January 2022 - MLP Law

Supplier Contract Negotiations

Price variation
I had my own personal experience of price variation early in 2021. I accepted a quote for a small external building job on my house, in January, and subsequently couldn’t get the builder to commit to a date for the job to begin. So by April, I went on to get another quote from another supplier which came back double the price of the first one and then later (but not that much later) I got a third quote which was triple the price of the first one. At this point I reluctantly had to accept that I was unlikely to get the January price again and this was down to the rapidly rising cost of raw materials due to economic uncertainty and lack of availability. Many of my friends had experienced similar situations.
 
Contracts
In the current climate, suppliers may not be able to commit to fixed prices, especially where there are long lead times between customers ordering goods and services and suppliers being able to supply them. They therefore, may insist on including a price variation clause in their contract to enable them to pass on any increases in the cost of supplying the goods and services to customers due to the increased cost of components and raw materials in their supply chain.

If you are a supplier, you would ideally like to pass through any third party price increases in your supply chain and for all price increases to be automatic.

If you are a customer, you would ideally like to be able to terminate the contract where a price increase is unacceptable or at least to know what the maximum price increase possible will be by agreeing a cap or agree to link any price increases to an index. You would like to be able to restrict the amount of opportunities the supplier will have to increase the price for instance to agree that price increases can only take place before the contract delivery date or to agree the intervals at which process increases can occur during the contract term. You would also like to agree that if the cost of supplying raw materials decreases you can apply a price variation in the other direction.
 
Our role
As in all contract negotiations, compromise is the name of the game and our job is to help you get your contract agreed in the best possible terms to protect and support the future growth of your business.

If you have any questions or queries in relation to this blog, please do get in touch – by telephone on 0161 926 9969 or alternatively by emailing Stephen, Karen or our Corporate Team on karend@mlplaw.co.uk or corporate@mlplaw.co.uk

Fear of Catching Covid at Work is not a Protected Philosophical Belief

A recent decision in the Manchester Employment Tribunal has determined that staff cannot rely upon a fear of catching or spreading Covid-19, to justify a refusal to return to the workplace.
 
Facts
The Claimant had a ‘genuine fear’ of catching the virus and, in particular, of passing it to her partner who she described as being at high risk of becoming seriously unwell. Given her position, she did not attend work and raised a claim when her employer withheld her pay.
 
Law
The complaint raised was one of unlawful discrimination, on the grounds that Covid-19 was a danger to the public and that holding that view amounted to a ‘religion or philosophical belief’ and was accordingly protected by legislation. The Judge, however, held that worries of suffering from a Covid infection and spreading it are not legally protected philosophical beliefs. This allowed the employer to withhold the pay of the individual who was unwilling to attend work.
 
Comment
Given that the tribunal’s decision does not set a wider legal precedent (due to it being a court of first instance), employers should be wary of relying on it wholesale. That said, it does provide useful guidance for employers, indicating that employees do not have an unchallengeable right to remain away from the workplace due to fears of catching or spreading Covid-19. This will be particularly relevant when the current work from home guidance is relaxed.
 
Employers should be mindful, however, of their general health and safety obligations to protect staff when at work, which would include taking sensible precautions to ensure that the workplace is Covid-secure.
 
If you would like to advice from the Employment team at MLP Law in respect of any of the issues raised here or more generally, please do not hesitate to get in touch on 0161 926 9969 or employment@mlplaw.co.uk, or follow us on Twitter @HRHeroUK.

Important Financial Changes for Probate Applications

The start of 2022 brings two new important changes to the financial side of Probate applications for both solicitors and lay applicants.

Firstly, on 1 January 2022 the Inheritance Tax (Delivery of Accounts) (Excepted Estates) (Amendment) Regulations 2020 came into force. The regulations change the reporting requirements for excepted estates, these are estates below the current Inheritance Tax (IHT) threshold of £325,000.

This regulation confirms that administrators for a person domiciled in the UK with an excepted estate, who dies on or after 1 January 2022, no longer need to complete the form IHT205 or IHT 217 (where applicable).

Guidance on identifying excepted estates has been published on GOV.UK. The Probate Registry have requested that for deaths occurring after 1 January 2022, that an application is not submitted until after 12 January 2022 in order for the current computer system to be updated.

From 12 January 2022, if you are acting for an excepted estate where the death occurred on or after 1st January 2022, you no longer need to complete and return the IHT205 (and IHT217 if applicable) form to HMCTS as part your Probate application. Instead, the Probate Registry will ask you to confirm the net value of the estate for IHT purposes, the gross value of the estate for IHT purposes and the net qualifying value of the estate.

If applicants are claiming the nil rate band (if the deceased had a late spouse or civil partner and the net qualifying value of the estate was between £325,000 and £650,000). The Probate Registry will continue to request the net value of the estate for probate purposes and the gross value of the estate for probate purposes. For deaths that occurred before 1 January 2022 then applicants should continue to use forms IHT 205 (and IHT217 if required) as before, and these will be processed as usual.

The second major change being introduced is that the Probate Registry application fee for Grants of Probate and Letters of Administration will increase from £155 for solicitor’s applications and £215 for personal applications, to a flat rate of £273 for both professional and personal applications. The government has said the rationale is to equalise the application fee for professional and person applications. This fee increase takes effect from 26 January 2022.

If you or your family require any advice or assistance to deal with applications to the Probate Registry and the related Inheritance Tax accounting requirements, then our friendly team of experienced lawyers can guide you through the legal requirements smoothly and swiftly. Call our Wills, Trusts and probate team on 0161 926 9969 or alternatively email WTP@mlplaw.co.uk to discuss your Probate questions.

Ikea Not to Pay Full Sick Pay to Unvaccinated Staff

As businesses continue to attempt to navigate the Pandemic landscape, last week saw an announcement by Ikea of its intention to cut sick pay entitlement for unvaccinated staff.  Whilst vaccinated staff will receive normal full pay (averaging £400/450 per week), when absent due to Covid or self-isolation, unvaccinated staff will only be entitled to Statutory Sick Pay of £96.35.
 
Wessex Water have adopted a similar approach, which is to be implemented this week.
 
Whilst a blunt ‘no jab no job’ approach is likely to fall foul of discrimination legislation, an approach that rewards vaccinated employees in this manner may be a useful tool for employers, who are battling great numbers of staff absences and rising costs.
 
Employers who wish to consider adopting a similar approach should not do so without first establishing a fair system to manage and process such a scheme.  For instance, a key safeguard in any such system is to ensure that the relatively few employees who are medically exempt from having the Covid vaccine are not penalised by such an approach, as this may amount to disability discrimination. 
 
Moreover, businesses would have to comply with GDPR provisions when gathering information on vaccination status, as information on employees’ health is classed as special category data.  Although employers can be assured that collating information on vaccination status to then use it to comply with obligations under employment law (such as paying sick pay) is likely to be considered legitimate under data protection laws.
 
In summary, it is likely, particularly with the problems caused to business by the easily transmissible Omicron strain, that such measures are going to become increasingly common in 2022.
 
If you would like to advice from the Employment team at MLP Law in respect of any of the issues raised here or more generally, please do not hesitate to get in touch on 0161 926 9969 or employment@mlplaw.co.uk, or follow us on Twitter @HRHeroUK.

Vaccine Refusing Care Worker was Fairly Dismissed

A recent employment tribunal decision found that the dismissal of a care home employee for refusing to be vaccinated against Covid-19 in January 2021 was fair.

Allette v Scarsdale Grange Nursing Home Ltd
 
Although the tribunal accepted that the employee had genuinely held fears and concerns about the Covid vaccine, the requirement to be vaccinated was a reasonable management instruction and she had no medical authority or clinical basis for refusing.
 
Facts
Ms Allette worked as a care assistant in a nursing home providing residential care for dementia sufferers.  
 
Early in 2021, care home staff were a priority category for vaccinations but the government had not yet mandated them in that setting.  The care home, however, decided to make it a condition of continued employment for its staff.  The care home’s position was based on health concerns for its vulnerable residents and the fact that its insurers had stated that they would not provide public liability insurance for Covid-related risks after March 2021. 
 
Ms Allette, however, did not want to have the vaccine citing various reasons, including not trusting the vaccine’s safety amid concerns that it had been rushed through without proper testing and that she had read stories on the internet about a government conspiracy.  Ms Allette also based her position on the fact that she was a practising Rastafarian, although this point was made by her only in the latter stages of her disciplinary hearing.
 
In response to Ms Allette’s refusal, the employer determined that it could not make an exception for one member of staff because not all residents could be vaccinated, the vaccine was not 100% effective, and visitors might be unvaccinated.  Ms Allette was therefore dismissed for refusing to follow a reasonable management instruction, after which she raised claims for both unfair and wrongful dismissal.
 
Law
The tribunal rejected both claims.
 
In coming to its view, the tribunal relied upon several justifications.  The first was that the mandatory vaccination policy corresponded to a pressing social need of reducing the risk to the care home’s residents.  The tribunal also noted that, while A was genuine in her fear of and scepticism about the vaccine, that fear and scepticism was unreasonable in the circumstances, since she had no medical authority or clinical basis for not receiving the vaccine.  Moreover, the fact that the care home was a small employer with a legal and moral obligation to protect its vulnerable residents, was also a factor.
 
It was therefore reasonable, the tribunal decided, for the employer to conclude that an employee who was merely sceptical of the official advice did not have a reasonable excuse for refusing to follow the management instruction to have the vaccine.  In addition, the tribunal found that the dismissing manager genuinely did not believe that A’s refusal was connected with religious belief, given the way in which she belatedly raised this point. 
 
In these circumstances, dismissal was within the range of reasonable responses.
 
Comment
This is a decision at first instance and should therefore be viewed as guidance, rather than concrete law, but it does certainly give us an insight into the type of considerations that Employment Judges are likely to take into account in cases of this kind.  It is also notable that this employer was a care home and that mandated vaccines for staff did, in fact, become law after Ms Allette’s dismissal.
 
Nonetheless, the decision would seem to support the fact that employers are not expected to become medical experts on the pros and cons of the vaccine but, instead, can take a considered view as to what is best for their clients and their business, within the context of what is generally known about Covid and the vaccine. 
 
Moreover, the size and resources of the business and commercial concerns (for instance, the potential effect on the care home’s liability insurance) are also going to be relevant.
 
Ultimately, as the case is specific to its facts, we would always advise that legal advice is sought before taking any similar action in your business.
 
If you would like to advice from the Employment team at MLP Law in respect of any of the issues raised here or more generally, please do not hesitate to get in touch on 0161 926 9969 or employment@mlplaw.co.uk, or follow us on Twitter @HRHeroUK.