid Measures To Support The Economy In The Current COVID-19 Outbreak, the pandemic was recognised as an exceptional occurrence.

The Temporary Framework is set out in the Commission’s Communication of 19 March 2020, subsequently amended on 3 April 2020, and applies until 31 December 2020 to all sectors and to all undertakings, except those that were already in difficulty by 31 December 2019.

The Temporary Framework covers schemes which offer direct aid to undertakings (except financial services) in various forms and for various objectives and provides for the following types of aid:

(i)  Direct grants, selective tax advantages and advance payments: Member States will be able to set up schemes to grant up to €800,000 to address urgent liquidity needs.

(ii)  State guarantees for loans taken by undertakings from banks: Member States will be able to provide state guarantees to ensure banks keep providing loans to the customers who need them.

(iii) Subsidised public loans to undertakings: Member States will be able to grant loans with favourable interest rates to undertakings. These loans can help businesses cover immediate working capital and investment needs.

(iv) Safeguards for banks that channel state aid to the real economy: Some Member States plan to build on banks’ existing lending capacities and use them as a channel for support to businesses – in particular to small and medium-sized enterprises. The Framework makes clear that such aid is considered as direct aid to the banks’ customers, not to the banks themselves, and gives guidance on how to ensure minimal distortion of competition between banks.

(v) Short-term export credit insurance.

In addition, to these general economic measures, the Amendment to the Temporary Framework from 3 April also provides exemptions for the certain aid measures for universities, research organisations and their industry partners which are looking to contribute towards finding solutions to the pandemic.

This means that our clients in the education and healthcare sectors can takes advantage of public funding subject to these rules, rather than the more detailed assessment which is usually required under the General Block Exemption Regulation (Regulation 651/2014):

(vi) R&D aid for COVID-19 products

R&D projects carrying out COVID-19 and other antiviral relevant research now benefit from more generous state aid measures, which permit aid of up to:

This is applicable to all eligible costs related to all necessary costs for R&D (including trial testing, personnel costs, costs for digital and computing equipment, costs for IPR and conformity authorisations).

As part of the conditions for this aid, the recipient must commit to grant non-exclusive licences under non-discriminatory market conditions to third parties in the EEA.

(vii) Aid for testing and upscaling infrastructure for COVID-19 products

The Temporary Framework permits aid for the construction or upgrade of testing, and upscaling infrastructures required to develop, test and upscale COVID-19 relevant medicinal products and treatments.

This provision permits aid up to 75% of eligible costs; and in order to incentivise completion, permits a bonus of 15% if the project finishes within two months of the moment of aid granting (or if more than one Member State supports the project); and, unusually, a penalty of 25% of the aid amount per month of delay, if the project is not completed within six months.

(viii) Investment aid granted for the production of COVID-19 relevant products, such as medicinal products and treatments, medical devices and equipment, is on similar terms to the aid for research projects, other than the aid can be up to 80% rather than 75%.

(ix) Selective aid

While generally applicable measures regarding wage subsidies (e.g. the UK government furlough measure) or tax deferrals are not treated as state aid, selective measures are. The Temporary Framework puts in place rules which permit support schemes which provide a selective advantage, for example, if they are restricted to certain sectors, regions or types of undertakings.

Contact us

To discuss any of these issues or to consider more general commercial please contact Uddalak Datta or another member of the commercial team in your local office.

Shakespeare Martineau has launched a free legal helpline, with a team of experts on hand for any queries on family and private matters. We are also offering bespoke guidance on a range of other subjects, from employment and general business matters, through to director’s responsibilities, insolvency, restructuring, funding and disputes. Available from 10am-12pm Monday to Friday, call 0800 689 4064.

General advice in relation to COVID-19 can be found on our dedicated coronavirus resource hub.

As we do not have a full picture of what the consequences of the current crisis might be, it is more important than ever to ensure that any changes made to contracts are documented in the correct format. This is not only to ensure clarity between contractual parties, but also to ensure that any changes made are enforceable and legally binding.

We would always recommend making any contractual changes to a contract via an addendum or additional agreement whereby each party clearly documents how the original contract should be changed, the date the change will take effect from and requiring a signature from each party’s authorised signatory. Read our article on executing commercial deeds and documents.

In many instances, documenting a change to a contract in writing is not just a recommendation, but a necessity.

Some contracts may determine that a change to the contact shall only be valid if it has been documented in writing (noting that email may be specifically excluded as a form of legally binding communication) and signed by the contractual parties.

It is therefore imperative that any discussions taking place to renegotiate or change contract terms are documented correctly in order to avoid arguments later in connection with enforceability, which can cost both unnecessary time and money.

Protecting your future contracts

In addition, there is usually no automatic right to require the renegotiation of contractual terms. For contracts currently being negotiated and entered into, our recommendation would be to include automatic renegotiation clauses (triggered directly as a result of consequences of coronavirus), which could provide useful contractual protection in the near or distant future for projects or contracts which are impacted.

Contact us

To discuss any of these issues or to consider more general commercial please contact Hema Singhal or another member of the commercial team in your local office.

Shakespeare Martineau has launched a free legal helpline, with a team of experts on hand for any queries on family and private matters. We are also offering bespoke guidance on a range of other subjects, from employment and general business matters, through to director’s responsibilities, insolvency, restructuring, funding and disputes. Available from 10am-12pm Monday to Friday, call 0800 689 4064.

General advice in relation to COVID-19 can be found on our dedicated coronavirus resource hub.

COVID-19 doesn’t discriminate either, as large chains, as well as smaller companies, struggle to stay afloat.

No business is immune

This was shown on 30 March, when the Carluccio’s restaurant chain and rent-to-own retailer, BrightHouse, both collapsed into administration, putting the jobs of over 4,400 employees at risk.

While both businesses had been facing hard times, it appears that the Coronavirus pandemic was the straw that broke the camel’s back.

Supporting employees

The administrators of Carluccio’s and BrightHouse will looking to preserve the businesses and the employees’ futures, working where appropriate with HMRC under the Coronavirus Job Retention Scheme.

This is a temporary scheme open to all UK employers, allowing them to claim 80 percent of their employees’ usual monthly salary, capped at £2,500 a month. Where a company is in administration, the administrators are able to access the scheme on its behalf.

Maintaining cash flow

These unprecedented times are taking their toll on the casual dining sector, with the few restaurants and cafes that are still open for business now reliant on takeaway and delivery custom.

The Government has stated its intention to get money moving to businesses, immediately recognising the imminent threat of insolvencies in many sectors. However, it remains to be seen how and when the processes for accessing funds and the payment mechanisms will actually be in place.

The Government has today acknowledged the widespread concerns in this regard and introduced further measures.  For example, banks will be prevented from asking company owners to personally guarantee loans when borrowing up to £250,000 under the Coronavirus Business Interruption Loan Scheme.  Additionally, the requirement for companies to have first tried to get a normal commercial loan elsewhere will be dropped.

At present, cash is king and, for those businesses without cash or access to credit lines, there is a need to understand their position immediately, to protect themselves against the financial damage from coronavirus.

If you have concerns about the future of your business, contact Michael Mulligan on 020 7264 4432 or speak to another member of our restructuring, recoveries & insolvency team in your local office.

You can register for one of our online webinars, or contact the events team for more details. For more general business advice in relation to coronavirus visit our dedicated resource hub.

For advice or guidance on any other legal issue, a member of our team can help – please click here to discuss.

However, schools have received conflicting messages – being closed to the majority of pupils, but not all.

With vulnerable children and children of key workers still able to attend, schools have been looking for clarity surrounding the definition of a key worker. Even some retailers, such as Pets at Home, have claimed that their staff are key workers, placing the education sector under immense pressure. The more children they have to look after, the harder it is to keep necessary social distancing measures in place.

Although further guidance has been released by the Department for Education, there are still a number of grey areas, leading to an increase in disputes. So, what can be done to settle the issue?

Raising a complaint

Normally, parents wishing to raise a complaint against a school must go through the school’s Complaints Procedure, which, ordinarily, is a three stage process.

However, these are not normal circumstances, and this method is likely to be too time and resource-intensive to be viable. We have seen reports that some parents are even resorting to sending letters from solicitors to schools demanding that they be treated as key workers.

Refusing entry

There’s an argument that Schools and headteachers do have the final say on whether a child should attend school or remain at home with their parents. However, in such a complex time, this draconian approach may not go down well. As such, clearer guidance is needed from the Government and the Department for Education about what constitutes a critical worker.

Social distancing

Children are not known for their ability to stay away from others, and with a considerable number still in school, this makes social distancing a difficult task. Should a child attending school catch COVID-19, potentially due to inadequate social distancing, there is the possibility for parents to claim against the school. This being said, it is a situation that is – hopefully – unlikely to arise.

In addition, the new Coronavirus Act 2020 does include a provision for the Secretary of State to temporarily close an educational institution if, on the advice of the Chief Medical Officer, it is a necessity.

Although guidance has been provided to schools, it has not been clear, leaving teaching bodies with a huge challenge to overcome. In order to keep teachers, children and their families safe, more information will be needed from the Government. Without it, keeping disputes to a minimum might not be possible.

Contact us

For information contact Esther Maxwell on 0121 260 0260 or speak to another member of your local employment team.

You can register for one of our online webinars, or contact the events team for more details, or for more general business advice in relation to coronavirus visit our dedicated resource hub.

For advice or guidance on any other legal issue, a member of our team can help – please click here to discuss.

It’s lengthy and detailed and we will provide further thoughts on its implications in the coming weeks, but we’ve identified some initial areas we recommend institutions start thinking about.

Providers with health care provision

There are provisions in the Act for the emergency registration of nurses and other health and social care professionals. These will allow groups of students (initially those in their last six months of training) to be admitted to the relevant registers on the basis that they are “of a type” who can reasonably be considered fit, proper and suitably experienced to fulfil this role.

Institutions may want to start thinking about what to do in respect of students where there are known concerns about fitness to practice or where fitness to practice proceedings are underway but not yet completed. This may add to an already complex scenario where staff are trying to deal with other changes from the relevant accrediting bodies around the introduction of emergency standards, modifying the split between theoretical/practical hours on courses and requirements for supervision and monitoring of students on placement.

Emergency volunteering leave

There are new provisions relating to unpaid leave for emergency volunteers which could add to staffing pressures and institutions need to plan for how they will accommodate it. Under the Act, employees are entitled to return to return to the same job on the same terms and conditions and must not be subjected a detriment by any act or failure to act on the part of the institution on the grounds that they took emergency volunteering leave.

Temporary closure and continuation orders

Potentially the most significant provisions in the Act for the higher and further education sector are those relating to temporary closure orders and temporary continuation orders. Under these, institutions may be ordered to close in whole or in part, to remain open in whole or in part, on such terms as the order specifies where the Secretary of State concludes on medical and scientific advice that this is a necessary and proportionate step. These orders will set out in detail exactly what the closure/continuation should entail and failure to comply can be enforced by a court order. The Secretary of State can authorise the OfS to discharge these functions on his behalf.

The Government’s impact assessment for this section states (rightly in our view) that orders under this section should be regarded as a force majeure event for the purposes of an institution’s contractual obligations. However, institutions should note that unless such an order clearly and unarguably within the scope of the force majeure clauses in their contracts with students, other customers, funders or suppliers, they may not have the protection of those clauses in the event an order under this section is imposed. Institutions should also review their business continuity arrangements and plans and their insurance policies to see whether any modifications are needed to address the possibility of this new type of external intervention. The impact assessment also recognises that the government may need to divert additional funding to institutions affected by these orders, but it is not clear how this will be done.

The provisions for institutions are clearly very complex and we are here to guide you through.  To discuss any of the above issues please contact Smita Jamdar, or another member of the education team in your local office.

Contact us

We are continuing to share our knowledge and expertise online. You can register for one of our learning events or contact the events team for more details or for more general business advice in relation to coronavirus visit our dedicated resource hub.

For advice or guidance on any other legal issue, a member of our team can help – please click here to discuss.

All the latest views and insights on COVID-19 (coronavirus)

This is no different for the land and planning industry with landowners, developers and strategic land directors looking to keep our projects moving with business as usual as it can be in an unusual world.

Having worked for Melton Borough Council in 2008, when our office was destroyed by fire, I know first-hand how local authorities respond to emergencies: they implement emergency planning processes and business continuity plans. Resources are redeployed to meet the immediate priority needs of the public.

The current situation will see councils quite rightly focusing on the needs of the most vulnerable members of our communities and trying to find a way to deliver services from the homes of their officers will be a competing priority.

What’s been the impact of coronavirus on planning so far?

In addition to the redistribution of staff support, home working and social distancing has caused a number of issues for local authorities and planning committees.

The Government’s Chief Planner has written to local authority Chief Planning Officers to call for pragmatism and practicality and a number of councils are doing sterling work to deliver their local planning authority business without seemingly missing a beat.

While many of the larger councils are agile, some are affected by a lack of technology and staff are unable to set up home working. A number of local planning authorities have signalled delays to local plans or phone calls and emails go unanswered. If we are fortunate enough to get an audience with our local authority planning teams, it is imperative that we make the most of the opportunity.

The typical age profile of committee members also makes a large number highly vulnerable to the virus and thus are self-isolating. Stories are emerging of planning committees being cancelled or run with the minimum number required to be quorate. For some councils the recent lockdown has also taken in-person meetings off the table too.

New legislation for virtual committee meetings is promised. This and a concerted push towards the technology for virtual officer meetings will be needed to recover and maintain progress. The early signs are that some councils have moved swiftly to meet this challenge and while nobody wishes to supplant the priority of looking after the vulnerable we might expect to see more local planning authorities tackling these challenges in the days and weeks to come.

What is the likely impact of coronavirus on development projects and planning applications?

In the immediate future we are likely to see local plan milestones pass without plans being published for consultation or committee decisions being made. For those projects at the planning application stage we are also likely to start seeing an increase in ‘extension of time’ requests as it becomes difficult for councils to meet their targets. Together with reduced contact from local planning authorities this might be an uncertain and frustrating time for planning projects.

What can I do to keep my planning proposal moving during UK lockdown?

The likelihood of long or protracted negotiations is slim. Now, more than ever, it’s crucial that we have positive, efficient and effective relationships with local authority planning teams and do everything we can to support them towards delivering their service and streamline the application process.

  1. Attention to detail

Now is the time to get our projects in good health with clear reports that encourage straight forward discussion and processing. This could make the difference between a smooth and swift process and a major delay.

  1. Be clear on the red-lines

In a world where negotiation likely has fewer phases, it is important to be clear about the will and will nots. To-ing and fro-ing on negotiations is now a luxury projects can ill-afford.

  1. Make quick decisions

Time with the local authority planning teams will be at a greater premium than ever before. If there is a chance to agree a way forward we will need to make those decisions quickly and efficiently, preferably at the point the opportunity presents itself. A strategy of regroup and rethink might mean it is a while before we have an opportunity to meet with planners again and move projects forward.

We’re all in this together, and in these unprecedented times we must recognise and respect the challenges being faced by others in order to keep us all moving forward.

For legal planning advice contact the Marrons Planning team.

All the latest views and insights on COVID-19 (coronavirus)

With pressure continuing to mount on the Government to stop all non-essential construction works, the Construction Industry Council has provided a suggested non-exhaustive list of critical construction-related activity that should continue in the interest of public safety.

Following the Government’s announcements earlier in the week, and advice from the Health Secretary that those who cannot do their jobs from home should go to work “to keep the country running”, the postion is that contractors should continue with the works until such time as they are unable or prevented from doing so.

This was echoed by the Housing Minister, Robert Jenrick, who tweeted: “Advice for the housing, construction & building maintenance industries: If you can work from home, do so. If you are working on site, you can continue to do so. But follow Public Health England guidance on social distancing.”

However, with work on Crossrail and other Transport for London (TfL) construction projects being suspended to help limit the spread of coronavirus, the next few weeks are likely to see an increase in the number of sites closing down and projects forced to be put on hold.

Taylor Wimpey announced that they will be closing all their sites “to help prevent the spread of Covid-19” amongst its workforce. We’re also finding that some contractors aren’t practically able to continue with their works and services as a result of a number of issues surrounding the coronavirus and subsequent Government advice and action, as a number of their staff can’t continue to work on site due to illness, childcare (following the Government’s announcement to close schools), self-isolation/shielding due to underlying health conditions and now the ability to obtain materials and building supplies.

Further, it’s not always possible for construction works to follow the advice of the UK Government and Public Health England in relation to social distancing when carrying out their works and services and as such they’re advising of potential delays due to force majeure.

During this difficult and unusual time, all parties on a construction project are bound to have concerns around their obligations. So, what should they be doing to protect themselves going forward?

What are a main contractor’s responsibilities?

In the absence of any instruction from the Government or Public Authority – meaning they can down tools and lock up their sites – many contractors are going to continue working and managing their workforce on site. The key issues before shutdown are going to be sourcing labour and goods whether domestically or from abroad.

Primarily, the contractor’s concerns lie with the security of the site and the progress of the works. This may involve having some difficult conversations about the potentially significant changes to the programme and what this means for the project.
At a time where finances are tight, main contractors need to be looking up and downstream to ensure that any payment processes are being taken care of. It is more important than ever to keep on top of any applications that have been made, ensuring that any necessary payment or pay less notices are issued, to minimise the risk of any ‘smash and grab’ adjudications coming their way.

Are there any clauses or provisions within their contracts that can be invoked to deal with delays arising from Covid-19?

With contracts, the devil is always in the detail, so it is important to scout out any clauses which may help in difficult times. For most employers and contractors, this means assessing whether the delay has arisen due to any factor which entitles the contractor to an extension of time to the date for completion of the works.

It is worth checking the contract for a ‘force majeure’ clause as this may excuse one or both contracting parties from temporarily performing their obligations. However, this will only apply if the disrupting event was beyond the reasonable control of the party relying on the clause at the time the contract was entered into. The wording of the provision is key, however, so must be carefully checked.

Sometimes, ‘epidemics’ or ‘civil emergencies’ are explicitly mentioned in force majeure provisions, but they can also be more general. If this is the case, then employers and contractors must assess whether the clause covers an event such as the coronavirus outbreak or any government restrictions it has triggered.

Parties should also keep in mind that – on the whole – a force majeure provision can only be invoked if the situation has entirely prevented them from performing contractual obligations (on a temporary basis), not just made them more difficult or costly to undertake. Should this be the case, relying on the clause could entitle the contractor to an extension of time, meaning they wouldn’t be penalised or have to pay an employer for each week’s delay on the completion of the project.

What happens if works are put on hold?

Contractors can be cautiously optimistic at this time, regarding their ability to recoup their loss of time. However, with any delay to a project, there are two aspects: the first relating to time (sometimes known as a Relevant Event) and the second, relating to loss and expense (sometimes known as a Relevant Matter).

Should a project be placed on hold due to force majeure or exercise by the Government or Public Authority of powers which affect the execution of the works, whilst the terms of the contract will need to be checked carefully, the contractor may only be entitled to an extension of time but not to loss and/or expense. This ensures that the risk of such events arising is split between the employer and the contractor, as the contractor isn’t liable for damages for delay, and the employer isn’t liable for the contractor’s additional costs.

Where contractors are looking to extend the time to complete a project, it’s essential that they put in valid notices, served in line with the terms of the contract, otherwise, they run the risk of losing their entitlement to an extension of time.

Where does the responsibility lie for payment support?

As explained briefly above, while force majeure or exercise by the Government or Public Authority of its powers, within the context of the contract may confirm the Relevant Event, entitling a contractor to an extension of time, the contractor won’t be compensated for loss and expense. As a consequence, main contractors may be in financial difficulty when having to swallow their own costs, unless they are able to recoup or defer costs through a claim on their own insurance policies or government funding packages.

In an ideal world, the contracts between employers and main contractors will work in parallel with main contractors and subcontractors. With so much uncertainty and a lack of labour and materials, subcontractors are also going to be looking up the chain for an extension of time – it is sensible for all parties to seek to adopt a consistent and reasonable in their approach to the issues delay bring.

Where all stakeholders are concerned, taking an overly aggressive or legal approach to a sensitive situation is unlikely to work. Maintaining an open channel of communication, both with the subcontractor supply chain and employer, is essential going forward.

Can an employer / main contractor terminate the contract?

If a construction site is shut for more than the agreed period in the contract and the project is on the road to nowhere, then (subject to what the terms of the contract actually say) it is possible if not likely that either party could serve a notice giving the other party notice to terminate the employment of the contractor. However, parties should err on the side of caution, as serving no