July 2021 - MLP Law

Taking the ‘Free’ out of ‘Freedom’ Day – Considerations for Employers

As the 19 July, dubbed ‘Freedom Day’, approaches many employers are having to adapt to the change in emphasis from the Government; moving from a system of legal limits imposing Covid-secure measures to a softer, guidance based regime, newly focusing on an individual’s ability to determine how to behave in certain situations.

Masks and Distancing

Given this forthcoming change, employers and businesses can now tailor their approach to suit the needs of their own organisation, particularly regarding distancing and mask wearing.  Yet, some employers are feeling concerned over the lack of clarity, with Unions also calling for the re-imposition of mandatory mask wearing in certain indoor venues, including public transport.

Indeed, in recent days, some high-profile businesses have announced how they intend to operate over the coming months, after the 19 July.  Waterstones and the UK’s 2 largest supermarkets, Tesco and Sainsbury’s, have outlined that they will still encourage customers to wear masks and will continue to require staff to do the same.  Tesco went further, stating that it will continue to limit customer numbers in stores, wanting to keep ‘on the safe side’ for both staff and customers.  Retail company, Timpsons, however, has stated that although it will continue to require staff to wear masks, it will be left up to customers to decide whether or not they will don a mask in store.

Yet, there are some businesses that are concerned with the perception that imposing mask wearing has on user-confidence, with some rail networks concerned about being singled out as one of the few places where mask wearing should be made compulsory and therefore sending the signal that they are a ‘danger zone’.  For those businesses who actively want to minimise mask wearing, we would caution against a rule to prevent staff wearing masks, as this could create a number of health and safety and discrimination risks amongst staff.

Essentially, whilst not quite an ‘anything goes’ approach, employers will now be able to adopt policies and strategies to manage Covid risks, whilst giving a greater weight to what will most benefit their business.  Factors that many employers will want to consider going forward will include:

Ensuring avenues for employee consultation.

Processes for dealing with staff confidentiality and sensitively, should they wish to discuss concerns on an individual basis.

Health and safety risks, specific to their business ie size of workplace, nature of business etc.

Ability to operate at optimum levels, to continue the success of the business and therefore job security.

Working from Home

The Government has also emphasised a gradual return to work for those working from home, which may not be too difficult for many businesses to implement, as the nation’s workforce continues to embrace a hybrid approach to where staff are expected to work.  Employers who wish to encourage a return to the workplace, however, will now be more easily able to justify that approach.

Vaccine Privileges

On a final note of caution, whilst a significant minority of (mostly younger people) have not yet had the opportunity to have both jabs, it is sensible to avoid giving vaccine privileges to staff (for instance, a rule that staff who have had both jabs have greater choice in the location that they can choose to work ie more access to the office).

If you have any questions please contact 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

Will Alternative Dispute Resolution Become Compulsory?

In the latest blog from our Dispute Resolution team, we look at whether taking part in some form of alternative dispute resolution might become compulsory before court proceedings can be issued.

Alternative Dispute Resolution (ADR) has been around in a number of forms – the most common being mediation – for upwards of 30 years now. Designed to try to keep cases out of court, all parties in litigation are under an obligation to positively considered whether ADR might assist and, if they believe that it won’t, they can be required to explain to the court why they think that.

As things stand, while the obligation to consider ADR is mandatory, courts cannot force parties to do so if they choose not to. They do have the power to make costs orders against parties who they think have unreasonably refused to mediate, but there is no actual power to compel the parties to engage in some form of ADR.

The Civil Justice Council, headed by Court of Appeal judge Lady Justice Asplin, recently published a report in which it concluded that mandatory ADR is compatible with Article 6 of the European Human Rights Convention (which relates to the right to a fair trial) and is therefore lawful.

This followed a request from the most senior civil judge, the Master of the Rolls Sir Geoffrey Vos, to consider whether ADR could (and indeed should) be made compulsory amidst concerns that too few parties to disputes were agreeing to participate in it voluntarily.

Commenting on the report, the Master of Rolls said: “As I have said before, ADR should no longer be viewed as “alternative” but as an integral part of the dispute resolution process; that process should focus on “resolution” rather than “dispute”. This report opens the door to a significant shift towards earlier resolution.”

The CJC report does expressly acknowledge that further work is necessary in order to determine the types of claim and the situations in which compulsory ADR would be appropriate and most effective for all concerned, so it’s unlikely that anything will change in the near future. It also stops short of a positive recommendation that ADR should become compulsory.

However, the general direction of travel in thinking over the past few years has been towards greater use of online resolution of claims of modest value (such as those which currently fall into the small claims track, of £10,000 or less) and to keeping more cases out of court to free up judicial resources.

Against that backdrop, it seems likely that some form of compulsory ADR will be introduced in the medium term – but the devil will inevitably be in the detail of what types and value of claims it will apply to.

If you have any questions or find yourself having to deal with a dispute, please get in touch with the MLP Law Dispute Resolution team by email to markt@mlplaw.co.uk or 0161 926 9969 to see how we can help.

Managing the “pingdemic” – when do my employees need to self-isolate?

As COVID infection rates remain high, and the so-called “pingdemic” continues to cause disruption to businesses and social lives, many employers are feeling the impact of their employees being unable to attend work due to self-isolation requirements.

With every chance that this disruption will continue through the summer, the Employment team at MLP Law thought it would be useful to set out the isolation requirements which may impact on your workforce over the coming weeks.

From 19 July onwards:

If your employee………They must………
Has COVID symptomsTake a PCR test and self-isolate until the results are received.
Receives a positive result from a lateral flow test (LFT)Take a PCR test as soon as possible (within 2 days of the LFT. Self-isolate until the results are received.
Receives a positive result from a PCR testSelf-isolate for 10 days following the date their symptoms started. If they have no symptoms, the 10 days runs from the date of their test.
Receives a negative result from a PCT testNo need to self-isolate, unless they fall into another category which requires self-isolation.
Lives with someone who has COVID symptons or who receives a positive result from an LFTSelf-isolate whilst the person they live with awaits the results of a PCR test.   Only if the PCR result is negative may your employee end their self-isolation. 
Lives with someone who has received a positive result from a PCR testSelf-isolate for 10 days following the day on which the person developed their symptoms or had their PCR test (if no symptoms).   This applies even if your employee receives a negative result from an LFT or PCR test.
Is contacted by NHS Test and Trace and instructed to self-isolate due to contact with a positive COVID case    Self-isolate for 10 days following the last day on which they had contact with that person who had tested positive.   This applies even if your employee receives a negative result from an LFT or PCR test.   A limited number of workers in specified industries are exempt from these requirements, provided they have been fully vaccinated.

From 16 August 2021, your employees who

• have been fully vaccinated (having received their second dose at least two weeks previously); or
• are under the age of 18 years and 4 months

will not be required to self-isolate if contacted by NHS Test and Trace. Instead, they will be advised to take a PCR test and must follow the above self-isolation guidance if they test positive. All other rules as set out above will continue to apply.

Understanding the rules on self-isolation is as important as ever, with employers still at risk of a minimum fine of £1,000 if they are found to have knowingly allowed an employee to breach their self-isolation obligations.

The good news is that the Employment team at MLP Law is on hand to talk through your options for managing the “pingdemic” and the impact of the pandemic generally. If we can help in any way, please do not hesitate to get in touch on 0161 926 9969 or employment@mlplaw.co.uk, or follow us on Twitter @HRHeroUk.

Your health and safety obligations post-Freedom Day – freedom in, health and safety out?

For many people, 19th July 2021 was “Freedom Day”, when the majority of COVID restrictions, such as mandatory mask wearing and social distancing, were removed.

So does this mean that employers no longer need to think about COVID-related health and safety issues? Well……not quite.

In many ways, the position has not changed for employers. They are still obliged by the Health & Safety at Work Act 1974 to take all reasonably practicable steps to reduce risks to the health and safety of employees, visitors and the public to the lowest reasonably practicable level.

Employees also retain the basic right to stay away from the workplace if they reasonably believe that it poses a serious and imminent health and safety risk to them which they cannot be expected to avert. The context of this right may have changed – it is much easier to allege such a belief in the risks of the workplace during the height of the pandemic when various legal counter measures have been introduced, and conversely, harder when those measures deemed by the government to be necessary, no longer apply – but employers must remain alert to concerns from employees about the safety of the workplace.

Mindful of their health and safety obligations, and with COVID infection rates still high, many employers are therefore likely to be reluctant to bring the measures that have served them well throughout the pandemic to an abrupt end.

Detailed workplace precautions around testing, masks, hygiene, social-distancing, screens etc are therefore likely to continue to be a feature of many workplaces and whether to keep in place such measures will ultimately remain a matter for employers to decide upon, based on their own understanding of their workforce and workplace.

Employers may face push back from employees who believe that they can no longer be required by their employers to wear masks or maintain social distancing, for example, now that restrictions have been removed nationally. However, this is not the case and employers are perfectly entitled to give reasonable management instructions to their employees to follow workplace health and safety rules, regardless of the existence (or not) of national guidance on COVID measures.

In this regard, it is likely that continued COVID safety measures, where applied proportionally and taking account of legitimate employee concerns, will be seen as perfectly reasonable steps to take as the country learns to “live with COVID” over the coming weeks and months.

If you would like to discuss your post-Freedom Day health and safety obligations with Employment team at MLP Law, please do not hesitate to get in touch on 0161 926 9969 or employment@mlplaw.co.uk, or follow us on Twitter @HRHeroUK.

“Hybrid working” – what is it and how do you get it right?

There is no denying that the COVID19 pandemic has drastically changed the way many people work. Much of this was a matter of necessity as employers adapted to “work from home” guidance and took steps to protect their employers and customers from the spread of coronavirus.

However, it is now also clear that expectations of “what work looks like” has also shifted, from the perspective of both employees and employers. The answer to this for many employers is “hybrid working”, but what exactly is this and what do employers need to consider before introducing it in their businesses?

We’ve set out below a helpful guide on the concept of “hybrid working”, setting out the key issues for employers to bear in mind when considering adopting a Hybrid Working Policy.

What is hybrid working?

“Hybrid working” generally refers to a scenario where an employee works part of their working hours on-site in the workplace and part of their working hours from home (or another suitable remote location). Hybrid working is sometimes referred to as “agile working”, “blended working” or “split working”.

Hybrid working is not the same as homeworking, which is where an employee works all (or almost all) of their working hours from home (or remotely).

What are the benefits of hybrid working?

Advocates of hybrid working believe it can provide a better work/life balance, enhance productivity and performance and ensure that time spent being physically in the workplace is put to better use.

Are there any negatives?

Naturally, there are also a number of challenges with adopting a hybrid working model. Most of these are surmountable for most employers but, depending on the nature of the work being carried out, can pose a hurdle for others. Frequently cited difficulties often relate to supervision, training, employee engagement and concerns about productivity.

What should my hybrid working model look like?

There is really no restrictions on how a hybrid working model should be applied. Ultimately, it will depend on what the employer is trying to achieve and how a hybrid working arrangement would complement (or not) the work being performed by its employees.

Many employers who have introduced hybrid working have done so on a trial basis, creating a period of review (both ways) to ensure the working arrangement truly works for both employer and employee.

What factors should an employer consider when introducing hybrid working?

Factors which most employers will need to consider when designing a hybrid working model include:

• whether the arrangement should be genuinely flexible (for example with employees deciding upon their working pattern on a weekly/monthly basis) or whether a basic hybrid working pattern should be set (for example setting the specific days on which the employee will attend the workplace and the specific days when they will work remotely);

• whether the arrangements should (or indeed can) apply to all roles, or only specific roles and whether there should be a limit on the number of hybrid workers within the business (or a minimum ratio of hybrid workers to workplace based workers);

• whether a hybrid working arrangement will also include more flexibility around working hours;

• whether to allow the remote working aspect of the hybrid arrangement to be carried out outside of the UK (which can have significant additional legal and practical issues for both the employee and employer);

• whether (and when) there should be mandatory workplace attendance, for example to ensure physical attendance at certain key meetings or events, to carry out certain activities or meet specific customer requirements;

• how training, supervision and performance monitoring can be conducted under a hybrid working arrangement;

• whether the employee has a suitable working environment to enable them to work remotely – the considerations here may be different when considering hybrid working as a long term model rather than an emergency solution during the COVID19 pandemic;

• what (if any) equipment should be provided by the employer to the employee to enable them to work remotely for some of their working hours; and

• whether confidentiality and ether key obligations can be maintained when the employee is working remotely and whether doing so is compatible with any relevant policies of insurance (including the employee’s home insurance).

Do we need a formal Hybrid Working Policy?

Given the number of factors to be covered in any hybrid working arrangement, a formal policy is likely to be essential. That’s not to say that your arrangement won’t evolve over time as a hybrid way of working becomes second nature. However, setting out the general rules and expectations of a hybrid working model will ensure consistency in its application and help minimise the potential for disputes and complaints.

Can you help?

The Employment team at MLP Law is here to help you put in place a hybrid working model which fits your business perfectly. If you would like to discuss in more detail, please do not hesitate to get in touch on 0161 926 9969 or employment@mlplaw.co.uk, or follow us on Twitter @HRHeroUK.

Your post-Freedom Day workplace

Keen followers of our Employment Law blogs will have seen our recent guides on managing the “pingdemic”, the key considerations when introducing hybrid working and ongoing health and safety obligations in a post-freedom workplace.

In this blog, we round up a number of additional issues which are likely to become more prevalent for employers over the summer and beyond:

An increase in flexible working requests?

Following the lifting of the “work from home” guidance on 19th July 2021, it is anticipated that employers are likely to see a rise in flexible working applications from employees, requesting homeworking or hybrid working arrangements which enable them to continue to benefit from the improved work/life balance these arrangements can offer.

Ultimately, “Freedom Day” has no direct impact on how employers should respond to such requests, which should still be considered in the way they always were. This means approaching them with an open mind and due consideration and only rejecting them for one of the eight prescribed business reasons.

Naturally, however, responding to flexible working applications at this point will likely require a consideration of the new context in which the request is being made. This will particularly be the case if the employee can point to the arrangement having worked on a temporary basis during previous phases of lockdown, for example.

Employee mental wellbeing

Employers will continue to have responsibility for managing the mental wellbeing of their employees where this intersects with the workplace.

Given that some individuals may feel anxious about the removal of many of the previous COVID restrictions from 19th July 2021, it seems inevitable that this will also have an impact on the workplace.

Indeed, some employees will be concerned regarding the resumption of normal commuting now that mask wearing is not compulsory on all modes of public transport (although Manchester’s Metrolink is requiring masks to be worn as a condition of carriage). Similarly, employees in public facing roles may be concerned about interacting with the public without the previous COVID restrictions being in place.

Employers should continue to deal with any such employees sensitively and confidentially and take action that is appropriate after considering individual circumstances, rather than adopting a blanket approach.

COVID-related grievances

As restrictions are lifted, and employers try to balance their obligations to their employees with a need to reopen and rebuild following the stop-start of repeated lockdowns over the previous 18 months or so, many are predicting a rise in workplace tensions between colleagues with opposing views on the pandemic, as well as between employers and employees about what restrictions should remain in place in the workplace (if any).

The nature of such tension is difficult to predict, of course, but it is easy to imagine disagreements between an employer seeking to maintain certain COVID measures (such as mask wearing and social distancing) and an employee who refuses to comply, citing the removal of restrictions on a national level. Similarly, it is not too difficult to imagine tension developing between colleagues at the opposite ends of the scale of opinions when it comes to such issues.

Ultimately, provided they are reasonable, the rules of the workplace are a matter for the employer. On this basis, any dispute between employer and employee should be capable of being resolved in a fairly straightforward manner. Things may get trickier when resolving disputes between colleagues, but it would seem logical that encouraging an environment of tolerance and empathy will ultimately win out. Colleagues should therefore be encouraged to respect each other’s views and adapt their behaviour accordingly, including accommodating the wishes of those who may be more anxious or cautious about the removal of restrictions in the workplace and generally.

Working from home – has a contractual right been created?

Employees who have been working from home, as mandated by the government, have generally not done so with a corresponding permanent change to their contractual status.

Put another way, up until now most employees have not had the implied contractual right to work from home on the basis that a homeworking arrangement forced on the employer by lockdown is not generally expected become contractual through custom and practice because neither party had any choice about it.

However, now that the government’s guidance to work from home has been removed, the situation has changed. Now, employers who simply let the working from home status quo continue may be running the risk that the arrangement may become contractual through custom and practice.  

Employers who wish employees to return to the office, either under a hybrid working model or on a full-time basis, should make this clear to employees in writing as soon as possible, in order to counter any suggestion that they have tacitly allowed the employee’s contractual terms regarding their place of work to permanently change from the workplace to their home.

If your business is affected by any of the issues raised in this blog please do not hesitate to get in touch with the Employment team at MLP Law on 0161 926 9969 or employment@mlplaw.co.uk, or follow us on Twitter @HRHeroUK.

Probate Fees Set to Increase from 2022

The fee charged by the Probate Registry to issue a Grant of Probate is set to increase from 2022. The current fee is £155 for solicitor applications and £215 for individuals applying.

The Ministry of Justice has stated that the current system is operating at a loss and is being subsidised by the tax payer. The proposed increase is to be a flat fee of £273 for all applicants – solicitors and individuals, regardless of the size of the estate.

The government have claimed that a deficit of £85 million currently exists within the probate and family court system, and that the proposed increase to the probate application fee will raise an additional £23 million to £25 million pounds each year from 2022 which will be used to offset the current deficit.

Readers may recall that the government had previously proposed an increase in the probate application fee in 2015 and 2016, with huge potential increases of up to £20,000 being put forward for the highest value estates and a sliding scale fee chart operating depending upon the estate value. This plan was later shelved

A fee increase was again suggested in 2019 which would have meant estates being liable for a fee of up to £6,000 to apply for a grant of probate. Interestingly, in 2019 the proposal was that the increase would be put towards funding the court service as a whole, and there was no suggestion at that time that the probate service was operating at a deficit.

Over the last 18 months the Probate service has undergone huge changes administratively with the introduction of an online application process. There are currently lengthy delays at the Probate service, with applications taking several months to be processed. Contact facilities at the probate service are also subject to severe delays with email responses taking several weeks and telephone calls subject to up to an hour on hold. The fee consultation has just opened and is to run until 23 September when the proposed fee increases will be confirmed.

If you have any questions on the above, please do not hesitate to contact the WTP team by phone on 0161 926 9969 or by email to WTP@mlplaw.co.uk and we will be more than happy to advise you.

Families in Business and Family Businesses – What Next?

It’s been a long time coming and finally we sense that we’re all finally gearing up to welcome in the new era and explore what new normal means for us, our businesses, our colleagues, our customers and our families.

We’re advocating a 3Rs approach to the second half of this year:

Refresh, Review Re-energise.

Key considerations:

Refresh: An army may march on its stomach. A Family Business relies on those at the heart (of the family and the business) to function as well as possible.  How do you feel? Have you got a break booked? 

How does everyone in the family feel and how do the senior management team in the business feel? 

Review:  What are the short and medium term plans:

For the family owner managers? 

For the family – what changes can you expect in the next 3 to 5 years

For the Business

Reviewing those changing dynamics now will set the business and family unit in good stead. We’ve been helping family enterprises for decades and 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

Re-energise: Consider everyone’s experience throughout the last 18 months. What is each individual’s perspective?  An exercise, to de-brief, to decompress from the strains and challenges of the last 18 months will help everyone from family units to senior management teams to business units and colleagues.  No two experiences will have been the same. Loss, grief and isolation affect people differently.  Enabling a period of reflection and rehabilitation will speed up the process to re-energising and re-focusing on the business and the key results that need to be achieved to place the business in the best possible place for 2022 and beyond.

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

For more information on Family Business see our previous article: “Families in business and family businesses post-lockdown”

Contact us to request a free copy of Stephen Attree’s e-book: “Succession in Family 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.

Domestic Abuse Increase

It has been reported that there is an increase of approximately 38% in domestic abuse incidents when England lose a football match. 

If you feel you need advice please click the link below for the details of various agencies you can speak to.

https://www.gov.uk/guidance/domestic-abuse-how-to-get-help#get-help-and-support

We can also help to provide you with the legal protection you may need in exiting an abusive relationship. If you wish to have a confidential conversation please contact Rachael Wood on 0161 926 2581 or email rachaelw@mlplaw.co.uk.

The Legal Process of a Management Buyout

Management Buyout Series Part 3: The Legal Process

What is a Management Buyout?

A management buyout (MBO) is a transaction where the core management team of a company work together to buy a company, or part of it.

Please refer to our blog on MBOs: the Pros and Cons and MBOs: Considerations before, during and after an MBO 

This guide sets out the likely legal documents required on an MBO assuming that a single newco buying vehicle is used by the MBO team and external funding is required.

Initial Documents

Heads of Terms between seller and buyer for the acquisition

Heads of Terms with any equity investor

Bank Term Sheet

Confidentiality Agreement

Due Diligence Enquiries

Responses to Due Diligence (and supporting documents)

Management Questionnaires for the investors

Newco incorporation

Board Minutes

Allotment of Shares

Appointments

Share Certificates

Shareholders Agreement between MBO team

Articles of association

Acquisition Documents

Sale & Purchase Agreement (including a Tax Covenant)

Disclosure Letter (and Bundle)

Stock Transfer Forms

Share Certificates

Powers of Attorney

Deeds of Release / Discharge of Indebtedness

Funding Documents

Investment Agreement (if an equity investor)

New Articles

Loan Notes

Security in favour of the investor (debentures and guarantees)

Investor disclosure letter

Directors Service Contracts

Non-Executive Appointments

Vendor Loan Notes

Vendor Debenture (or other security)

Bank Facility Agreement

Bank guarantees and debentures

Intercreditor Deed

Drawdown request

Completion Documents

For each of the Buyer (newco) and the target company, some or all of the following:

Board Minutes

Resolutions of Shareholders

Application for shares

Share certificates

Loan Note Certificates

Appointment Letters and forms

Resignation Letters and forms

Settlement Agreements

Forms to register security

Forms to deal with allotment of shares and statement of capital

Other Ancillary Documents that may be required:

Keyman insurance

Tax elections

Press release

Completion monies undertakings

It can be seen from the above that an MBO is far from simple in terms of legal documentation, particularly where third party funding is required by the MBO team.  However, MBOs remain an attractive option for both business owners wishing to exit and managers wishing to step up into an ownership role.

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