April 2021 - MLP Law

Happy Easter from MLP Law

Here at MLP Law we would like to wish everyone a Happy Easter. With restrictions starting to lift, we hope many of you get to spend the bank holiday weekend outdoors with friends and family, weather depending!

As tradition at MLP Law, we usually buy Easter eggs for all our colleagues as a thank you for all the hard work our amazing teams continue to put in. However, this year as the majority of us are continuing to work remotely due to the ongoing government guidelines, we haven’t been able to do so in our usual way, and we have decided to do something a little different. Instead, we have decided to use the money to make a donation to one of our charities of the year, SANDs.

SANDs is the leading stillbirth and neonatal death charity in the UK, and the work that they do helps to reduce the number of baby fatalities and helps ensure that anyone affected by the death of a baby receives the best possible care and support for as long as they need it. 

This amazing charity does fantastic things with all the donations they receive, and we would like to take every opportunity we can to raise money for them.

To find out more about SANDs, click here.

We hope this is just the start to a very successful fundraising year here at MLP, and we will do all we can to support our charities. Once again, we hope you have a lovely and relaxing Easter and long bank holiday weekend.

Beyond COVID: Strategies for SMEs

Welcome to our series of blogs, addressing post-lockdown issues from a legal perspective.  This week sees the first blog, from our MLP Corporate team, looking at Strategies for SMEs.

Our blogs over the coming weeks will address a full range of topics across all our services – including our corporate, employment, commercial property, private client and family departments –  as we explore various post-lockdown challenges and opportunities.

It has been a very difficult 12 months for all businesses, but perhaps none more so than SMEs (small to medium sized enterprises).  Although some sectors have been hit harder than others, many SMEs have been left struggling to survive. 

So what could the future look like post-COVID?  How can businesses plan?  We have set out below some very brief ideas for a strategy for SMEs coming out of lockdown restrictions, moving forward and hopefully, looking to thrive.

Take stock

Take an objective and honest look at your business.   What has the last 12 months meant for your business?  Where do things currently stand?  What is the position on finances, employees, trading and other key aspects of the business? 

Help

Take all the help and advice and assistance available, including government help in terms of the ongoing furlough scheme and other grants and loans and seek professional advice to assist with your plans for the business

Reassess

Reappraise your business and consider what has gone well, what has not been working and how you see your industry moving forward.  Prepare a new Business Plan, revise your targets and objectives, consider where you see the business going and what you need to do to achieve these goals

Invest

Although finances may be tight, is it a good time to invest, particularly in areas such as technology?  The last 12 months has shown a significant move towards online business and working from home, so investment in areas such as technology are likely to make good business sense

Vary

Consider if you should diversify your business, perhaps looking at similar goods or services that could be offered or a different sector that your business could expand into

Exit

Is it time to sell?  If your business is really struggling and you cannot see a way forward, or if you have decided that it is time to move on, retire, look at other opportunities or sail off into the sunset, start to look at your exit plan.  This could involve seeking a third party purchaser, getting an existing management team interested in an MBO, transferring your interests to family members, or winding up the company.  At this stage, it is important to take professional advice as to what may be the best option for you.

If you have any questions on any of the above, please get in touch with a member of the Corporate team by emailing corporate@mlplaw.co.uk or calling 0161 926 9969.

The Changing Landscape of the Workplace

Welcome to our series of blogs, addressing post-lockdown issues from a legal perspective.  This week sees the latest blog, from our MLP employment team, looking at the changing landscape of the workplace.

Our blogs over the coming weeks will address a full range of topics across all our services – including our corporate, employment, commercial property, private client and family departments –  as we explore various post-lockdown challenges and opportunities.

Over the last year, working life has changed radically.  Employers and employees have been forced to implement more flexible working patterns and adapt many aspects of the working day (or night), in response to the coronavirus pandemic and lockdowns. 

One such key change has been the increasing emphasis on working from home.  Indeed, the coronavirus pandemic and resulting lockdown culture has seen large numbers of the UK’s working population, particularly office workers, work from home.  In April 2020, 46.6% of working people did some work at home; of those, 86.0% did so as a result of the coronavirus pandemic.

Furthermore, experts say that increased homeworking during the pandemic may have reduced the negative stigma sometimes associated with men requesting less conventional, flexible working arrangements – with some employers  reporting a 66% increase in flexible working requests from men (* poll conducted by Working Families in September 2020).

The data also suggests a longer-term shift in working practices, with more employees likely to be working flexibly or remotely for at least part of their working week, even after the pandemic has ended.  So, with all that in mind, we address some of the issues that employers should consider in relation to flexible working.

Flexible Working Request

Who can make a flexible working request?

Employees with six months’ service have a statutory right, once in a year, to make a flexible working request.

What can they request?

Employees can apply to:

  • change how many hours they work, and/or
  • when that work is done, and/or
  • where that work is done – as between their home and their employer’s place of business

How should an employer respond?

An employer should consider the request in a reasonable manner and respond, in writing, within 3 months of the request being made (or a longer period, if agreed with the employee).  The employer may only refuse an application if one or more specified grounds apply:

  • the burden of additional costs
  • detrimental effect on ability to meet customer demand
  • inability to re-organise work among existing staff
  • inability to recruit additional staff
  • detrimental impact on quality
  • detrimental impact on performance
  • insufficiency of work during the periods the employee proposes to work
  • planned structural changes

Homeworking

Responding to a request to work from home

In many flexible working requests, the employee’s request is to work either all, or part, of their working week from home.  Pre-pandemic, it has been relatively easy for some employers to reject homeworking requests on one of the above grounds.  Now, however, the coronavirus pandemic has provided an extensive, and often successful, experiment in homeworking, it is likely to be more difficult for the employer to reject a request without evidence, that, for example:

• during homeworking:

◦ the needs of a customer or client have not been met, eg a complaint

◦ the quality of the employee’s work has been impaired, or

◦ productivity or performance has been reduced, or

• once the workplace has re-opened properly, the employer will not be able to re-organise tasks fairly between workplace-based staff and home-based staff (eg because workplace-based staff would have to take on the burden of mundane physical tasks).

Benefits and challenges of working from home

Yet, working from home does present an opportunity for employers.  Businesses could capitalise on some of the advantages that it offers, particularly in respect of staff morale (reducing presenteeism), improving work/life balance and productivity (no commute and fewer distractions) and reducing some of the costs associated with having many individuals in the workplace at the same time (for instance, the emergency milk run for endless cups of tea and coffee!).   It is clear that each individual’s homeworking experience will be varied, depending on many factors such as the nature of their role or their level of seniority and experience, but employers who have either already had, or invested in, effective IT systems and software and support will likely have found some benefits to the arrangement.

Whilst there are some challenging aspects of homeworking, such as employees feeling disconnected from work colleagues or having difficulty ‘switching off’ and maintaining the line between home and work, it is likely that more consideration will have to be given by employers to such requests, or at least to a hybrid arrangement, with the hope that both parties can ultimately benefit.

Policies

As ever, when significant changes are being made to normal working practices, clearly defined boundaries and expectations in relation to both the employer and employee are best outlined in a policy.  This can then be contained within a Staff Handbook or issued when such requests have been granted.

If you have any questions or concerns about the above, please get in touch with the MLP Law Employment team at employment@mlplaw.co.uk or 0161 926 9969. Please also keep an eye out on our Twitter feed @HRHeroUK and for our regular blogs on all things Employment Law and HR.

Beyond Covid – What’s next for landlords and tenants?

Welcome to our series of blogs, addressing post-lockdown issues from a legal perspective. In the latest in our series of blogs, Mark Turner (who heads the firm’s Dispute Resolution team) looks at how Covid has impacted on landlords and tenants – both commercial and residential – and what the next few months may hold as restrictions start to be lifted.

The Covid pandemic has of course impacted on all of our lives over the past 12 months, and the government has introduced emergency legislation to try to limit that impact for many of those affected.

Tenants, of both residential and commercial properties, were afforded additional protection against eviction if they found themselves struggling financially. That protection came largely at the expense of landlords, who faced with tenants who were unable to pay the rent had very little recourse to the law.

Residential tenancies

In relation to residential property, it’s not hard to see the rationale in favour of halting evictions – the last thing the government wanted at a time when it was telling people to stay at home to avoid spreading the virus was a wave of displaced people who had been evicted from their homes.

Evictions came to a complete halt during the first lockdown of 2020. In March, all existing possession proceedings were put on indefinite pause and a moratorium imposed preventing the issue of fresh proceedings.

The moratorium was lifted as the country came out of the first lockdown, but the new regulations only permitted courts to make possession orders where there had already been considerable arrears of rent before the onset of the pandemic.

Subsequent revisions to those regulations have relaxed the restrictions and the courts can now make possession order where there are at least six months’ arrears of rent, which do not have to pre-date the pandemic.

Most evictions remain suspended until the end of May 2021, though are still possible where a possession order was made on the basis of arrears of rent and there are more than six months arrears.

Alongside the restrictions on the making and enforcement of possession orders, the new regulations required landlords to, in most cases, give considerably more notice to tenants to quit than had been required previously. Notices to quit based on breaches by the tenant – most notably the failure to pay rent – increased to 4 weeks.

“No fault” notices to quit under section 21 of the Housing Act 1988 previously required 2 months’ notice but this was increased to 6 months.

How are things likely to change as the country starts to emerge from the pandemic restrictions?

What next for residential tenancies?

When it extended the eviction moratorium to 31st May, the government announced that at that point the ban will taper off. No details have been given as to how this ‘taper’ will take effect, with a government statement merely saying: “The government will consider the best approach to move away from emergency protections from the beginning of June, taking into account public health advice and the wider roadmap.”

With the vaccination program having made good progress, it is likely that the government will also relax the increased notice periods that landlords have had to give during the pandemic, though it is far from clear that they will return to the position prior to the pandemic.

Even before the pandemic, the section 21 notice had been subject to heavy criticism from a number of quarters, citing the lack of security of tenure it gave to tenants who had done nothing wrong, and may well have lived in the property for a number of years, but could be required to leave with just two months’ notice.

At the state opening of Parliament on 19 December 2019, the Queen’s Speech announced a Renters’ Reform Bill that would abolish the use of ‘no fault’ evictions by removing section 21 and reforming the grounds for possession.

The government said at the time that doing so would give tenants who had done thing wrong greater protection from arbitrary eviction while also giving landlords more rights to gain possession of their property through the courts where there is a legitimate need for them to do so by reforming current legislation. Without providing any details on how, it also said that it would work to improve the court process for landlords to make it quicker and easier for them to get their property back.

Perhaps understandably given the advent of the pandemic some three months later, the government had not taken any steps to progress this bill and it remains to be seen whether it intends to do so.

It is likely that there will be some sort of change to the current section 21 “no fault” notice mechanism, though it’s impossible to say when or what form that will take. Much depends on whether the government can find time in its post-Covid legislative agenda to push this forward.

The fault-based notice regime was less controversial and is less likely to see any significant change. For their part, landlords would certainly like to see the government deliver on its promise to make it quicker and easier to regain possession from tenants who don’t pay the rent or otherwise breach their tenancy agreement – at present, the system is slow and costly, and when once they have regained possession landlords cannot recover any of those considerable costs from the defaulting tenant.

Commercial tenancies

While not as extensive as that afforded to residential tenancies, the government’s emergency legislation also afforded extra protection to commercial tenants hit by the impact of the pandemic.

The landlord’s traditional remedy to deal with non-paying commercial tenants, forfeiture (i.e. re-entering the property and bringing the lease to an end, without the need to get a court order) was suspended and remains unavailable until at least 30th June 2021.

The other usual remedy, of taking possession of goods belonging to the tenant and selling them to pay rent arrears (known as the Commercial Rent Arrears Recovery or CRAR) was still possible but subject to strict limits based on the number of months’ arrears of rent, and these limitations will remain in place until at least 31st July 2021.

The weapon of last resort – applying to make the tenant bankrupt or to wind up the company – was also made more difficult given the restrictions imposed on the presentation of bankruptcy and winding up petitions unless it can be shown that coronavirus has not worsened the debtor’s financial position or the debtor could not have paid its debts even if there had been no such worsening of its financial position.

Other landlords such as monetary claims through the court, or against guarantors, remained possible but many commercial landlords have had found themselves with very limited options to recover unpaid rent over the past year.

What next for commercial tenancies?

Again, no-one knows for certain as the government has given little indication of how it intends to proceed once the current restrictions come to an end in the next few months but the expectation is broadly that the restrictions will taper off in a similar way to residential tenancies.

It seems likely that there will be some further protection for tenants, bearing in mind that many will only recently have re-opened their businesses and there will be others in the hospitality industry who cannot do so until May. The likelihood is though that there will be a return to “business as usual” in terms of enforcement remedies as 2021 progresses.

Whether landlords choose to use those remedies even if they become available again is of course another matter. It is thought in some quarters that the pandemic as created a seismic shift in some sectors away from centralised working, which may have a marked effect on the demand for office premises. Landlords may well be more inclined to try to negotiate with tenants who are struggling to pay the rent rather than find themselves with empty premises they can’t re-let.

Anecdotally, however, demand for industrial and other manufacturing premises is healthy and the trend for market rents is upwards rather than downwards. Where that is the case, landlords may well be much quicker to start re-using their rights to obtain payment or end tenancies where they feel that they can find tenants better able to pay.

If you have any questions, or are a residential or commercial landlord and have issues with non-payment of rent or other tenant issues, please get in touch with the MLP Law Dispute Resolution team disputeresolution@mlplaw.co.uk or call on 0161 926 1534.

Families in Business and Family Businesses Post Lockdown – What Now?

Welcome to our series of blogs, addressing post-lockdown issues from a legal perspective. This week we hear from our Family Enterprise specialists in our MLP Law Corporate and Commercial team.

After the turbulence over the past months and some businesses having fared better than others, the next few months and planning the medium to long term is crucial to all business. Particularly so for family businesses, to ensure they maintain balance and harmony within the family group as well as the business. This article considers the key issues family businesses should be considering as we come out of lockdown and progress through the year.

Key considerations:

How does everyone in the family feel, and have their perspectives on medium term goals and ambitions changed? Misaligned expectations are the common cause of disputes and tension, simply assuming people want to get ‘back to normal’ is a mistake. It is important to consider what the new normal looks and feels like for everyone in the family dynamic.

How do the senior management team in the business feel?  (everyone in the business is important, this article is considering the top level, board, shareholding and family aspects of post lockdown planning). What are their plans and have their perspectives and ambitions changed?

What are the short and medium term plans for the family owner managers?  Retirement, a willingness to lighten the grip on the reigns (and who takes hold) or earlier exit from the day to day running of the business are very possible outcomes as people reflect on the last 12 months.

We’ve been helping family enterprises for decades and, in particular over the last few years, helping manage transition within the business as roles and responsibilities shift as time passes. As we all know, your view, priorities and goals now are not necessarily going to be the same in 5 years, 10 years or longer.

Reviewing those changing dynamics now will set the business and family unit in good stead.

In particular, the family enterprise (how the family operates as distinct from the business) needs to consider how the roles in the business, in the family and around ownership and sharing the wealth generated by the business will change now, in 5 years and in the 10 years or more. There are a number of ways to do this successfully. We know that the most successful family enterprises adopt an open collaborative approach to the review, involving as many individuals as possible in the family dynamic. 

A successful review should explore the below, amongst other issues:

A consideration of those that may be looking to retire (and when).

Is the distribution of the wealth being generated in line with the family’s stated values?

Are the values and aims of the family enterprise still relevant or do they need to adapt to the new normal?

What are the likely roles for the younger generation in the business (if any) in the future and is there likely to be an appetite from them to take up these roles?

How will the family support the younger generation / young adults in the family in pursuing their future careers and endeavors?

These challenges and questions are not new, but the challenges thrown up over the last 12 months or so means that it is likely that everyone has or will reflect on and reset their values and goals, consider their futures against their values and seriously consider if what they are doing and going to do, truly aligns with their long-term goals and values.

Facilitating and enabling these discussions early on in an open and honest way with each other – their immediate family and wider family, in any business is crucial now as it has ever been.

We can help businesses and business owners address and facilitate those conversations. In particular:

Are the non-family senior managers in the business fully engaged and being rewarded and valued? If not, how do you address that?

Are there clear succession plans in place?

Is the distribution and share of the wealth generated fair and transparent (salary, dividend income, capital wealth)?

What is the timescale for the next transition of ownership and roles – family and business (whether retirement, through children taking senior roles, or younger generation being introduced into the business) What processes are in place to make that happen successfully?

When was last time the vision of values and any charter or constitution of the family enterprise was reviewed?

We can help with these and many other issues both inside and outside the business.

If you would like any help with the issues raised please contact our expert family business advisers on corporate@mlplaw.co.uk or 0161 926 9969. Click here for more information and to review your business’ vulnerability score.

Race to the Altar!

Welcome to our series of blogs, addressing post-lockdown issues from a legal perspective. This week sees the latest blog, from our MLP Family law team, looking at prenuptial agreements.

With restrictions hopefully being fully removed on 21st June 2021, couples who have either postponed their weddings from last year or have a wedding planned for this summer, with hectic schedules of wedding preparations as a result, couples are reminded that they may wish to consider entering into a prenuptial agreement to protect their premarital assets. Prenuptial agreements are still not wholly binding in the UK but the court will seek to apply the agreement unless it a deemed unfair.

To be binding:

  1. Each party must offer full financial disclosure of assets, liabilities in the agreement.
  2. The agreement must be voluntarily entered into without duress.
  3. The agreement must be entered into at least 21 days ahead of the wedding date.

If you are getting married this summer or planning to get married and wish to receive more information about Prenuptial agreements please contact Rachael Wood who is the head of our Family team on 0161 928 1581 or email rachaelw@mlplaw.co.uk.

Managing stress in the Workplace

“There cannot be a stressful crisis next week – my schedule is already full.”  Henry Kissinger

In the hope that a return to more normal working practices is on the horizon, many employers are taking stock; wanting to create a stronger, more resilient working environment for staff as lockdown eases.  Given that April is Stress Awareness month, one way to achieve this is to try to combat stress at work.

What is stress?

Stress is defined as ‘the adverse reaction people have to excessive pressures or other types of demand placed on them’ (The Health and Safety Executive).  Stress is not in itself an illness, but can lead to conditions such as anxiety and depression.  Stress, anxiety and depression can also increase the risk of conditions like heart disease, back pain, gastrointestinal illnesses or skin conditions. 

The benefits of tackling stress in the workplace

Over recent years, there has been an increased focus on the benefits that supporting mental wellbeing amongst staff can bring and this issue has only garnered more attention during the Pandemic.  In general terms, reducing work-related stress is thought to help make staff healthier and happier, which can result in a positive impact on performance and productivity.  Similarly – not only can effective stress-management reduce absence levels, improve morale and reduce workplace disputes, thereby improving the day to day experience of being at work – it can also have longer-term benefits, making the business more attractive to high quality recruits and encouraging improved commitment and creativity amongst existing employees.

Legal risks to employers

Moreover, mishandling a work-related stress or mental health issue could give rise to legal claims, such as:

  • constructive unfair dismissal, as it may constitute a breach of the implied term of trust and confidence
  • breach of the statutory duty to protect an employee’s health and safety
  • personal injury, as a result negligence or breach of the common law duty to take reasonable care eg to ensure that the duties allocated to the individual do not damage their health
  • unfair dismissal, if there is no fair reason to dismiss and/or the employer fails to follow a fair procedure when dismissing an employee suffering from stress
  • discrimination regarding prohibited conduct under the Equality Act 2010 (EqA 2010), if the employee has a disability

Identifying an individual who may be experiencing stress

Acas has produced guidance for employers highlighting signs that an individual may be stressed, these include:

  • changes in the person’s usual behaviour, mood or how they interact with colleagues
  • changes in the standard of their work or focus on tasks
  • appearing tired, anxious or withdrawn and reduced interest in tasks they previously enjoyed
  • changes in appetite and/or increase in smoking and drinking alcohol
  • an increase in sickness absences and/or turning up late to work

Combating stress in the workplace

There are two key ways in which an employer can seek to reduce the risk and, consequently, capitalise on the benefits of a well-managed workforce from a stress point of view.  The first is to seek to prevent work-related stress.  Employers are encouraged to action this in a variety of ways, most importantly by:

  • conducting risk-assessments, looking at factors such as workload and targets
  • having thorough appraisal and monitoring systems to ensure staff have early feedback on performance and a forum for discussing concerns (with virtual one-to-ones becoming more vital as employees are set to work from home in increasing numbers)
  • ensuring adequate training and support – in relation to both the technical aspects of an employee’s role and in relation to the issue of stress itself
  • having reasonable expectations regarding the individual’s role and responsibilities

Secondly, where employees have been identified as suffering from work-related stress, useful measures that can be adopted include:  

  • offering access to counselling services
  • rigorous absence management procedures, allowing the problem to be identified and explored
  • expert support, both in respect of the employee’s role and also managing stress, communication etc
  • consideration of reasonable adjustments.

Clearly, the cause of an individual’s stress is not always identifiable or easily compartmentalised, often it is the cumulative pressure on an individual  – both professional and personal – that can result in them suffering from stress or stress-related illnesses.  Nonetheless, any employer that can demonstrate that it has taken effective steps to reduce stress in the workplace, can ease the burden on those employees with difficulties in their private lives and therefore encourage a healthier, happier workforce.

If you have any questions or concerns about combating stress in the workplace please get in touch with the MLP Law Employment team at employment@mlplaw.co.uk or 0161 926 9969. Please also keep an eye out on our Twitter feed @HRHeroUK and for our regular blogs on all things Employment Law and HR.

Stress Awareness and Prevention at MLP Law

Stress Awareness Month has been held every April, since 1992 to increase public awareness about both the causes and cures for our modern stress epidemic. According to the Mental Health Foundation 74% of UK adults have felt so stressed at some point over the last year they felt overwhelmed or unable to cope.

As an employer, mental health and well-being should be a priority, and here at MLP we make sure it is. Our dedicated wellbeing team work hard to be able to continually support every employee at MLP whether it’s remotely or in the office.

It is important to talk about stress and feeling comfortable to do so. Tackling stigma can make a real difference to sickness absence rates, productivity and retention. Our Wellbeing team host monthly Zoom coffee mornings for employees, to give everyone a chance to catch up with each other and to provide a platform where everyone can speak openly and freely about any work stresses or personal life stresses they are experiencing.

We also realise that some people may find it easier to write down how they are feeling rather than speaking about it in a group setting. The Wellbeing team also sends out an online survey monthly to hear from colleagues about how they are doing (in and out of work). This survey can be answered completely anonymously as we appreciate sometimes it is hard to open up about how you’re feeling. All responses are carefully considered and discussed with meaningful action being taken by the Wellbeing team after all feedback has been provided.

As well as talking and providing the platforms for honest communication, we realise that another key way to help reduce and tackle stress is through social outlets and each month we ensure we have a Firm Social that allows everyone to switch off and to relax and enjoy themselves. Recently, our Teams have taken it in turns to host virtual socials once a month and most recently our socials have included an MLP Task Master event in aid of Homeless Link, a day at the races, and a whodunit murder mystery!

For more tips on dealing with stress visit The Stress Management Society’s website, where there are many useful resources including a guide on how to cope with stress – “Taking you from distress to de-stress” , give it a read and remember to take time to look after yourself, and if you are struggling with stress please seek a friend or colleague who can help provide resources and support.