August 2021 - MLP Law

Amy Winehouse’s Estate

Amy Winehouse was a talented singer who sadly passed away at her home in Camden, London at the age of 27. The cause of Amy’s death was alcohol intoxication, which was later ruled by a coroner to have been around 5 times higher than the legal drink drive limit.

Did Amy Winehouse leave a Will?

It was initially believed that Amy Winehouse had made a Will in around 2009, however, it was later found that Amy had never executed her Will. In the circumstances, this meant that Amy died intestate, as she did not leave a valid Will at the date of her death.

What happened to Amy’s estate under the rules of intestacy?

As Amy Winehouse passed away without leaving a valid Will at the date of her death, this meant that her estate (consisting of her assets and liabilities at the date of her death) were dealt with in accordance with the rules of intestacy which are contained within Part 4 of the Administration of Estates Act 1925.

In order to distribute an estate in accordance with the rules of intestacy, an administrator had to be appointed by the Probate Registry in order to distribute Amy’s estate accordingly. The administrator of Amy’s estate was her father, Mitch Winehouse.

Once Amy’s father was appointed as the administrator of her estate, this meant that he had to distribute her estate in accordance with the rules of intestacy as follows:-

To Amy’s spouse or civil partner at the date of her death– Amy and Blake Fielder-Civil had divorced in 2009 (around 2 years prior to Amy’s death), this meant that Blake Fielder-Civil was no longer entitled to be a beneficiary of Amy’s estate. This is because following a divorce being finalised, this means that the ex-spouse/ex-civil partner is treated as predeceasing them.

Blake Fielder-Civil looked to bring a £1,000,000.00 claim against Amy’s estate in 2019, with additional demands of a monthly allowance from her estate. It is reported that Blake Fielder-Civil had previously received the sum of £250,000.00 from Amy as part of their divorce settlement in 2009. Although, Blake’s lawyers believe that if the £250,000.00 was not specified as part of a clean break in the divorce documentation, then, it is possible that Blake be able to bring a claim against Amy’s estate.

To children– Amy did not have any children at the date of her death.

To Amy’s parents– This meant that the entirety of Amy’s estate of around £3,000,000.00 was split equally between her parents, Mitch and Janis Winehouse.6

What would have happened to Amy’s estate under the rules of intestacy, if she had not been survived by her parents?

In the event that Amy’s parents had not survived her, this would have resulted in further family relations being considered as beneficiaries of her estate, as follows:-

To Amy’s siblings– Amy’s brother would have been the sole beneficiary of her estate. In the event that Amy’s brother had passed away before her, his own children would have been the beneficiaries of Amy’s estate by default.

To half-siblings.

To grandparents.

To Amy’s aunts and uncles.

To half-aunts and half-uncles.  

If you would like to discuss making a Will to ensure that your loved ones, friends etc. will benefit from your estate and, to ensure that your estate will be distributed in accordance with your wishes. Please contact our Wills, Trusts and Probate department who will be delighted to assist you with this and any other future planning needs and requirements which you may have on 0161 926 9969 or by email at wtp@mlplaw.co.uk. Our Wills, Trusts and Probate department will also be delighted to assist you with any worries or queries which you may have, in relation to your existing Will.

MLP Flex – Don’t just take our word for it

MLP Flex is great! It’s the perfect solution for proactively, and cost effectively, managing your business’ legal needs.

Of course, we would say that.

But don’t just take our word for it. Why not read what other business leaders have to say about MLP Flex and find out why our average client satisfaction score for MLP Flex is 9.8?

Testimonials from our MLP Flex clients:

“The main benefit of MLP Flex to us is the speed and the convenience, you can send a quick email with a query and get a prompt response. We don’t have to worry about waiting for quotes for the work to be agreed and paying invoices.” Simon Yates, Financial Controller and Company Secretary, Rota Engineering Ltd

“With MLP Flex, we don’t need to worry about day to day employment issues and we have peace of mind knowing that we have the back up and support of a trusted team.” Simon Kane, National Administration Manager, GKR Karate Admin Services LLP

“MLP Flex is great because it enables me to rollover costs and manage cash flow. MLP respect the fact that we have busier times and look at our legal requirements over a 12 month period to determine our requirements.” Lindsay Southward, HRD, Malmaison Hotel du Vin (when quote given) / (now at Village Hotels)

“We always receive timely advice and it is given in plain and understandable terms.” Claire Gardner, MD Osborne Delta (Lightning Conductors) Ltd

“Always on top of the latest changes and challenges facing businesses, providing simple and effective advice.” Simon Kane, National Administration Manager, GKR Karate Admin Services LLP

“Constantly high-quality assistance in a wide-ranging amount of HR and Employment Law issues, including major projects like a Covid resulting redundancy process, Disciplinaries and Employment Tribunals down to quick small inquiries. The replies are always clear and thorough, in easy-to-understand language that can be passed to all concerned without a need to be watered down into plain English.” Simon Yates, Financial Controller and Company Secretary, Rota Engineering Limited

“Gareth is easy to get a hold of and seems to have confidence in his approach. When Gareth is not available, he always ensures that he follows up with you in a timely approach.  Fantastic service and appreciated.” Jamie Whiteley, MD, Pulsar Health

“Excellent support from Gareth whenever it is needed.  Gareth has a sound understanding of our business and always provides a swift response.” Angela Bozward, Interim HR Manager, Belfry Hotel & Resort

Always very quick reactive responses, and understand the issues being raised easily.  Good practical advice given, with different options explained and the pros/cons of each detailed concisely and clearly.” Ellie Hill, Managing Director, Delta Steeplejacks Limited

“MLP have always provided us with fast and detailed advice, which is never generic, but relates specifically to our organisation. Gareth Matthews has been our main contact at MLP for several years and has always offered reliable and timely advice.” Michelle Cannon, Operations & Personnel Director, ICX4 Ltd

“The regular Q&A webinars have been a great addition this year, with all hot topics up for discussion. No query is too small for the team at MLP to assist with.” Simon Yates, Financial Controller and Company Secretary, Rota Engineering Limited

“Paying a monthly retainer for MLP Flex, benefits us as I do not need to worry about how much it is going to cost when I need to pick up the phone and speak to a member of the team. It’s great to be safe in the knowledge that whatever issue may arise, the MLP Law team are on hand to provide us with sound, pragmatic advice.” Anonymous

Contact us today on 0161 926 9969 or hello@mlplaw.co.uk to discuss how MLP Flex can help you.

Exit Options for Business Owners

There is no disputing that COVID 19 has had a big impact on businesses. As companies around the UK now start to rebuild themselves, many business owners may find themselves asking the question: “Is now the time to sell?

Introduction

There are many different reasons why someone may want to sell their company or sell their shares in a company:  

Retirement or early retirement;

Affected by Covid 19;

Doing something different – new opportunities;

Extract cash from the business; or

Ill health

Whatever the reason may be, it is always good to have an exit strategy and the right strategy depends on the type of company or business it is and on what it is you are looking to achieve.

Prepare for an Exit

Preparation is key when you looking to sell your business or your shares in a company.

Get the accounts in order

Consistent monthly management accounts may be more vital to a buyer than a company’s annual audit. Your accountants can assist to determine a fair price for your business or your shares and consideration must be given to what value you are looking to achieve

Appoint the right people to look after your sale

Have a team of accountants, solicitors and professional advisers that understand your business, your objectives and your commercial needs who can help you and guide you through the sale process.

Isolate any investment assets from the business

Any investments or properties held by a company should be dealt with well before a sale so not to incur any extra chares such as income tax charges ie. transferring ownership of a property or hiving out specific assets prior to a sale.

Take advantage of any tax reliefs

The availability of tax relief may be a key factor in determining the best route for sale. Y our tax advisers can advise you in this regard.

Company Health Check

When selling a company, the buyer will undertake a pre-sale due diligence exercise where the affairs of the company are investigated in detail. Getting your house in order, identifying any issues and dealing with these issues prior to the buyer’s due diligence investigations can save a lot of time and money in the sale process.

Find a Buyer

The exit options that are available to sell your business or your company will depend upon your circumstances, but may involve one of more of the following:

Third Party Sale – you can sell your company/business to another company.

Management Buyout – the managers within the business can buy the company, or a stake in the company.  This is a popular option if you’re are looking to retire, keep continuity in the business or just to incentivise management/key employees.

Company buyback of Shares – a transaction between a company and a leaving shareholder where the company buys back the shares from the leaving shareholder. It is usual for the Company to then cancel these shares.

Employee share ownership – You can put in place an employee ownership scheme/employee benefit trust. Further information on employee ownership schemes can be found here.

Wind up the Company – if no buyer can be found, no suitable management buy-out candidates or any other suitable options, the company may be wound up.

You can view our previous blogs for more information on selling shares or assets here.

If you require any help or advice, please speak to our Corporate and Commercial team at on 0161 926 9969 or email corporate@mlplaw.co.uk.

Managing Lasting Powers of Attorney – Registration delays

A Lasting Power of Attorney (LPA) is becoming increasingly important as almost all of us will be affected by issues surrounding mental capacity in some way during our lifetimes, either personally or through a family member or friend.  If you were to become incapable of managing your own finances and personal welfare, an LPA allows you to make provisions in advance of deterioration of health to ensure that your affairs are properly dealt with by someone you trust. The LPA provides you with security that you have chosen someone who is capable of making decisions on your behalf.

An LPA is a legal document that lets you (the ‘donor’) appoint one or more people (known as ‘attorneys’) to help you make decisions or to make decisions on your behalf when you no longer have capacity to do so. This provides you with more control over what happens to things such as your finances or health if, for example you were to become unwell or have an accident at some point in the future and can’t make decisions on your own behalf (you ‘lack mental capacity’).

LPAs must be registered with the Office of the Public Guardian (OPG) before they can be used. This step is an important safeguarding measure for the donor. Whilst LPAs do not need to be registered immediately it is advisable to prevent delays at a later date when they may be needed for use.

The global pandemic, Covid-19, led to workforces being encouraged to work from home where they can, including staff working at the OPG. The OPG reduced the number of staff at offices to adhere to social distancing.

Unfortunately, the OPG recently published a statement advising that people allow up to 20 weeks for LPAs to be registered. The delay is due to staff being forced to work from home during the unprecedented last 18 months.

Whilst the delays are frustrating, the OPG are working hard to continue processing application s as quickly as possible.

How can MLP help me?

Whilst there is no strict requirement to register LPAs straight away, our professionals recommend submitting applications for registration as soon as they have been completed. To register the documents means that should unforeseen circumstances arise whereby a donor loses mental capacity or wishes to give permission for their attorney’s to make decision on their behalf regarding finances, they are able to do so without the need to wait registration process.

If you choose to wait until the powers are needed before submitting the application for registration, this will cause complications surrounding the needs of the donor and decisions being made.

If the donor loses capacity after completing the forms but before registration has been completed, this may cause time sensitive issues which may have to wait until registration is completed or interested parties may make decisions prior to registration in circumstances regarding urgent medical care and care needs, which may not follow the donors wishes. In the matters surrounding finance, where a donor loses mental capacity their assets will be frozen until the LPA is registered. This means that the donors cannot settle bills, go to the bank or deal with any financial matters on behalf of the donor.

MLP Law’s specialist are advising all clients that when putting LPAs in place, that they should look to register them as soon as possible to avoid any delays. We ensure that all matters are dealt with quickly and efficiently.

Our offices are open for covid-19 safe appointments, alternatively we can discuss your instructions via telephone, video call or email.

Contact Details for Wills, Trusts and Probate Team: 0161 9269969 or WTP@mlplaw.co.uk

The impact on directors’ duties and climate change

Over the course of the last decade we’ve seen a shift from the traditional “environmental” concern that is associated with climate change to a new era of climate change that focuses on business and corporate risk.

With more companies considering climate change related risks and with the landmark ruling in May 2021 that Shell is to be held accountable for and ordered to reduce their emissions by 2030, we look at which of the directors’ duties are most relevant in this evolving area of law and practice…

Duty to promote the success of the Company for the benefit of its members as a whole.

Whilst this is primarily a financial duty, the obligations of a director to consider the wider obligations of such duty clearly align with climate concerns. These wider obligations are:

The likely consequences of any decision long term;

The impact of the company’s operations on the community and the environment; and

To maintain a reputation of high standards so business conduct.

Each of these specifically aim to take into account the environmental impact of a director and/or company decision.  

Duty to exercise reasonable care, skill and diligence.

This duty is more a general duty which links into all other director’s duties and puts a great deal of emphasis on a director being diligent towards their and the company’s decision making.

To request a copy of our in depth Guide to Directors’ Duties and Responsibilities, please speak to our Corporate and Commercial team on 0161 926 9969 or email us corporate@mlplaw.co.uk.    

You can also view our in depth blog on Directors Duties and Responsibilities here.

MLP Flex case study

Most businesses only call their Solicitor when things go wrong and they feel they have no other option. Sadly, by then, it may be too late – it’s reactive and options may be limited.

MLP Flex works proactively, our specialists identifying solutions long before problems even arise.  Our commercial approach aims to keep your options open and, best of all, it saves you time, money and stress.

The below case studies demonstrate how MLP Flex has helped clients stay ahead of the game, keep their options open and minimse the time, cost and stress of dealing with legal issues. 

Company A – without MLP Flex

Company A doesn’t want to incur the cost of ongoing legal advice, so only calls its lawyers when something goes wrong and as a last resort.

Out of the blue, a key senior employee is accused of a serious act of gross misconduct and disciplinary proceedings are necessary.

Company A tries to minmise its legal costs by dealing with the process internally. The employee is ultimately dismissed after the allegation is upheld.

Company A then receives an Employment Tribunal claim from their disgruntled ex-employer and calls its lawyer for advice.

Company A’s lawyers, charging on an hourly rate basis, advise that they have serious concerns that the claim will succeed due to considerable flaws in the disciplinary process. They advise that there is only one feasible option, which is to settle the claim.

Company A has no option but to instruct its lawyers to settle the claim. Settlement is eventually achieved following protracted negotiations, with Company A agreeing to pay significant compensation to their ex-employer.

Company A’s lawyers also recommend a full review of the employment contracts used by Company A, after it was revealed that the ex-employee left with no confidentiality protections or post-termination restrictions, enabling them to compete with Company A and poach its customers without restriction.

Company A’s overall expenditure, including hourly rate legal fees, compensation, updating its contracts and dealing with the unexpected competition from its ex-employee, runs into the tens of thousands. 

So how would MLP Flex have helped?

Company B – with MLP Flex

Company B is an MLP Flex client. It pays a fixed monthly fee for proactive and commercial legal advice.

Each year Company B undergoes a full HR Audit, which highlights any risks and vulnerabilities it may face and recommends steps for addressing these. This includes ensuring the correct policies and procedures are in place and that all employment contracts contain watertight confidentility clauses and post-termination restrictions.

Company B also receives monthly MLP Flex newsletters and attends the monthly MLP Flex Employment webinar, meaning it keeps up to date with key developments in Employment Law. 

Company B also uses MLP Flex to design bespoke training sessions for its managers, ensuring they are empowered to conduct effective disciplinary processes.

Company B also has MLP Law’s experienced Legal Experts on hand, at no extra cost, to guide it through any tricky situations it faces, receiving all of the documents and guidance it ever needs to ensure all situations are handled smoothly.

Company B therefore does not face the same issues as Company A, with the prospects of a claim being brought against them greatly reduced.

Even if a claim was to be received, Company B would have a wider range of options and can be confident of successfully defending any claims, meaning it will not end up being pressured into settling a claim by paying large compensation sums.

Company B also does not face the risk of competition from its ex-employee because the ex-employee remains bound by watertight post-termination restrictions and confidentiality obligations.

Company B faces no additional costs for dealing with the situations outlined above. It simply continuing to pay its fixed monthly fee for MLP Flex.

Contact us today on 0161 926 9969 or hello@mlplaw.co.uk to discuss how MLP Flex can help you get ahead of the game.

My internship experience at MLP Law

I spent 6 weeks during the summer of 2021 on a paid internship with MLP Law. I had approached them directly for a week’s work experience and was delighted when they offered me a paid position for the summer holidays.   I am a law student at Lancaster University and began this experience following the completion of the second and penultimate year of my law degree.

The personal value of my experience
Work experience at MLP Law has given me extensive knowledge and skills in the legal profession. In particular, the work I was given has been invaluable to me and it has given me insight into the the day-to-day skills which are needed in practice, which we do not learn on our University degree course. This experience has opened my eyes to the practical reality of being a Solicitor and given me a more in depth understanding of the law I’m being taught at University as I have now seen and participated in its execution in day to day practice.  I feel this will really assist my studies going into my final year.

The team
Most of my time at MLP was spent working alongside the Wills, Trusts and Probates team at both the Lymm and Altrincham branches. The team were welcoming and supportive of me as an individual with minimal legal experience. I was nervous about working in a Law firm – this was my first paid employment – but I found that I looked forward to going into the office every day and enjoyed the balance between the professional and friendly environment. I was treated as a legitimate member of my team throughout, with the creation of my own profile on the firm website and personal laptop for the work I completed on files. The team spent the time to train and subsequently trust me with valuable work in a way which I felt I was making a real contribution to the work being carried out. 

My training
To explain my experience more specifically, my journey began with extensive induction training and I undertook several courses.  I received certificates for passing my induction training program. Examples of the courses include, the codes of conduct of the Solicitor’s Regulation Authority, Anti-Money Laundering and confidentiality training. From the get go, I was immersed in the practical reality of being a solicitor in practice and the regulations that all members of a law firm need to follow on a daily basis.  The responsibilities and risks that the role carry were made clear. I also received training on how to use the firm’s case and matter management system- ALB. Simply being able to explore the cases on the system was valuable in that I got to see various correspondence, important documents, and any work carried out on the matter by the solicitors and extended team.  This gave me a really good understanding of how cases run from start to finish and I got to see the drafting processes, advices and client work that Solicitors carry out.

Legal admin
Having received my training, I completed many tasks as a Business Administrator for the firm. My responsibilities included raising the bills for work carried out and sending those bills as invoices to the clients. I also dealt with opening new files on the system for new clients, storage of original documents, closing the files of completed matters for existing clients and debt chasing. This type of work allowed me to gauge the process of completing cases from start to finish as well as witnessing the experience of clients at MLP with many instructing for further matters to be dealt with at this firm.  It was good to see how the firm deal with the client experience from start to finish.

Client experience
I got training and guidance on how to talk to clients face to face and how to write formal letters to clients in a law firm. This in particular was of great value to me as over the course of 6 weeks I was able to pick-up on the specific language used in practice in the legal profession. This meant that I was able to use these new skills and become confident enough to draft letters and speak to clients independently. I progressed and started doing meet and greets with clients and I found that by the end of my time at MLP Law my confidence had grown massively. I was extremely grateful to have such an encouraging and patient team around me.

Solicitor experience
I was lucky enough to be given the opportunity to work directly alongside one of the Partners and attend client meetings where I contributed either by preparing the necessary documents for the Solicitor to go through with the clients, taking attendance notes or actually witnessing Wills which clients came in to sign. My work with Wills also included making amendments to them through dictations by the solicitor as well as officially binding them once completed. I was also given the opportunity to experience other departments such as conveyancing and attend their client meetings.
Overall, the work experience and paid internship I received at MLP Law was diverse and of great value to me. Also, working here has convinced me even more that I am making the right career choice.   I would encourage others in a similar position to consider an internship as it has given me employable skills and relevant experience which will help me when I finish my degree.

If you would like to be considered for a work placement or paid internship, please get in touch and send your application and CV to alissaw@mlplaw.co.uk.

Menopause in the Workplace

The entire working population is ageing, with more of us working for longer, so it is no surprise that the number of older women in work has been steadily increasing.  In fact, around one in eight of the British workforce are women over 50.   By 2022 it is forecast that this will increase to around one in six.

Indeed, the House of Commons Women and Equalities Committee (WEC) launched an inquiry on 23 July 2021 with a deadline of 17 September 2021 for responses to the call for evidence, ‘scrutinising existing legislation and workplace practices, and asking if enough is being done to address the issue’ of almost a million women in the UK leaving jobs as a result of menopausal symptoms, resulting in women eligible for senior management roles leaving work at the peak of their career, with knock-on effects on workplace productivity, the gender pay-gap and the gender pension gap.

As the menopause (or perimenopause) usually occurs in women between their late forties and early fifties, this is having an rising impact on the face of the modern workplace. Moreover, the menopause can occur early – either naturally or as a result of surgery – and therefore also affects younger women.

With these points in mind, the effect of the menopause on working women is now a noteworthy issue for employers.  Aside from potential absences from work, related to the impact on a female employee’s health, issues of discrimination may arise.  The menopause is not specifically protected under the Equality Act 2010.  If, however, an employee is treated unfairly because of the menopause, it may amount to discrimination under the protected characteristics of sex, disability or age.

It is worth noting that the menopause is not a disability per se, therefore the condition is not directly protected, but this does not prevent the symptoms (such as anxiety/depression or urinary tract infections) from amounting to a disability in law.

Here are some examples of where potential problems could arise for employers:

● Sex Discrimination – If an employer unfairly treats a woman less seriously when considering a drop in performance, as compared to a male worker’s health condition that also cause a drop in performance.
● Sex Discrimination – Unwanted comments, jokes/banter or ridicule about a women’s menopause symptoms could amount to harassment, or sexual harassment, depending on the nature of the unwanted behaviour.
● Disability Discrimination – Not making reasonable adjustments.  For example, this might include an employer failing to record a worker’s absence because of the menopause separately from other illness absence.
● Disability Discrimination – If a worker risks being dismissed because they forgot to do a task set by their employer but they have become forgetful and confused as a result of anxiety caused by their menopause.
● Age Discrimination – Unfair treatment of an employee due to the menopause, usually something that happens in their mid-forties to early fifties, may amount to age discrimination.

A helpful way to combat any potential problems would be to introduce a specific policy covering the menopause, highlighting a sensible code of conduct that should be adopted in relation to the matter.  Employers should also ensure that any equality policy that they use is suitably comprehensive to encompass this issue. 

Specific training with managers can also be useful, in ensuring that the matter is dealt with sensitively and confidentially, with specific focus on the following topics:

● agreeing changes at work
● adopting an open culture
● appointing a menopause or wellbeing champion
● familiarity with any menopause policy
● dealing with menopause related absence from work
● performance management
● occupational health/employee assistance programme

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.

Covid Vaccination Status and Data Protection in the Workplace

September is less than a week away, meaning the return of schools will coincide with the increasing return of employees to their physical workplaces, likely resulting in an increase in Covid cases.  Indeed, Scotland is currently seeing such increases already, with the return to school having taken place over a week ago.  It is therefore clear that Covid continues to pose a risk in society generally and employers will understandably wish to impose certain measures in response to help reduce that risk.  We will therefore examine if one such measure can include keeping records detailing whether or not employees have had a Covid vaccination and the related data protection issues associated with collating that information.

It is key to note that this is not a reframing of the ‘no jab, no job’ debate.  Instead, the focus is on the ability of an employer to note the vaccination status of each member of staff and then use that information during the course of the individual’s employment (for instance, to determine access to the workplace).

Employers are certainly not obliged to check if staff have had the Covid vaccine (except in care homes from 11 November 2021, when it will be compulsory for staff to have the vaccine unless medically exempt) but it is understandable that employers may wish to know this information, not least because it assists with workplace health and safety risk assessments and helps to avoid business disruption.

In keeping records regarding the vaccination status of staff – either through the NHS Covid Pass or through other means – the employer is processing special category health data and must comply with data protection legislation.

The ICO (Information Commissioner’s Office) has released updated guidance on vaccination status checks from a data protection perspective.  In essence, to comply with data protection laws, employers are required to do the following:

● Identify the legal basis for collecting the data
● Carry out a data protection impact assessment
● Respect the principles of transparency, proportionality and security

Legal Basis for Collecting Data
The principal issue that employers should consider is what they seek to achieve by asking staff for their vaccination status.  The safest legal bases to rely upon will be compliance with legal obligations and/or ‘substantial public interest’.  This means that if the employer is trying to achieve the aim of preventing the spread of the virus and complying with its duty of care to its employees that will be more likely to be justifiable than, for example, customer or staff preference or boosting confidence.  Employers should ensure that its aims are clear and necessary and that those aims could not be met without collecting the data; it is unlikely to be able to justify collecting the information ‘just in case’.

Specific factors that should therefore be considered by employers before deciding to record employee’s vaccination status include:

● The sector the business operates in, the kind of work its staff do and the health and safety risks in its workplace –  are staff working with the clinically vulnerable or in an environment where they are more likely to encounter those infected with Coronavirus.
● The collection of this information must not result in any unfair or unjustified treatment, and should only be used for purposes people would reasonably expect.  The business should treat people fairly and if the collection of this information is likely to have a negative consequence for an individual, the organisation must be able to justify it.
● If the use of this data is likely to result in a high risk to individuals (e.g denial of employment opportunities or services) then the employer will need to complete a Data Protection Impact Assessment before it starts processing the data.

Taking these factors into account, an example where a business may be able to justify checking employees’ vaccination status would be where some roles required international travel.  In those circumstances, the employer may be able to justify requiring to know which employees have had both vaccine doses to allow it to allocate certain assignments or projects to those individuals, where international travel is necessary.

Data Protection Impact Assessment
This sets out the proposed ways that data will be processed, the risks to data subjects, and the ways in which such risks will be mitigated (e.g, by limiting the number of people who have access to the record, only keeping records for as long as they are necessary and complying with the other GDPR principles).

Transparency, Proportionality and Security

Employers need to be open with staff about:

● How they will store the information
● How long it will be kept
● Who will have access to it
● How it can be updated or corrected

Should an employer wish to undertake such vaccination status checks, they may also require to update their privacy notice to reflect that approach.

In short, employers can check and record the vaccination status of staff but it is not a step that should be taken lightly or without evidence of the decision-making process and justification for doing so in light of each business’s particular circumstances.

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.

The NHS Covid Pass

With the introduction of the Government’s new NHS Covid Pass (the Pass), an app designed to show an individual’s vaccination status or Covid test results, many employers are considering if it is a tool which they may deploy in the workplace.  It is hoped the Pass will be beneficial in the effort to suppress the spread of Covid and, consequently, provide another way of minimising business disruption.

Having been made widely available in England from 19 July 2021, the Pass is already being used for some large events (on a trial basis) and fully vaccinated individuals can use it as evidence for overseas travel.

Who can obtain a Pass?

The Pass is available to individuals aged 18 or over.  The current requirements for obtaining a pass are as follows:

● two doses of the Moderna, AstraZeneca or Pfizer vaccine or one dose of the Janssen vaccine, with the pass available two weeks after the second dose (Moderna, AstraZeneca and Pfizer), or two weeks after the single-dose Janssen vaccine,
●  a negative PCR test or rapid lateral flow test within the past 48 hours, with the pass available as soon as the test result is available, or
●  a positive PCR test within the past six months, with the pass available after self-isolation has finished and up to 180 days after taking the test

Is it appropriate for Staff?

Government guidance has described the app as helping people to ‘start to return to workplaces’, in addition to aiding their ability to travel and attend large events, like football matches and concerts.  Nonetheless, government sources are reluctant to impose or promote its use in workplaces and have denied that employers will be encouraged to use the Pass.  Indeed, the working safely guidance, which includes detailed guidance for different types of setting, only specifically mentions the use of the Pass in the guidance for events and attractions and restaurants, pubs, bars, nightclubs and takeaway services (specifically for nightclubs) and only in connection with customers rather than employees.

Therefore, until the government updates its guidance, outlining a clearer stance on the specific use of the Pass in the workplace for staff, employers should be cautious about how much it should inform the decision-making process when managing employees.  Yet, whilst there are some obvious issues about justifying its use in the workplace, coupled with data protection implications (both of which are analysed in our recent blog on Covid vaccination status and data protection in the workplace), employers could consider introducing use of the Pass as an additional safety measure for staff, especially given that the legal rules on social distancing and mask wearing have been lifted.  It may be attractive in a number of situations including:

● as an extra safety measure in settings where staff have to spend prolonged periods in close proximity to customers,
●  as part of a gradual reopening of the office, where staff could show a pass on arrival or continue working from home if they do not have a valid pass to cover that day, and
●  where employers have decided to implement lateral flow testing for staff and wish to exempt fully vaccinated individuals and those with assumed immunity from any repeat testing policy.

Moreover, the fact that the Pass also provides information regarding an individual’s immunity,  rather than focussing solely on vaccination status, could make it useful in circumstances where some employees do not want to consent to the vaccine.

In summary, as with all such measures related to managing Covid in the workplace, the fewer negative consequences for employees when participating in such schemes, the easier it will be to respond to any challenges regarding the implementation of the Pass.

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.