Legal update May 2020

Coronavirus: Update on assistance to businesses

Coronavirus Job Retention Scheme Updates

This scheme has now been extended until the end of July 2020 in its current form, before then allowing for employers to contribute to paying the salary of their workers and allowing workers to return to work part time. The furlough scheme is now due to end at the end of October 2020. For further details about the scheme and how to apply please see our coronavirus advice for employers article.

Self-employment income support scheme  

This grantwas available for online applications for the self-employed from mid-May and payments are due to be made within 6 working days of a successful application being made.

Employment

Returning to work guidelines published by the government

The government announced on 10 May 2020 that more people who are unable to work from home (and not working in specific places such as hospitality) should be actively encouraged to return to work. Following the announcement, the government published guidance on 11 May 2020 on making workplaces ‘COVID secure’ and how to return to the workplace generally, plus eight more specific guides were published relating to different workplace settings.

See our article Employer’s Guide: Returning to work after furlough leave for further details, as well as the HSE’s toolkit on how to manage and assess risks at work relating to COVID-19.

BEIS has published guidance on annual leave and holiday pay

Most employees are entitled to 5.6 weeks of annual leave per year. If an employee has been placed on furlough leave, they will continue to accrue statutory and (if applicable) contractual holiday. The government has set up a holiday calculator to assist with working out employee entitlement.

In terms of when annual leave can be taken, employers can ask employees to take leave at certain times and cancel leave already booked, as long as the employer gives enough notice. Unless the employer has the employee’s agreement, the notice must be given at least double the length of holiday that an employer wants an employee to take, before the leave starts, or at least the length of the planned holiday, if cancelling employee holiday.

During furlough leave the notice periods above also apply, but annual leave can be taken as usual, without bringing furlough to an end. If an employee takes annual leave during furlough, they will need to be paid the usual salary they would be paid for annual leave based on usual average earnings over the previous 52-weeks excluding any weeks where there was no remuneration. The employer will still be able to claim 80% of the employee’s salary for that time.

There is no statutory right to time off for bank holidays. Employers can include bank holidays as part of a workers’ statutory holiday entitlement if they choose, but do not have to do so and can give the correct notice and allow a different day to be taken later in the holiday year to compensate for the Bank Holiday day worked. An employee on furlough leave can either take the holiday as usual and have their salary topped up for that day as appropriate, or can defer the holiday until later, with the agreement of the employer.

The 5.6 weeks of statutory holiday is split into 4 weeks and 1.6 weeks, and there are some differences in the rules that apply:

• The 1.6 weeks can be carried forward into the following leave year if the worker and employer agree in writing.
• The 4 weeks cannot usually be carried into future leave years, so employers must allow for these weeks to be taken within the leave year they are accrued.

There is an exception under new legislation covering the coronavirus pandemic, so that where it has not been reasonably practicable for the worker to take some or all of the 4 weeks’ holiday due to the effects of coronavirus, that holiday can be carried forward into the following two leave years, but must be taken and not paid in lieu unless the worker leaves employment with the employer.

Employers must give workers the chance to take leave they are unable to carry forward before the end of the current leave year and should try to encourage leave to be taken in the year accrued where possible, particularly where staff are furloughed there is unlikely to be a need to carry over leave unless employers are unable to pay the difference in the government payment of salary and usual holiday pay.

Potential for right to work from home to become law

There is a possibility that a new ‘right to work from home’ will be introduced for some workers in certain circumstances, but this is yet to be confirmed. In the shorter term for those employers that do have employees working from home it is critical that these employees remain connected and the employer is able to check on their health and safety as well as their mental wellbeing.

ACAS survey details mental health difficulties of at-home workers

An ACAS-commissioned YouGov survey published this month, has found that nearly two out of five employees working from home during the COVID-19 pandemic felt stressed, anxious, or experienced mental health difficulties due to their working situation. The poll also found that one in two people working from home felt isolated and seven out of ten missed social interactions with colleagues.

See our article on the return to work after furlough leave and health and safety responsibilities of employers whether employees are returning to the workplace or are to remain at home, to ensure that you are doing what is required to look after the health and safety of your employees.

Access to work scheme updated

For those workers who are disabled and working from home, the Access to work scheme has now been updated to reflect that those disabled workers who are now required to work from home due to the coronavirus pandemic can claim financial support for this.

ACAS published guidance on disciplinary procedure during the pandemic

ACAS have also published new guidance on conducting disciplinary and grievance procedures during the COVID-19 pandemic, which makes clear that if required any procedure would still need to be carried out fairly, voluntarily and following current public health advice on social distancing and in some cases closure of workplaces. Very careful consideration should be given before commencing any such process at the current time. If you require more advice, please contact our specialist employment solicitors.

Commercial

Guidance on responsible contractual behaviour impacted by COVID-19

The Cabinet Office and Infrastructure and Projects Authority have published non-statutory guidance on how to behave in respect of commercial contracts. The overriding message is that parties to contracts should act responsibly and fairly, support the response to COVID-19 and protect jobs and the economy.

Contracts should be performed and enforced fairly to help ensure cashflow in contracts is maintained, including to pay the workforce and individuals and businesses throughout the supply chain. Where contractual performance is impossible due to the impact of COVID-19, the guidance calls for patience in trying to avoid destructive disputes or bringing about insolvency by for example allowing extra time for delivery or payment if required by the other party.

Office for Product Safety and Standards issues guidance to small-scale producers of PPE

This month the government has set out the process for small business’ and individuals looking to assist with the efforts to make PPE or supply raw materials for others to do so. First, you should ensure you can make PPE that will protect against COVID-19 by following a relevant BS/EU Standard or another technical solution.

If you do not think you can make PPE to the safety levels required, your PPE will not be suitable for protecting against COVID-19 and so you should not offer any PPE for sale or donation to the NHS. Next, you should arrange for a third party (Notified Body) to guide you and assess your PPE as safe. PPE for the NHS and other healthcare workers will be checked as safe by the HSE.

Commercial Property

Changes to identity verification and signing of deeds during the COVID-19 pandemic

Since 4 May 2020, the Land Registry has introduced some temporary changes, during the COVID-19 pandemic, to make it easier to verify a person's identity and sign deeds for land registration purposes. For example, the verification process can now be carried out by video call and by a retired legal professional, an accountant, medical doctor, teacher, or bank official, amongst other professionals.

A signature page will need to be signed in pen and witnessed in person and not video call. The signature will then need to be scanned and a PDF, JPEG or other suitable copy of the signature page will need to be sent by each party on a single email to their conveyancer, which can then be attached to the final agreed copy of a document. These changes are not intended to be permanent, but there is no indication as to how long the changes may last.

Corporate

Extension of forms available on Companies House emergency filing service

At the end of last month Companies House announced that its emergency filing service is now available for registrar's powers forms to be uploaded and submitted online. This includes rectification by the registrar of companies, rectification of a change of registered address, apply to change a company's disputed registered office address, removal of material about a director, to correct their date of birth, or to object to a request to rectify the register. It will only be available for documents where there is no current online option.

Data Protection

Guidance published for employers on workplace testing

The ICO has published guidance for employers on workplace testing and potential data protection issues. Where employees can be identified or identifiable as a result of COVID-19 testing the data being about health is ‘special category data’ requiring a good reason for being processed. For most business’ this will be ‘legitimate interests’ and extra care will need to be taken in handling the data fairly, lawfully, and transparently.

ICO details data privacy guidelines for contact tracing apps

The ICO has also set out its data privacy expectations for contact tracing apps setting out 10 key points which must be borne in mind in respect of contact tracing, namely:

• Be transparent about the purpose
• Be transparent about your design choices
• Be transparent about the benefits: Be clear about the benefits and outcomes your app seeks to achieve, from both your perspective and that of the user. Where benefits for different parties may be the subject of tension, ensure that you are clear on how you have managed these in the data protection context. As part of assessing necessity and proportionality, clearly define these parties and clarify how your solution addresses each in line with data protection requirements
• Collect the minimum amount of personal data necessary 
• Protect your users 
• Give users control  
• Keep data for the minimum amount of time, and, where appropriate, ensure the user has control over this  
• Securely process the data
• Ensure the user can opt in or opt out without any negative consequences
• Strengthen privacy, do not weaken it

Meanwhile, the European Data Protection Board (EDPB) adopted Guidelines 5/2020 on consent under the General Data Protection Regulation clarifying data subjects’ consent when interacting with ‘cookie walls’ as well as the example 16 on scrolling and consent.

Intellectual Property

How have IP services been affected in light of the COVID-19 pandemic?

The IPO reviewed its service provision again on 7 May as a result of the COVID-19 pandemic and has decided to continue with the period of interruption until at least 28 May, when this will again be reviewed. Customers will be given at least two weeks’ advance notice prior to the end of interrupted days to meet IP deadlines and applications for IP rights. Physical hearings will not be able to take place until at least 1 June 2020, but this date will be reviewed.

The European Patent Office (EPO) has advised that some deadlines expiring on or after 15 March 2020 are further extended until 2 June 2020. This extension includes deadlines for paying fees, including renewal fees but will not include EP divisional filing or the filing of some written submissions and so please check with our specialist IP solicitors if you are unsure.

All opposition oral proceedings have been postponed until at least 2 June 2020 unless they have already been confirmed to take place by videoconferencing. At the present time, the EPO intends to continue with those oral proceedings in opposition which have been scheduled to take place on the premises of the EPO after 2 June 2020. Examining Division hearings are to be held by videoconference and no longer on EPO premises unless there are serious reasons against holding the oral proceedings by videoconference. The Boards of Appeal started again from 18 May 2020. Parties and their representatives will be contacted directly and asked to inform the registry as soon as possible whether they plan to attend.

European Union Intellectual Property Office (EUIPO), which is responsible for EU trademarks and designs is extending ‘all time limits’ between 9 March 2020 and 17 May 2020, to 18 May 2020. If you cannot meet the deadline on 18 May 2020, there is a webinar available on EUIPO’s website which highlights the circumstances where parties to proceedings before the Office can obtain a second extension of their time limits or you can contact our specialist IP solicitors for further advice.

World Intellectual Property Organisation (WIPO) remains operational and without extensions to deadlines. In reality though, whilst the PCT Rules for patents do not expressly provide for time extensions they do allow delays to be excused, in certain situations. Due to the current financial challenges facing applicants, the International Bureau has relaxed their procedures for dealing with new International PCT applications filed without paying official fees, as the option to delay payment for a couple of months may help companies keep foreign filing options open beyond the 12 month priority period.

Brexit

Negotiations on the future of UK-EU relations

On 6 May 2020, the House of Commons European Scrutiny Committee published a report on Council Decision 2020/266 of 25 February 2020, which authorised the opening of negotiations on the future UK-EU relationship and annexed the EU negotiating directives.

On 19 May David Frost wrote a letter to Michel Barnier after the last round of negotiations on 15 May, to explain that he had made public the texts for the UK’s vision for future relations with the EU and the FTA it is trying to acquire. The letter in particular details where the UK has been surprised by the EU’s stance on certain pre-conditions to an FTA that do not apply to FTAs with other nations. Whilst David Frost states in his closing comments that he still believes there can be a fair FTA reached, at the moment he summarises that ‘what is on offer is not a fair free trade relationship between close economic partners, but a relatively low-quality trade agreement coming with unprecedented EU oversight of our laws and institutions’. We will keep you informed of any progress in the negotiations.

*Please note that this update does not constitute formal legal advice and should not be relied upon as such. Always ask a solicitor if you are unsure of how the law relates to your business.