Covid-19


RETURNING TO OFFICE WORKING AND COVID-19 RISK ASSESSMENT


We have recently drafted an article on returning to office working and how to conduct the mandatory COVID-19 risk assessment (with a useful risk assessment template) for the Law Society’s Law Management Section.

Lockdown easing and what next for high street firms


Covid-19 – useful Tips for Conveyancing firms


Our Conveyancing and Wills & Probate specialist, Lorraine Richardson, has recorded a short video to provide some very useful tips for Conveyancing firms.  The video covers the following areas:

  • Misleading media coverage
  • Getting your house in order
  • Standard letters and reports
  • Training
  • Preparing for when normal market conditions resume


Business Continuity during the Coronavirus Webinar


Recorded Webinar and Webinar Slides

In March and April, we held webinars on Business Continuity During the Coronavirus.  The webinar provides an overview of the guidance & how it affects law firms and things to consider relating to:

  • Whether to close the office
  • Home working
  • Supporting existing clients
  • Staff Furloughs
  • Suggested FREE software
  • Financial support
  • Business Continuity Plans

To view our recorded webinar or to download our slides from the webinar, please click on the relevant link below:

Webinar Slides


Webinar FAqs


Index


Documents

Q. Which documents should we draft?

A. It will be up to each firm to determine what is required but, by way of an example of matters you may wish to consider, whave prepared the following documents for our Retainer clients: 

  • Furlough Leave Agreement 
  • Covid19 Home Working Policy and Risk Assessment Procedures
  • Home Working Risk Assessment Checklist
  • Catastrophic Event Protocol
  • Catastrophic Event Plan
  • Open for Business Notice for Office Door
  • Open for Business Statement for website and/or email

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Case Files

Q. What do you recommend for DX – are people redirecting this also to a senior solicitor? Will the LAA put sending files back via DX on pause?

A. It may be worthwhile considering with your DX provider whether there is a redirection service. Postal redirection is also worth considering.

The LAA has already suggested that some claims should no longer be sent by post or DX as so many LAA staff members are homeworking.

Clinical negligence applications, including applications to amend older Corporate Information System (CIS) certificates and pre-Legal Aid Sentencing and Punishment of Offenders Act certificates, should no longer be posted or sent by DX but sent instead by email to ContactECC@Justice.gov.uk.

Escape Case claims are also being accepted electronically. The LAA will assess your Escape Case claims with the submission of the following details only:

• Completed EC Claim 1 form and case summary
• Controlled Work Application form (CW1/CW2)
• Means assessment evidence
• Disbursement vouchers
• Running record of costs/cost ledger
• Any other information/documents you feel are relevant for the assessor to consider that can be scanned and sent electronically (for example expert reports, skeleton arguments, witness statements). Please note the additional information aspect is directional.

Please submit each claim via email to mhu-ec@justice.gov.uk.

 

Q. Do you have any recommendations for how to store things safely and respecting confidentiality if we cannot pay for a locked cabinet for anyone? Would keeping in a separate room like a study be acceptable or keeping in a non-locked box with a lid (cheaper) away from the main living area?

A. The first thing to do is risk assess the particular circumstances for an individual staff member. Keeping files in a cardboard box under the table in a house where the lawyer lives with her partner only (and where they are at home almost constantly because of the lock-down) presents a relatively low risk. The same solution where your caseworker lives in a flat shared with 3 non-lawyer non-family members may present an entirely different level of risk. Obviously keeping files in a locked cabinet or office is the best option. If this isn’t available, then putting them somewhere safe and away from prying eyes (and sticky fingers) when not in use is the next best option. Remember always that if there is a serious breach of confidentiality then the ICO (and SRA) will ask you what steps you took to reasonably secure the data given the circumstances – you need to show that you considered the issues and came up with a reasonable and workable solution.

 

Q. What to do where a file transfer request comes through when we do not have access to files in storage? What length of time would be reasonable for file transfer?

A. This depends entirely on the urgency of the matter. If there is urgency (a deadline or limitation period) then you should take steps to expedite obtaining the file (but, of course, the file storage company may add to delay if they are on lock-down). If it is non-urgent then the time to provide the file can be longer. The issue is to consider, on a case by case basis, whether there is urgency and what is reasonable remembering not to put the client at unnecessary risk (or your staff at unnecessary risk).

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Self-employment and companies

Q. What is the Coronavirus (COVID-19) Self-employment Income Support Scheme?

A. You may be eligible to claim under this scheme if you:

  • are self-employed
  • submitted an Income Tax Self-Assessment tax return for the tax year 2018-19
  • continued to trade in 2019-20 and intend to keep trading in 2020-21
  • carry on a trade which has been adversely affected by COVID-19
  • have average self-employed trading profits of no more than £50,000 and at least equal to your non-trading income

This sceme will not however apply to company owners who pay themselves a dividend or a wage through a PSC.

If you are eligible and have not yet applied for first grant under the scheme, you have until 13 July 2020 to do so.  The claim would be for a taxable grant worth 80 per cent of your average monthly trading profits, paid out in a single instalment covering three months’ worth of profit, and capped at £7,500 in total.

The scheme is ongoing after 13 July 2020 and eligible individuals may claim a second (and final grant) worth 70% of your average monthly trading profits, paid out in a single instalment covering three months’ worth of profit, and capped at £6,570 in total.  You don’t have to have claimed the first grant in order to be eligible for the second but if you are eligible for both then you are advised to claim.   Applications for the second grant will open in August 2020.

For further information, please see: https://www.gov.uk/guidance/claim-a-grant-through-the-coronavirus-covid-19-self-employment-income-support-scheme

 

Q. I thought that the government guidance specified that directors of limited companies could not benefit from the new scheme for self-employed?

A. Some self-employed people whose profits fall below the £50,000 annual threshold may be eligible to apply for support under the Coronavirus (COVID-19) Self-employment Income Support Scheme. This scheme will not however apply to company owners who pay themselves a dividend or a wage through a PSC.

 

Q. Can you confirm that there is no direct help for company directors (in terms of personal income – besides the impractical Job Retention scheme) because they take dividends as opposed to the ‘self-employed’, even though company directors submit tax returns and receive a SA302 like a ‘regular’ self-employed person?

If yes, do companies then have to then follow the ‘help’ available i.e. business backed loans from the government etc. if they are not liquid or do not have much to call on in terms of payments on account for example?

A. The job retention scheme is only based on PAYE earnings and does not apply to dividend payments. The Self-employment Income Support Scheme also does not apply to company owners who pay themselves a dividend or a wage through a PSC.

Other support to small business owners is available as follows:

• deferring VAT and Self-Assessment payments
• a Statutory Sick Pay relief package for small and medium sized businesses (SMEs)
• small business grant funding of £10,000 for all business in receipt of small business rate relief or rural rate relief
• the Coronavirus Business Interruption Loan Scheme offering loans of up to £5 million for SMEs through the British Business Bank
• a new lending facility from the Bank of England to help support liquidity among larger firms, helping them bridge coronavirus disruption to their cash flows through loans
• the HMRC Time To Pay Scheme

See: https://www.gov.uk/government/publications/guidance-to-employers-and-businesses-about-covid-19/covid-19-support-for-businesses

and https://www.businesssupport.gov.uk/coronavirus-business-support/

 

Q. I am Managing Director/Owner/Only Solicitor – 75% shares. My Fiancée works with me and is the Practice Manager with 25% Shares and gets about £1,000. Both Self-Employed – Can we both claim furlough?

A. The job retention scheme is only based on PAYE earnings and does not apply to dividend payments. A director of a company may be paid a salary through PAYE, but this may only be a nominal amount each month for NICS purposes with other payments made as dividends.

In any case, a firm must consider whether its directors should be furloughed as they may be essential to the running of the business.

Some self-employed people whose profits fall below the £50,000 annual threshold may be eligible to apply for support under the Coronavirus (COVID-19) Self-employment Income Support Scheme. This scheme will not however apply to company owners who pay themselves a dividend or a wage through a PSC.

 

Q. My bank is asking me to apply for an overdraft first and only consider COVID 19 loan if I don’t qualify. Is this proper?

A. We cannot give any advice on whether it would be more appropriate to apply for an overdraft or apply for a loan under the Coronavirus Business Interruption Loan Scheme. It will depend on the firm’s particular circumstances. If you are unhappy or unsure about the advice given by a bank, you may be able to raise this with the Financial Ombudsman.

 

Q. Many criminal defence solicitors are self-employed so would they have to do no work at all to qualify for the self-employed payment? Any idea on how would that impact on duty solicitors requirements? Presumably the LAA would take a view? The firm I am consultant with has some freelancers earning above £50k and some less. There is hardly any work at all at present. It might make more sense if those of us who do not qualify for the SE payment were to cover all the duties and do all of what work there is.

A. All firms will have to make some difficult decisions as there simply may not be enough work for all current employees or consultants. Decisions about sharing what work there is will have to be made by the firm’s managers.

The LAA has confirmed that firms and duty solicitors will not be penalised under the Contract for being unable to meet their contractual requirements as regards to duty solicitor provisions. The impact of coronavirus (COVID-19) will doubtless have an impact on the operation of and activity at courts and police stations, as well as duty solicitors personally. The LAA guidance states (as at 2 April) that “where duty solicitors are unable to meet the requirements of the contract, you should document the reasons why. In such circumstances [the LAA] will not take any contract action.” Providers are able to swap slots with other providers on the scheme who are unaffected and to swap slots with those in neighbouring schemes. See: https://www.gov.uk/guidance/coronavirus-covid-19-legal-aid-agency-contingency-response

Some employers may be able to consider agreeing a period of furlough leave with employed duty solicitors if there is insufficient duty and/or other work for them.

Some self-employed workers whose trading profits fall below the £50,000 annual threshold may be eligible to apply for support under the Coronavirus (COVID-19) Self-employment Income Support Scheme. This scheme will not however apply to those that pay themselves a dividend or a wage through a PSC. There are conditions which apply to be eligible for the scheme so, if this may be applicable to you, please review the government’s guidance: https://www.gov.uk/guidance/claim-a-grant-through-the-coronavirus-covid-19-self-employment-income-support-scheme

As at 2 April, there is no guidance on when this scheme will commence. HMRC will contact those who it believes are eligible for the scheme and invite them to apply online. It is anticipated that payments under this scheme will not be made for a while (some have estimated that payments may not be made until June) and so this may affect someone’s cashflow in the interim period.

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Business Rates £10,000 Grant

Q. If you receive SBRR on one unit but pay a nominal amount for another (say you have two rooms in a business centre), will you still be eligible for the £10k grant?

A. You will be eligible if:

1. Your business is based in England* AND
2. In receipt of small business rate relief or rural rate relief as of 11 March AND
3. You are a business that occupies property

If you are eligible and in receipt of either Small Business Rates Relief (SBRR) or Rural Rates Relief (RRR) you should be eligible for a payment of £10,000. The Local Authority will contact you if you are eligible.

 

Q. I am paying Business Rates within my rent. I have a licence to be in the offices. Am I eligible for the £10,000 Grant?

A. Only the person who according to the billing authority’s records was the ratepayer in respect of the property on the 11 March 2020 will receive the grant. If your landlord is the ratepayer and you merely pay a proportion of the rates as part of your rental agreement, then you are not eligible.

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Job Retention Scheme & Employees

Q. How is the Coronavirus Job Retention Scheme changing?

A. Importantly there is a cut-off date of 10 June 2020 (next Tuesday) to furlough an employee who hasn’t previously been furloughed but who is eligible for the scheme.  The reason being that the scheme will be closed to new entrants after 30 June 2020.  From 1 July, you will only be able to furlough employees that they have furloughed for a full 3 week period prior to 30 June.  So if you are pondering putting an additional employee on furlough, you need to make a confirmed decision as soon as possible.

Any claims to be made under the current scheme (i.e. claims for the period up to 30 June 2020) must be made by 31 July 2020.

Changes to CJRS rules:

From 1 July 2020, the scheme rules change and are different for each successive month up the end of October when the scheme is due to close entirely.

From July, claim periods will no longer be able to overlap calendar months and the number of employees you can claim for in any claim period cannot exceed the maximum number you have claimed for under any previous claim under the current CJRS.

From 1 July 2020 :

  • you may be able to change the working patterns of furloughed employees and allow them to work part time.  This only applies to employees furloughed who are already on furlough as at 1 July and have been furloughed for a minimum of 3 weeks prior to 30 June.
  • you will be permitted to furlough employees for only part of their working week.  When claiming the CJRS grant for furloughed hours, you will need to report and claim for a minimum period of a week, for grants to be calculated accurately across working patterns. Further guidance on flexible furloughing and how employers should calculate claims is due to be published by the government on 12 June.
  • There is no change to the furlough claim for those who you still want to be on full time furlough.  For the month of July, you may continue to claim the lower of 80% of wages or £2,500 per month as well as claim employer NICs and minimum pension contributions (this changes though from 1 August onwards, see below).

From 1 August 2020:

  • you can claim the lower of 80% of wages or £2,500 per month.
  • You will no longer be able to claim employer NICs and minimum pension contributions.

From 1 September 2020:

  • you can claim 70% of wages up to a cap of £2,187.50 per month.
  • You will have to pay 10% of wages to make up the minimum 80% total you need to pay staff up to a cap of £2,500 (you can choose to top up the payment as before).
  • You will not be able to claim employer’s NICs and minimum pension contributions.

From 1 October 2020:

  • you can claim 60% of wages up to a cap of £1,875 per month.
  • You will have to pay 20% of wages to make up the minimum 80% total up to a cap of £2,500 (you can choose to top up the payment as before).
  • You will not be able to claim employer’s NICs and minimum pension contributions.

The scheme is due to end on 31 October 2020.

There is a useful government factsheet which provides more information: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/888764/Factsheet_for_SEISS_and_CJRS_schemes.pdf

 

Q. We have a staff member who is due to go into hospital shortly for surgery. She does not yet have a date but when she has the surgery, she will be off for some time. Can we furlough her now?

A. You may need to obtain employment law advice for this precise scenario.

The general guidance from HMRC has changed on sick leave and furlough since the scheme was first announced.  The general position is that employers who want to furlough employees for business reasons and they are currently off sick, they are eligible to do so, as with other employees.  In these cases, the employee should no longer receive sick pay and would be classified as a furloughed employee.

If your employee becomes sick while furloughed (and we presume this also means going on longer term sick leave part way through their furlough leave), it is up to the employer to decide whether to move the employee onto SSP or to keep them on furlough, at their furloughed rate.

Employers are entitled to furlough employees who are currently being shielded or currently on long-term sick leave. It is up to employers to decide whether to furlough these employees.  You cannot of course claim both SSP and the furlough scheme grant for these employees at the same time.

The amount to pay may depend on whether the firm is topping up their salary to above the furloughed rate.  If a furloughed employee who becomes sick is moved onto SSP, employers can no longer claim for the furloughed salary.  SSP is likely to be lower than furlough pay and so an employee will have no incentive to declare themselves sick.

If the firm provides enhanced company sick pay in its contracts of employment, then this should be considered. Employers will need to decide what to do and it may be preferable to agree that company sick pay is suspended.

Employers are required to pay SSP themselves, although may qualify for a rebate for up to 2 weeks of SSP.  If employers keep the sick furloughed employee on the furloughed rate, they remain eligible to claim for these costs through the furloughed scheme.

Note however that the last date for furloughing a new member of staff will effectively be 10 June 2020.

 

Q. What do we do about new employees due to start? Can they be furloughed?

A. Furloughed employees must have been on your PAYE payroll on 19 March 2020 (that is you must have notified HMRC through an RTI submission notifying payment in respect of that employee on or before 19 March 2020) so the scheme will not cover newer employees who were not on your payroll by that date.

Employees on unpaid leave are not eligible unless they were placed on unpaid leave after 19 March 2020.

The scheme does cover employees who were made redundant since 19 March 2020, but you need to rehire them.

 

Q. Can Trainee Solicitors be Furloughed? If I was to put a Trainee Solicitor on Furlough leave, would this mean their training contract qualification date would be extended depending on how long the Furlough leave is in place for?

A. Yes, trainee solicitors are employees and can be furloughed. There are obviously some issues regarding their training contract but the SRA has produced a Q&A to explain its approach to education and training, for areas such as the QLD, LPC, Professional Skills Course and period of recognised training:

https://www.sra.org.uk/sra/news/coronavirus-questions-answers/

The employer may need to extend the training contract by the length of time the trainee is on leave.  A training contract is not less than 2 years, but it can be extended for illness and other leave. The Q&A suggests that the employer needs to inform the SRA of the end date but this wouldn’t be known yet so the firm may need to wait until the furlough has ended and then they can plan the remainder of the training contract and advise the SRA accordingly.

 

Q. Any idea how we treat those whose fixed term contract expires during furlough. We have some paralegals who are furloughed whose contracts expire and in the current climate it is hard to know whether we would be extending contracts.

A. Employees on fixed term contracts can be furloughed. Their contracts can be renewed or extended during the furlough period without breaking the terms of the scheme. Where a fixed term employee’s contract ends because it is not extended or renewed you will no longer be able claim grant for them.

 

Q. We have a staff on Tier 5 internship. His training started on 1 March 2020 for 1 year. If we furlough him, will that affect his Visa and if we don’t, do we have to continue to train him using online tools?

Q. What would be implications on Tier 2 general employees of employment being furloughed?

A. The latest information from the government confirms that individuals with an outstanding in-country application under Tier 2 or 5 can be furloughed.

https://www.gov.uk/guidance/coronavirus-covid-19-advice-for-tier-2-4-and-5-sponsors#if-you-cannot-pay-the-salaries-of-sponsored-employees-because-youve-temporarily-reduced-or-ceased-trading

This provides confirmation that you can temporarily reduce the pay of your sponsored employees to 80% of their salary or £2,500 per month, whichever is the lower.

Any reductions must be part of a company-wide policy to avoid redundancies and in which all workers are treated the same.

These reductions must be temporary, and the employee’s pay must return to at least previous levels once these arrangements have ended.

 

Q. If transfer of employment occurs after 28 Feb under TUPE regulations, will the job retention scheme still apply to those employees?

A. A new employer is eligible to claim under the scheme in respect of the employees of a previous business transferred after 19 March 2020 if either the TUPE or PAYE business succession rules apply to the change in ownership.

 

Q. If we Furlough someone as of 1st April do the three months start as of 1st April or is it 3 months since the government announced the scheme – if so, what is the end date currently?

A. The scheme is effective from 1 March 2020 (it was backdated so as to apply from then). The end date has been extended to 31 October 2020.

The minimum period for which an employee can be furloughed is three weeks.

Employers can only submit one claim every three weeks.

Claims can be backdated to any date from 1 March onwards, but only where the employees concerned have not been carrying out any work for you in the interim period.

 

Q. What is the position on furlough? Is there a risk they will say that as they have designated us as key workers we cannot furlough?

A. It is up to the firm to decide who can be furloughed. The guidance suggests who could be deemed a key worker, but it must be for the firm to determine what their business needs are and who is critical to that particular business.

An employee cannot demand to be furloughed. Some employees will be deemed essential to the ongoing running of the business and to ensure that services can be provided to clients. Some roles are less essential, or their work may not easily be conducted from home. Employers will have to make those difficult decisions.

An employer should look to apply fair and reasonable selection criteria just as if it were conducting a redundancy exercise.  In the present circumstances, it is hoped that all parties recognise that firms are having to implement furloughing very quickly to safeguard as many jobs as possible for the long term and to keep the business going.

All firms should seek to consult with employees if this is practicable and any firms who are looking to furlough 20 or more employees will probably find that the collective consultation rules apply. These rules provide that where possible you should consult with the unions or, if none, elected representatives and file an HR1 form. https://www.gov.uk/government/publications/redundancy-payments-form-hr1-advance-notification-of-redundancies

Assuming there is no recognised union and no elected representatives then you can probably take a view that these are extraordinary circumstances and instead suggest ‘special circumstances’ arise. You could then simply consult with employees directly, but you may take the view that the form HR1 should still be filed. If this applies, you may want to seek employment law advice.

 

Q. What happens if we furlough a full-time worker now but when they return it is either not full time or alternatively a decision is taken to go down redundancy route?

A. An employee’s employment rights are unaffected. Normal employment law applies if a firm seeks to terminate a contract of employment or make someone redundant after the period of furlough expires.

 

Q. Most of our staff are now working from home but now we want to furlough some staff. Do we need to retrieve computers, etc. from staff homes to show that they are not working?

A. There probably isn’t any need to do this. Furloughed staff will need to be fully aware that they cannot undertake any work for you. You may however still want to be able to get hold of your staff and keep in touch with them (especially about any extensions to furlough). Some staff may need to be taken off furlough leave (or the furlough leave may not be extended) and resume home working so it makes sense that they continue to have the means to do that as required.

 

Q. For furlough staff what is the minimum period?

A. The minimum period is three weeks.

 

Q. Please can you confirm whether staff have to be paid in the usual way and then get refunded under the scheme OR whether you can make the claim and then use that money to pay the staff – rather than reimbursing your own funds? From a cash flow perspective this would be preferred.

A. Until the end of July 2020, the scheme allows a firm to ‘re-claim’ 80% of the wages of furloughed staff (up to £2,500 per furloughed employee per month). The scheme itself does not prevent payments being delayed.

For an employer to claim the grant it has to pay its staff and so you will continue to run your payroll as normal. Unless agreed otherwise with the employee(s), you would pay your furloughed employees on their standard day of pay – this would be either the 80% (or up to £2500 as applicable) or their normal pay (of which you are effectively topping up the furlough pay to that which you are contractually obliged to pay). Standard employment law applies and the terms of the employment contract will stand unless you agree with the employee to alter the terms during this period (such as reducing pay to the amount of the furlough claim but not less or paying on a later date).

If you wanted to delay making payments to staff until HMRC had made these repayments, then this could be dealt with through agreement with the furloughed employees. However, a firm should consider what affect this may have on employees.

From 1 August 2020, the amounts you can claim are different, see: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/888764/Factsheet_for_SEISS_and_CJRS_schemes.pdf

 

Q. Do we have to pay full salary to furloughed employees? Our contract is for full salary. We will have everyone wanting to take furlough if that is the case!

A. Most Contracts of employment used by law firms will unlikely have a ‘lay-off’ clause that allows you to lay off staff or reduce salary and so some form of consultation and agreement will need to be reached with staff for temporary amendments to their contracts of employments.

The scheme does not mean that usual employment law rules do not apply.

If you need to reduce their pay to the furloughed amount then you can attempt to agree with your staff that their pay for the period of furlough will be reduced to 80% of their standard pay (up to the cap of £2,500). In the present circumstances, one would hope that most, if not all, employees will accept that going on furlough and accepting the pay cut and with the hope that their job can be preserved for the long term is preferable to being made redundant.

You must write to the employees affected and should agree the amendment to the terms in their contract of employment.

The official guidance states:

“Employers should discuss with their staff and make any changes to the employment contract by agreement. When employers are making decisions in relation to the process, including deciding who to offer furlough to, equality and discrimination laws will apply in the usual way.

To be eligible for the subsidy employers should write to their employee confirming that they have been furloughed and keep a record of this communication.”

 

Q. Can staff that are paid monthly through PAYE be furloughed halfway through the month, i.e. will the government pay 80% of the second half of the month?

A. You can make a claim every three weeks and it does not suggest that a claim has to cover the whole month and in fact the scheme has been designed to allow for flexibility so that furloughed staff can be brought back to work if required.

As part of the claim you would confirm the claim period (start and end date) and amount claimed (per the minimum length of furloughing of 3 weeks).

The guidance states that you should make your claim in accordance with actual payroll amounts at the point at which you run your payroll or in advance of an imminent payroll.

 

Q. Will the furloughed staff still accrue holiday over the 3 months whilst being off?

Q. If a staff member is furloughed – and has holiday time booked during that furlough period, what happens to the holiday – does it get cancelled and carried over, or do they come out of furlough for that period?

A. Furloughed workers statutory minimum holiday entitlement of 5.6 weeks per year will continue to accrue while they are furloughed. The exact amount will vary depending on how much leave the employee has already taken.

You can seek to vary the employment contract and ask for employees to agree to any contractual (as opposed to statutory) holiday not to accrue during furlough.

However, you may be content that workers can now carry-over up to four weeks’ holiday into the next two holiday years.

It may be that some employers may alternatively insist employees take holiday during the furlough period. In that case, the employers would then have to pay any holiday pay in full but could claim for the 80% grant towards this. You should consider though whether compelling employees to use their holiday entitlement when they can’t really leave their house would be a popular decision with your staff.

 

Q. Are we able to keep in touch with staff who are Furloughed; to check if they are safe and well and also to update them on any information. Is there any guidance on this?

A. There is no restriction on contacting furloughed staff and there are various reasons why this should be encouraged. The only caveat is that furloughed employee cannot provide services to or generate revenue for, or on behalf of your firm.

 

Q. Does the furlough period continue automatically until the scheme ends / we require staff to return to work etc or do we need to renew after each month?

A. The furlough period would not automatically continue but the firm may extend it in line with any government extension. This would be something to document in your agreement letter.

You could put someone on furlough until the end of June (in line with the current end date of the scheme) but you could indicate that you may end the furlough sooner if there is a need. Similarly, you can make provision for extending the furlough period. It would probably be essential to write to the employee before the end of the current furlough leave and give them notice if it is being extended or not.

 

Q. How will the Government financial support be put in place?  Are administrative processes and procedures in place to ensure that payments are received the end of each month?

A. The online portal is now available and has been from 20 April 2020.  Employers should pay their staff at the normal payroll dates (unless they agree a later date with the employees – remembering that this is another contractual term you are amending in their contract and amendment of this term would be more difficult for employees to cope with).

The scheme is designed to reimburse the employer for payments already made. If this causes cashflow issues, then the employer may need to look to loan facilities.

 

Q. Do “wage costs” include employer pension contributions.

Q. Does the government maximum include NI and pension contributions.

A. All employers remain liable for associated Employer National Insurance contributions and minimum automatic enrolment employer pension contributions on behalf of their furloughed employees. These should be paid by the employer as normal, but you can claim the costs back as part of the scheme up until end July 2020 (employers need to pay these costs after 31 July 2020).

The claim will be for the NICS and minimum pension contributions based on the 80% of the salary (or cap of £2500).

Therefore, this may not cover all of the payments to be made by the employer including:

  • additional National Insurance or pension contributions an employer makes because they chose to top up the employee’s salary above the 80% (or above £2500 as applicable)
  • any pension contributions made that are above the mandatory auto enrolment employer contribution

Wage costs are confirmed as follows:

Full time and part time employees
For full time and part time salaried employees, the employee’s actual salary before tax, as of 28 February should be used to calculate the 80%. Fees, commission and bonuses should not be included.

Employees whose pay varies
If the employee has been employed (or engaged by an employment business) for a full twelve months prior to the claim, you can claim for the higher of either:
     o the same month’s earning from the previous year
     o average monthly earnings from the 2019-20 tax year
If the employee has been employed for less than a year, you can claim for an average of their monthly earnings since they started work.
If the employee only started in February 2020, use a pro-rata for their earnings so far to claim.

You can claim a grant from HMRC to cover both the wages for a furloughed employee (as set out above) plus the associated Employer National Insurance contributions and minimum automatic enrolment employer pension contributions on paying those wages.

 

Q. Do you know if it’s possible to furlough employees but still ask them to work maybe 1 or 2 days a week to do urgent work, such as our cost draftsman, and pay them for the days they work?

A. for the current scheme (until end June 2020), if an employee is furloughed then they can take part in volunteer work or training but only long as it does not provide services to or generate revenue for, or on behalf of your organisation. It is difficult to see what work could be deemed to be non-profit making. You certainly cannot pay the staff for any work in this period. If the staff member is required to work, they should not be furloughed as the scheme is designed to cover instances where the firm cannot offer the employee work and would otherwise be considering redundancy.

If an employee is working, but on reduced hours, or for reduced pay, they will not be eligible for the current scheme and you will have to continue paying the employee through your payroll and pay their salary subject to the terms of the employment contract you agreed.

The scheme rules change from July 2020 and this will permit employers to furlough employees for only part of their working week.  When claiming the CJRS grant for furloughed hours, you will need to report and claim for a minimum period of a week, for grants to be calculated accurately across working patterns.

 

Q. Is the £2,500 you get 80% of gross salary or net salary? For example, if it’s gross then it would be a salary of £30,000 a year which most duty solicitors get more than.

A. The grant covers the lower of 80% of an employee’s wage or £2,500 plus the NICs and the minimum auto enrolment pension contributions (based on that same 80% or £2,500 figure). The grant is therefore for a maximum claim of £2,500 gross per employee (plus NICs and auto enrolment) – the Government has confirmed this equates to a salary of £30,000. This may be significantly less than an employee’s actual salary. There is no size limit on the employer’s eligibility, so the same scheme is potentially applicable to all employers. The wage rate is capped at the same amount of £2,500.

The grant may not reimburse an employee’s full salary. It will be up to the employer to agree with the employee whether they will still pay the full salary or only the amount which will be reimbursed.

 

Q. What is the procedure of asking people to be furloughed? Can it be backdated?

A. The scheme is effective from 1 March 2020. The government’s decision to backdate the scheme to 1 March was designed to cover employees who had already been made redundant since 28 February 2020, but they need to be rehired by their employer to qualify for the scheme.

The grant will start on the day the employee is placed on furlough and the scheme guidance does state that this can be backdated to 1 March but of course they can only be backdated for staff who have not been working for you at all in that period.

 

Q. What about when we tell somebody that they are to be furloughed from a date in March and they say that during that time they made a phone call to a client?

You cannot furlough someone until they stop work for you. Furthermore, you cannot simply place someone on furlough leave. This has to be with their agreement and so an employer would need to have full knowledge of what work the employee has been doing. If these discussions are only happening now then the furlough leave will realistically probably only be effective from the current date onwards, in which case the present amount of furlough leave will be for two – three months, as applicable, to 30 June 2020 (although this could be extended).

An employer can ask an employee to go on furlough and then propose what this means for their individual contract of employment. However, an employee has the right to refuse to accept to go on furlough leave although they will have to accept that they may well be at risk of redundancy or termination of employment, depending on the circumstances of the employer.

 

Q. If my furloughed date is 18th March and I worked until that day should I be paid fully for the first half of the month then at 80% from the 19th?

A. Without knowing the background to this matter, it is difficult to advise. An employee should get their standard pay as per their employment contract for the time before it was agreed the furlough leave was to take effect. Whether the employee gets 80% or more after that (i.e. during the period of furlough) is something that must be agreed with the employer. The default position is that the employee would be paid what their contract of employment provides (normally this would be 100%) but this may then be reduced by agreement although, in some limited cases, an employment contract may have a clause in it which allows the employer to amend the contract and reduce hours and pay without the employee’s agreement being required. In many cases, employers will seek to agree to pay the reduced 80% as the alternative would be redundancy. This is entirely a matter for an individual employer and employee though and if there are concerns or this cannot be agreed, then normal employment laws apply and either party may need to seek employment law advice.

 

Q. I started a job after the 28th February and my new employer wants to furlough me but is unable to do so.  I was still employed by previous employer as at the 28 February so can they furlough me?

A. If the new job was started by 19 March, the new employer may be able to claim for the employee that was employed as of 19 March 2020 and was on their PAYE payroll on or before that date; this means that the new employer will have made an RTI submission notifying HMRC of payment of you as an employee on or before 19 March 2020.

It is possible for the old employer to take you back and furlough you but it is entirely up to the individual company as to whether they wished to do so.

Updated guidance from HMRC confirms that employees that were employed as of 28 February 2020 and on payroll (i.e. notified to HMRC on an RTI submission on or before 28 February) and were made redundant or stopped working for an employer after that, and prior to 19 March 2020, can also qualify for the scheme if the former employer was to re-employ them and put them on furlough.

If an employee has had multiple employers over the past year, has only worked for one of them at any one time, and is being furloughed by their current employer, their former employer/s should not re-employ them, put them on furlough and claim for their wages through the scheme.

 

Q. What measures are in place to protect those working on zero hour contracts?

A. Employees on zero hour contracts are eligible to be furloughed provided that they are employees albeit on flexible contracts and are on their employer’s PAYE.

 

Q. Where an employee worked from home during a two-week period of self-isolation and a furlough was agreed during the period of self-isolation, what is the start date of the furlough?  Is it when the parties agreed or when the self-isolation period concludes? 

A. The guidance on this has changed significantly since the scheme was first promoted.

If employers want to furlough employees for business reasons and they are currently off work (due to sickness and, it is presumed this includes a period of self-isolation where they are currently entitled to SSP), they are eligible to do so, as with other employees. The start date of the furlough will be the date that agreement is made. In these cases, the employee should no longer receive sick pay from that date and would be classified as a furloughed employee and be entitled to receive an amount equivalent (or greater if agreed) to the furlough pay.

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Keeping An Office Open

Q. Staff are periodically visiting the office when needed, but we are ensuring they abide by the 2m social distancing rules and I’m staggering when staff do go in. It is only a handful of staff, but nevertheless staff are still accessing the offices. Should we be asking our cleaners to continue to visit to ensure all areas accessed by staff are cleaned thoroughly or is this not classed as essential work?

A. If it is absolutely necessary to keep the office open (because you or some of your staff are Key Workers and need to be in the office or for other reasons), then you must stay up-to-date with the Government’s latest guidance. It may very well be that visits by cleaning staff are not essential especially if the cleaning could be undertaken by those staff having to attend the office.

If you are a retainer client then please see our guidance on business interruption circulated last week.

For official guidance about office cleaning then see:

https://www.gov.uk/government/publications/covid-19-decontamination-in-non-healthcare-settings

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LAA

Q. How the LAA will be thinking about Duty solicitor requirements / Designated Accredited Representatives in Mental Health, the 14 hour and attendance requirements, with the ongoing pandemic.

A. This is what the LAA says in their guidance:

Where duty solicitors are unable to meet the requirements of the contract, you should document the reasons why. In such circumstances we will not take any contract action.

Similarly for Mental Health providers:

We understand the current situation may mean you are unable to meet the requirements of the contract regarding designated accreditation representatives, including where an individual is not able to meet the 14-hour requirement. Please document the reasons why, but we will not take any action in this situation.

The LAA has yet to comment on supervision requirements where a number of attendances / cases are required every 12 months.

 

Q. Furlough and supervisors – Have we heard anything from the LAA about how to maintain contractual requirements for supervision if staff (supervisors) are on furlough? Surely not reasonable/should not be seen as breach of contract if the idea is to prevent us making redundancies?

A. As at 27 March 2020, the LAA advise that no action will be taken but do ask that you discuss the matter with your contract manager:

We understand the current context may mean you are unable to meet the office and supervisory requirements set out in your contract, and that reasonable actions will be needed to follow wider Government advice and to maintain the well being of your staff and clients. We will not take any action in this situation.

Please consider and share with your contract manager your planned approach to:
• dealing with urgent matters
• ensuring general supervision of work, including remote supervision

Please continue to document evidence on how supervision has been applied in line with accreditation and professional standards where applicable.

 

Q. Is there likely to be any LAA relaxation of POA claims, can they be claimed earlier? Can a hardship claim be made?

A. Latest guidance from the LAA on POAs can be found at the link below. As at 27 March 2020, there is no change to the current rules for POA claims:

https://www.gov.uk/guidance/financial-relief-for-legal-aid-practitioners

 

Q. Do we need to attend police stations? Guidance given last week was we don’t need to in order to claim fees. Today I think guidance states that we do need to. Can we make employees attend?

A. The LAA updated their guidance on 27 March 2020 to advise that if a police station attendance cannot go ahead due to COVID-19 issues and all parties agree to a remote attendance, the full attendance fee can be claimed where the file is duly noted. Here is what the guidance says in full:

Providers are still required to provide advice and assistance to clients in custody suites.

Depending on local police practices and their own health concerns, you may not be able to physically attend on those clients.

Should an attendance be made by other means (phone or video), either because of a police force’s contingency arrangements or because current Government safeguarding guidelines mean you cannot physically, you can claim the Police Station Attendance Fixed Fee appropriate to the location.

A file note should be kept as to the circumstances of the arrangements, confirming both the police and the client were happy to proceed without a physical attendance.

Providers should claim as usual for the Telephone Advice Fixed Fee as appropriate, but they should not claim for Telephone Advice Fixed Fee and the Police Station Attendance Fixed Fee for the same matter. A DSCC Reference Number will also be required as normal.

 

Q. I have sent my supervision plan to my LAA CM twice and had no reply, can I take it from silence that it is acceptable?

A. No but it will be difficult for them to sanction you in the future if you have sought their approval and it hasn’t been forthcoming. You need to decide whether your plan reasonably complies with your contractual obligations.

Check out LAPG’s guidance at: https://lapg.co.uk/wp-content/uploads/LAPG-LAA-Contract-and-Covid19-Guidance-27-March-2020-V2.pdf

 

Q. How can I get on the VHCC Panel?

A. See: https://www.gov.uk/guidance/high-cost-cases-crime#vhcc-accreditation

See also the IFA which sets out what you need to attain accreditation:
https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/592377/legal-aid-information-for-applicants.pdf

This may require further guidance and you are welcome to contact us.

 

Useful Suggestions

@LAAHelpTeam / https://twitter.com/laahelpteam is really responsive.

Peer reviews are suspended by the LAA until further notice.

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Courts

Q. All of our staff are working at home apart from one partner and one admin assistant. This is largely because the court is still using paper to communicate with us and court orders have to be scanned in to files so that the electronic files that fee earners are working on are up to date and that we don’t miss deadlines – not all of our cases have been stayed. Is anything being done to persuade the court to use email?

A. All relevant representative bodies are working closely with the MoJ and Court Service to ensure that, where possible, changes and adjustments can be made.

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Training

Q. Can we claim this webinar as training?

A. The SRA allows a solicitor to determine his/her own approach to learning and any approach to learning and development is valid as long as the solicitor can demonstrate it contributes to how they remain competent to deliver a proper standard of service. Online webinars are a form of formal learning and one way a solicitor can meet his/her development needs. The webinar details should be recorded on your training and development plan.

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Working From Home

Q. Please can you clarify the point on the Risk Assessment Checklist regarding checking home insurance and mortgage provider, etc that working from home is allowed. My thoughts were under the circumstances these are not hopefully permanent measures and surely as the government is encouraging home working it is more out of necessity than choice. Do we expect all staff to contact their home insurer and their mortgage providers? Do we have to notify the Firms insurers also?

A. In answering this question, we are mindful of the ACAS guidance on homeworking. ACAS has not updated its guidance in light of the pandemic but much of the guidance is still very much applicable.

The firm’s (employer’s) property should be covered by the employer’s insurance policy but it must always be advisable for the firm to check its insurance policies. For instance, if your office is closed for the foreseeable future, does your contents policy have any special conditions or security requirements. Does it adequately cover all equipment when used away from the office.

Employees should check that there isn’t anything preventing them from working at home – for example, in their mortgage agreement, lease or insurance. Some home insurance policies, mortgages or lease agreements may prevent the insured from using the home for work related activities or limit the amount of usage.

Anyone working from home would want to see that their insurance or mortgage provider would still classify the property as residential. Generally speaking, if over 40% of the property is used for commercial purposes, it would garner a corresponding commercial mortgage rate and one would expect providers to be making additional allowances during the pandemic. So, it is unlikely to be an issue, but it is essential that staff double check the position.

The point is do not assume you are covered or that the provider is making allowances. All employees should double check their own position so as to avoid future issues.

If there are issues and an employee’s premium rises as a result, then an employer should be considering whether it will reimburse staff.

 

Q. Risk assessment requirements for home working? How? What should be covered?

A. In ordinary circumstances, a firm should conduct a form of risk assessment before any home working arrangements are implemented. However, these are anything but ordinary circumstances and all firms have had to make some very quick decisions over the last few days. It is important though that you now consider home working risks for these arrangements to be sustainable longer term.

ACAS have some very useful guidance on homeworking including a home working checklist:

https://archive.acas.org.uk/media/3905/Homeworking—a-guide-for-employers-and-employees/pdf/Homeworking-a-guide-for-employers-and-employees.pdf

https://archive.acas.org.uk/homeworking

It is important to note that the ACAS guidance was drafted before the pandemic and not all of the suggestions are feasible in the current circumstances. However, it provides a useful summary of the key risks when home working and steps a firm can take to mitigate against those risks.

Things to consider include:

• Having a suitable working area at home (thinking about Health and safety obligations)
• Has the employee been provided with a work computer and phone?
• If not, are their personal computers and phones suitable secure for work purposes?
• Do they have the necessary links; software; and logins to access all necessary work-related apps and software?
• How will the employee ensure that family members or others occupying the same home don’t have access to client files and information (or won’t access them during the relevant period)?
• Do they have sufficient broadband access (a particular issue for those living in rural locations)?
• Does the employee have access to the files and other materials that they need to do their job properly?

It would be sensible for the risk assessment to be documented.

DG Legal retainer clients have been sent a template home working policy which sets out a suggested risk assessment procedure.

As part of this, is our home working risk assessment template which has been drafted with the Coronavirus pandemic in mind and with a view to the risk assessment to be conducted remotely but as soon as possible after the homeworking has been implemented to minimise risks. The suggestion is that the employee working at home completes the checklist as well as providing information about the equipment and software currently used in order that the firm’s managers can then consider all risks and determine if additional measures need to be taken. The template includes a risk assessment table in which any identified risks can be documented, and the steps put in place to mitigate those risks. Mitigating measures could include updating software, ordering additional equipment, etc.

 

Q. Does the Homeworking Risk Assessment need to be sent to just our employees or the consultants as well, most of whom are based at home the majority of the time anyway?

A. If they are self-employed consultants then they probably should already have their own equipment, computers etc. and ample facilities to work from home. However, they will be bound to have access to confidential data which belongs to the firm and there are always risks associated with anybody working for you from outside of your office. Risk assessments should probably have already been carried out long before now for any consultants or employees working from home. However, and in any case, there are likely to be new or different risks to consider in light of Covid-19 and so our advice would be to conduct new assessments for existing home workers in any event.

The standard position is that you should conduct risk assessments prior to the working arrangement being put in place. The reality is that firms had very little warning about the government’s rules on self-isolation and had no option but to quickly install new home working arrangements for employees with very little time to cover all bases. They would have had little time to consider all the risks and put in place adequate measures. They may have thought that the arrangements may only be in place for a few weeks but that now looks unlikely. We just don’t know how long these arrangements will have to last but, to be sustainable in the longer term, it is imperative to conduct those assessments now and ensure that appropriate measures are in place.

 

Q. What is the obligation to work from home? As a criminal law practitioner, it’s very difficult to earn money from working from home. Some of our employees will say they’re working from home but would effectively do the equivalent of one or two billable hours per day. Similarly, can we ask him to complete timesheets and make the pay dependent upon that?

A. We can only really reiterate the government’s rules – see: https://www.gov.uk/coronavirus

The Government’s guidance makes clear that any person can only travel for work purposes if they cannot work from home. Therefore, if it is possible for a person to work from home, they must do that. The Government’s guidance further states that employers should take every possible step to facilitate their employees working from home, including providing suitable IT and equipment to enable remote working.

If there is insufficient work for an employee, then an employer could consider agreeing with that employee to go on furlough leave. There is nothing to say that you cannot try and agree other arrangements with your employees such as reduced hours or pay but this is all subject to employment law in the standard way and hopefully employers will continue to act reasonably at this difficult time.

If there is a concern that a home working employee is not undertaking sufficient work, then an employer may need to discuss with that employee how to improve matters. There may be various reasons why an employee may struggle including a lack of resources, struggling to get hold of clients, family commitments, etc. They may also struggle with the isolation and we would hope employers would also have regard to an employee’s well-being in these difficult times.

The employer may need to consider how to interact with staff whilst they are at home and ensure that they are continuing to be productive. There are various means to engage with staff including telephone conferences, Microsoft Teams, Zoom or other tele-conferencing systems. As part of these or other systems, there are means to monitor activity. For example, Microsoft Teams will show you when someone is active. We understand that there are other time recording apps being used by law firms such as Blip which help to monitor activity.

Employers will also want to review input on time recording and/or case management systems as they normally would do.

However, these are difficult times for everyone so, if someone is not as productive as normal, there may be many reasons for that and something an employer will have to work though carefully and reasonably.

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Useful Software

Q. Can I ask whether Zoom is GDPR and SRA compliant? I hope it is as it has been an incredible help over the last few weeks.

A. You should check out the Zoom Privacy Policy at: https://zoom.us/privacy

If you record a zoom chat then they say:

“If you attend a Zoom meeting or webinar as a participant, the host may choose to record the session, and if so, the host is responsible for obtaining consent from you. Zoom helps hosts obtain consent from meeting participants by providing visual and audio cues to alert participants of a recording. A meeting host may even turn on a pop-up notice which requires a participant to click a “continue” button to acknowledge notice of the recording. Recordings may contain personal data and may be stored in Zoom’s cloud at the request of the customer. A meeting host may choose to store a recording of a meeting on the host’s local storage device, not in Zoom’s cloud. When a host chooses to do that, Zoom does not have any control over the recording. Our customer may also request that a transcript be made of the recording stored in our cloud. The transcript, which may also contain personal data, is treated the same way as the recording by Zoom.”

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Get in touch

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