Author: Zhanna Sutton

Can a will be prepared if during the COVID-19 pandemic if it is impossible to find a medical practitioner in order to confirm that the testator has the required mental capacity?

•  The testator will need to be warned that the will might be challenged.
• If the testator still wishes to proceed, the solicitors can prepare a will.

Is there a way to facilitate the witnessing of wills and codicils?

• As ‘presence’ is to involve physical presence, witnessing via video-conferencing is impossible.
• Supervising the signing of a will using electronic means is possible (if the solicitor is not acting as a witness to the will).
• It may be sufficient for witnesses to see the testator signing when they are separated by a glass window. Another key factor is having the testator in the line of sight.

Is it possible to amend an executed will in manuscript while locked down at home? What is it necessary to check to ensure that such amendments are valid? What are the risks of amending a will in that way?

• The amendments need to be legible and make sense. They need to be marked in ink or ballpoint pen (not pencil).
• To formalise the manuscript amendments the testator and both witnesses will need to execute the amendments in the same way as the will, sign or add their initials close to the amendments or to a memorandum referring to the amendments.
• The will will have to be re-executed by the testator.
• The testator will need to make a codicil.
• It is unlikely that manuscript amendments made without consulting a solicitor will comply with formalities.
• Incorrectly executed amendments will not have effect unless they obliterate the text of the original will. The obliterated text will be treated as blank.
• Additional evidence might be required if the manuscript amendments are questioned by the probate registry.

If you have a question, please do not hesitate to contact James Cohen directly on [email protected] or 0207 822 2257.

© 2020 GSC Solicitors LLP. All rights reserved. GSC grants permission for the browsing of this material and for the printing of one copy per person for personal reference. GSC’s written permission must be obtained for any other use of this material. This publication has been prepared only as a guide to provide readers with general information on recent legal developments. It is not formal legal advice and should not be relied on for any purpose. You should not act or refrain from acting based on the information contained in this document without obtaining specific formal advice from suitably qualified advisors.

 

Ban on Private Rental Evictions Extended

The government has announced an extension to the tenant eviction ban for a further 2 months. The courts are likely to follow this by extending the stay on all possession proceedings for a further 2 month, until the end of August.

Nothing has been said about the ability to forfeit a commercial tenants lease, yet. So watch this space!

Commercial Landlords – Claims against former tenants and guarantors

Commercial Landlords should not forget to ensure they serve Notices under S17 Landlord and Tenants (Covenants) Act 1995 on former tenants or their guarantors, if they want to preserve the right to recover any rent arrears from them.

Whether you are a landlord or a tenant, if you have any concerns or issues, please contact Michael Shapiro directly on: [email protected] or 0207 822 2246.

© 2020 GSC Solicitors LLP. All rights reserved. GSC grants permission for the browsing of this material and for the printing of one copy per person for personal reference. GSC’s written permission must be obtained for any other use of this material. This publication has been prepared only as a guide to provide readers with general information on recent legal developments. It is not formal legal advice and should not be relied on for any purpose. You should not act or refrain from acting based on the information contained in this document without obtaining specific formal advice from suitably qualified advisors.

 

 

On 20 May 2020, organ donation in England moved to an ‘opt out’ system which is sometimes referred to as ‘Max and Kiera’s Law’. The change means that any adult who dies in England will be considered to have agreed to be an organ donor unless this person is in one of the excluded groups or has recorded a decision not to donate. The new ‘opt out’ system replaces the old one whereby people opted in by signing the NHS Organ Donor Register.

The new law on the donation of organs after death has sparked numerous conversations on organ donation.

Why has the law on organ donation changed?

Organ and tissue donation means giving one’s organs and/or tissues after death in order to save or improve the lives of others. Organ and tissue donation is an act of great generosity, as by agreeing to donate one can save or change the lives of up to 9 people.

While around 3 people per day in the United Kingdom die waiting for an organ, many people support the idea of organ donation in principle and would be willing to donate. Unfortunately, most of them do not inform their families of that decision or make it clear by signing on to the NHS Organ Donor Register.

Who will be affected by the change?

All adults in England, who are not either in one of the excluded group or have opted out, will be affected by the change. The following people will be excluded:

• people under 18;
• people who lack mental capacity to understand the new arrangements and, thus, cannot take the necessary action;
• people who have lived in England for less than 12 months before their death; and
• people who are not living in England voluntarily.

What action will need to be taken? When will it need to be taken?

Firstly, one will need to record the decision on the NHS Organ Donor Register. There is no deadline. People can register their decision at any time.

Secondly, one will need to inform the friends and family of the decision. This is particularly important, as families of potential donors will always be consulted before the organ and/or tissue donation is made. This is done to ensure that the recorded decision is the latest known decision of the donor, take into account any particular requirements or requests of the donor and proceed in line with the donor’s faith or beliefs. Useful information about the donor’s medical, travel and social history can be collected from the donor’s family as well.

Will one’s organs automatically be donated if the person has not opted out?

According to the NHS, no automatic donations will take place. The donor’s family will always be approached to discuss the option of organ and tissue donation to ensure that the donor’s opinion is respected.

Can donors change their mind?

If the donor has recorded an organ donation decision and wants to change or reaffirm it, the donor needs to complete the ‘amend your details’ form or give the NHS a call on 0300 123 23 23.

If you have a question, please do not hesitate to contact James Cohen directly on [email protected] or 0207 822 2257.

© 2020 GSC Solicitors LLP. All rights reserved. GSC grants permission for the browsing of this material and for the printing of one copy per person for personal reference. GSC’s written permission must be obtained for any other use of this material. This publication has been prepared only as a guide to provide readers with general information on recent legal developments. It is not formal legal advice and should not be relied on for any purpose. You should not act or refrain from acting based on the information contained in this document without obtaining specific formal advice from suitably qualified advisors.

 

 

Introduction

Covid-19 has already had a significant impact on a lot of employees, some of whom have unfortunately already lost their jobs.

Whilst the Coronavirus Job Retention Scheme (commonly known as the furlough scheme) will have saved further job losses in the short term, as the scheme starts to wind down, employers will again look at their staffing requirements in the post lockdown economy. With reduced work levels and the requirements for social distancing there are likely to be further job losses. With reduced work levels and the requirements for social distancing there are likely to be further job losses.

I have been told I am at risk of being made redundant, what should I do?

Being at risk of being made redundant is stressful. However, try not to let your emotions take over. Where possible, make a note of what your employer is telling you, don’t be afraid to ask questions and take some time to consider what you are being told. You should not be forced into responding to or accepting anything on the spot.

Being at risk of being made redundant does not necessarily mean that you will necessarily be made redundant. It is all part of a process which is explained in more detail below. Being at risk simply means that there is a chance that you will be made redundant.

How does the redundancy process work?

If an employer decides that there is a need to make employees redundant, the law requires the employer to follow a process which can be summarised as follows:

1. Identify the employees who are at risk of redundancy;
2. Communicate with the all of the employees at risk of redundancy to let them know that they are at risk, and to discuss with them what information/criteria the employer is going to use in deciding who is to be made redundant;
3. Apply the criteria to determine who is to be made redundant, and meet with all of the employees at risk of redundancy on an individual basis to discuss the ongoing process (including to discuss whether that employee is to be made redundant or not); and
4. Consider whether there is another job within the organisation that is suitable for an employee who is going to be made redundant. If an employee refuses such an offer of alternative employment, it may affect their entitlement to statutory redundancy pay.

If a process similar to that above is not followed, then the employer will potentially be leaving itself open to a claim that the dismissal was unfair.

I have been made redundant – what am I entitled to?

Where you have been made redundant, the employer still needs to abide by the terms of your contract and the law. Therefore, you may be entitled to receive some or all of the following:

Statutory Redundancy Payment

If you have at least two years’ service, you are entitled by law to a payment when dismissed by way of redundancy. The amount of a statutory redundancy payment is calculated by a formula which takes into account how long you have worked for your employer, your age and your weekly wage.

Where your employer is insolvent in certain circumstances, you may be able to claim your statutory redundancy payment from the Government.

Contractual Redundancy Payment

Some employers have a policy which states that in the case of redundancy, employees will be entitled to a redundancy payment which is higher than the statutory redundancy payment. The right to such a payment may be guaranteed in the employment contract, but in most cases the employment contract will simply state that it is at the discretion of the employer as to whether such an enhanced payment is to be made.

Notice Pay

If you are made redundant, you are still entitled to notice of dismissal. The notice which your employer is required to give you may be set out in your contract of employment.

The law sets out what notice you are entitled to receive which in basic terms, is equivalent to one week for each complete year worked by you, up to a maximum of 12 weeks. Your employment contract may set out a longer notice period, but it cannot be less.

Your employer can require you to work out your notice period, but it is common for the employee to be paid a lump sum in lieu of working that period.

Pay in Lieu of Holiday

Your employer must also make an additional payment in respect of any unused holiday entitlement.

I have been asked to sign a settlement agreement – What is this?

A settlement agreement is a legally binding settlement between an employer and employee.

From your employer’s point of view, the most important part of a settlement agreement is that in it, you will be required to waive all claims you have against your employer in relation to your employment or its termination. A settlement agreement will commonly also contain other obligations on you such as not making disparaging remarks about the employer, returning employer property and keeping information confidential.

There is no legal obligation for you to sign a settlement agreement when your employment is terminating. However, an employer will commonly include a lump sum payment in the settlement agreement as an inducement to sign it (some of which may be tax free). Other inducements include an agreed reference.

How is the lump sum calculated & how does it compared to my colleagues?

This is a common concern raised by employees.

Whilst the level of payment may differ between businesses, often an employer has a formula or method for calculating the payment due.

You will need to be clear as to how the total amount being offered to you in a settlement agreement has been calculated. Commonly the settlement agreement will set out each payment separately, but your employer should be able to provide you with a breakdown if you are unclear.

I am happy to sign the settlement agreement, why do I need legal advice?

For a settlement agreement to be legally binding, you will be required to take independent legal advice on its terms. Larger employers will usually provide a list of law firms that employees have gone to in the past, but there is no requirement to use one of them. You are free to choose your own solicitor.

As legal advice is required, a settlement agreement will often provide for your employer to make a contribution towards your legal fees. The level of the contribution varies, but the firm you instruct should be able to indicate their likely fee for advising you on the settlement agreement before providing you with the advice.

If you have any employment law queries, please do not hesitate to contact David Nathan at [email protected] or on 020 7822 2247, or  Ross Waldram on [email protected] or 0207 822 2236.

© 2020 GSC Solicitors LLP. All rights reserved. GSC grants permission for the browsing of this material and for the printing of one copy per person for personal reference. GSC’s written permission must be obtained for any other use of this material. This publication has been prepared only as a guide to provide readers with general information on recent legal developments. It is not formal legal advice and should not be relied on for any purpose. You should not act or refrain from acting based on the information contained in this document without obtaining specific formal advice from suitably qualified advisors.

 

Have the time limits for taxpayer appeals been extended by HMRC?

• The time limits for appeals have been extended for taxpayers affected by COVID-19.
• COVID-19 may be a reasonable excuse when appealing against certain penalties.

What are the relieves currently available with respect to the income tax self-assessment payment on account due on 31 July 2020?

• The payment can be deferred to 31 January 2021. A self-assessment return will need to be filed by the normal filing date.
• All taxpayers have the option of deferring the payment.
• HMRC will not impose late payment penalties and interest charges for the period in question.

Are there any changes in dealing with stamp duty and stamp duty reserve tax (SDRT) during the lockdown?

• Stock transfer forms and other transfer instruments should be sent to HMRC by email rather than being posted.
• E-signatures on forms or instruments will be accepted by HMRC during the lockdown.
• HMRC will accept e-signatures on forms or instruments while this measure is in place.
• Payments of stamp duty and SDRT must be made electronically (using Faster Payment, BACS or CHAPS).
• The guidance on stamp duty and the guidance on SDRT will be updated by HMRC after lockdown.

If you have a question, please do not hesitate to contact James Cohen directly on [email protected] or 0207 822 2257.

© 2020 GSC Solicitors LLP. All rights reserved. GSC grants permission for the browsing of this material and for the printing of one copy per person for personal reference. GSC’s written permission must be obtained for any other use of this material. This publication has been prepared only as a guide to provide readers with general information on recent legal developments. It is not formal legal advice and should not be relied on for any purpose. You should not act or refrain from acting based on the information contained in this document without obtaining specific formal advice from suitably qualified advisors.

 

Further changes have recently been announced to the Coronavirus Job Retention Scheme (“CJRS”). There are currently millions of people who are part of the CJRS, so they will have a wide impact.

The changes can be summarised as follows:

Flexible working

• From 1 July 2020 employees who are on furlough will be able to return to work part time (currently an employee on furlough is not allowed to do any work for his/her employer).
• Nothing has been announced specifying how many hours an employee can work part time while on furlough, and so this is to be decided by each firm.
• An employer will need to pay the employee for the time that they are working (at their normal rate), while still being able to claim on the CJRS in relation to the employee’s normal hours that are not worked.
• Any new arrangement regarding working part time while on furlough must be agreed by the employer and employee in writing.

Closing the scheme

• The CJRS is going to close to new entrants from 30 June, which means that the final date that an employer can furlough an employee for the first time is 10 June.

Changes in payments

To recognise that the intention is to get employees returning to work, from 1 August, the level of the contribution to wages made by the CJRS will be slowly tapered.

• In July, the government will pay 80% of wages up to a cap of £2,500 as well as employer National Insurance Contributions (ER NICS) and pension contributions for the hours the employee does not work (which is the current situation).
• In August, the government will pay 80% of wages up to a cap of £2,500 and employers will pay ER NICs and pension contributions for the hours the employee does not work.
• In September, the government will pay 70% of wages up to a cap of £2,187.50 for the hours the employee does not work. Employers will pay ER NICs and pension contributions and 10% of wages to make up 80% total up to a cap of £2,500.
• In October, the government will pay 60% of wages up to a cap of £1,875 for the hours the employee does not work. Employers will pay ER NICs and pension contributions and 20% of wages to make up 80% total up to a cap of £2,500.
• The caps will be proportional to the hours not worked.
• An employer can still choose to make up any shortfall in wages itself.

The law stated in this article is correct as of 2 June 2020.

If you have any employment law queries, please do not hesitate to contact David Nathan at [email protected] or on 020 7822 2247.

© 2020 GSC Solicitors LLP. All rights reserved. GSC grants permission for the browsing of this material and for the printing of one copy per person for personal reference. GSC’s written permission must be obtained for any other use of this material. This publication has been prepared only as a guide to provide readers with general information on recent legal developments. It is not formal legal advice and should not be relied on for any purpose. You should not act or refrain from acting based on the information contained in this document without obtaining specific formal advice from suitably qualified advisors.

 

 

 

 

In May 2020, the UK Cabinet Office issued a document titled called “Guidance on responsible contractual behaviour and the performance enforcements of contact impacted by the Covid-19 emergency”.

This is an unusual document as while  it clearly says it’s not meant to replace legal rights, it does indicate that the Government may yet introduce laws that could affect contracts.

Over the past few weeks, attention has focused on contracts and either how to enforce them or get out of them. Force majeure clauses  as well as old legal doctrines such as frustration and illegality are being considered in detail to see if they can help one party or the other. Inevitably there will be litigation to come on all these areas as the precise effect will be fact dependant, may depend on the precise drafting of a contract, and there is no one size fits all answer.

Among the sectors where we have received queries are:

• landlord and tenant issues
• tuition and schools and serviced offices, student accommodation
• event bookings, such as wedding
• force majeure clauses in a multitude of contracts
• fashion procurement
• software
• serviced offices.

That might not be the end of the story. For many years, governments have passed laws which interfere with the general English law right for contracting parties to freely decide what the terms of their contract should be. This is known as “freedom of contract”.

Often these protect consumers. For example, the right to return goods ordered over the internet. Others can apply to  businesses such as when contracting on standard terms and conditions.

Even when governments don’t legislate, sometimes the Courts interfere. A departing employee cannot be restricted from competing with their former employer indefinitely because it is against public policy, a concept developed by the courts.  But courts in England have generally been reluctant to readily impose concepts found in other jurisdictions such as a general implied obligation of good faith (although some recent cases have sought to deviate from this).

The Cabinet Office Guidance might suggest that some newer concepts could be introduced as a result of COVID. It repeatedly uses the phrase “strongly encourages” when setting out what it wants to achieve.

The Guidance strongly encourages  responsible and fair performance and enforcement of contracts during the public health emergency describing the current circumstances as unprecedented and exceptional. It gives examples of reasons why contracts might not be able to be performed in the expected way (such as revised ways of working necessary to protect health and safety) and the reduction of a party’s financial resources.

It also refers to acting in a ‘spirit of cooperation’ and aiming to achieve, practical, just and equitable outcomes having regard to the impact of the other party (or parties), the availability of financial resources, the protection of  financial resources and the national interest. It sets out the objectives it is seeking to achieve in some detail and lists 15 particular activities that it strongly (their word again) encourages ranging from giving relief for impaired performance,  making payments,  returning deposits and enforcing judgments.

They also strongly encourage responsible settlement of disputes through mediation, negotiation, or other alternative disputes resolution procedures.

Perhaps, most interestingly, towards the end of the document they say that:

• the government is continuing to review behaviours in contracting… to ensure that contractual arrangements can function effectively and maximise their contribution to jobs and the economy;
• it is a rapidly developing situation, the guidance may be revised and reissued as necessary, that further measures may be taken in respect of the guidance recommendations including legislation.

So, while this is of no legal effect as present it suggests that laws may be introduced to deal with some of these matters. While it is impossible to predict whether a new law might help or hinder a particular party in a particular contractual situation or dispute, this may encourage parties to resolve matters by consent now, in case some unexpected law comes into force that decides the matter for them.  Alternatively, the suggestion of future legislation might lead contracting parties to consider delaying a resolution and to see whether anything is imposed by government which might benefit them although adopting that approach would seem to defeat the overall objectives of the guidance.

What weight, if any , that a Court might give to any actions a party takes (or does not take) in light of this guidance also remains something which may come up in the future  including if seeking to rely on a force majeure clause.

If you have any questions in relation to the above or concerns about your business, contact Clive Halperin, Head of Corporate & Commercial, directly on [email protected] or 0207 822 2220.

© 2020 GSC Solicitors LLP. All rights reserved. GSC grants permission for the browsing of this material and for the printing of one copy per person for personal reference. GSC’s written permission must be obtained for any other use of this material. This publication has been prepared only as a guide to provide readers with general information on recent legal developments. It is not formal legal advice and should not be relied on for any purpose. You should not act or refrain from acting based on the information contained in this document without obtaining specific formal advice from suitably qualified advisors.