Small businesses to receive £2.2bn in funding amid coronavirus.

The government has announced that small businesses across England will receive £2.2bn funding  to see them through national restrictions imposed by the lockdown due to the coronavirus pandemic. 

The funding will be made  through two grant schemes, one for businesses that have had to close, and another scheme for further business support as a result of the coronavirus pandemic.

Courts to operate during lockdown

The Lord Chief Justice and the Senior President of Tribunals  have confirmed that the work of the courts and tribunals will be exempt from the latest restrictions in England announced on 31 October 2020. The exemption was confirmed in a message published on 1 November 2020.

In their message they urged judges and magistrates to make full use of the measures put in place to reduce footfall in courts so cases can be dealt with as efficiently as possible. They stated that ‘It is vital for the well-being of the country that the administration of justice continues to operate’.

Coronavirus (COVID-19)—BPF publishes licence to occupy

The British Property Federation (BPF) has published aLicence to Occupy to assist the NHS and associated organisations as they deal with pressures on their facilities and infrastructure  brought about by the spread of COVID-19. The Licence to Occupy is aimed at helping the NHS occupy new commercial properties on a temporary basis in the fight to combat the spread of COVID-19. 

A template of the Licence to Occupy which can be obtained from the BPF’s website seeks to make it easier for the NHS to find additional space, set up new facilities and work with multiple property owners at the same time.

The BPF has taken into consideration the speed at which healthcare providers may wish to secure commercial properties without undue delay during these unprecedented times. The template produced by BPF aims to expedite the process, having regard to the interests of both the licensee and licensor. 

Parties should seek specialist advice before adopting the terms of the template, especially as certain provisions within the template may not be suitable for certain transactions. 

Coronavirus (COVID-19) — support for businesses

In light of the uncertainty now caused by coronavirus (COVID-19) our lawyers are available to assist and provide the necessary support that your business needs in areas such as: 

Managing the relationship with your employees

Advice for businesses with cash flow problem

Redundancies and recruitment

Tax liability 

Business rate

Statutory sick pay 

New Engineering Contract (NEC) Platform Announced

The New Engineering Contract (NEC) announced that it will launch a new online platform to enable users edit New Engineering Contract (NEC) contracts. Users will be able to access, compile and edit its standard form construction contracts on the online platform. 

The new platform will be called ‘Contract Horizon’, and will be launched on 31 March 2020.

Contract Horizon will offer a similar service to the existing JCT Contracts Digital Service that deals with JCT standard form construction contracts. 

Civil claim for harassment

The law on harassment is set out in the Protection from Harassment Act 1997. The law forbids any person from pursuing a course of conduct that amounts to harassment of another, which he knows or should know amounts to harassment of the other. 

Although harassment can also be prosecuted in the criminal courts, for the purpose of this article we will only consider the civil action for harassment that may be brought by a victim against the person who is pursuing the course of conduct in question.

The 1997 Act does not define harassment, but harassment has been held to require misconduct that is oppressive and unacceptable. In order to consider a course of conduct as harassment, the conduct must involve at least two occasions. The facts of each case should be considered to determine whether the unacceptable conduct has occurred on more than one occasion. 

The type of conduct that could amount to harassment include speech, computer-generated correspondence, as well as actions (among others). It is generally not sufficient to prove harassment by showing that the conduct was unpleasant and irritating, the conduct must go beyond that and become abusive and harassing. In other words, the conduct must ‘cross the line’ and cause the other person distress. 

It should be noted that a person may also be liable for harassing a group of persons. For example, a person who embarks on a course of conduct by which he intends to persuade a group of persons not to do something that they are entitled to do or to do something that they are not under any duty to do could amount to harassment.   

The remedy that can be obtained in a civil court by a victim of harassment includes injunction restraining the wrongdoer from pursuing any conduct that amounts to harassment of the person or persons mentioned in the injunction. The victim of the harassment may also be awarded monetary damages for distress and anxiety caused by the harassment, as well as damages for any financial loss resulting from the harassment. 

Where an injunction has been granted against a person causing harassment and the person does anything he is prohibited from doing by the injunction he may be held in contempt of court and can be committed to prison and/or fined.  

Contact us for advice and information on harassment.

Lasting powers of attorney

Introduction 

Lasting powers of attorney (LPA) permits the appointed attorney to deal with the donor’s affairs and make certain decisions on behalf of the donor. There are two types of LPA (1) financial and property affairs LPA, and (2) health and welfare LPA. 

Scope of LPA 

In order to grant an LPA the donor must be over the age of 18 and must have capacity at the time the LPA is executed. A donor may appoint more than one attorney under the same LPA. If more than one attorneys are appointed the attorneys may be required to act together in making certain decisions.

Under the financial and property affairs LPA the attorney can pay the donor’s bills, sell the donor’s property, and operate the donor’s bank accounts. The financial and property affairs LPA can be used even where the donor still has capacity provided the donor does not specify otherwise. 

On the other hand, the health and welfare LPA can only be used when the donor loses capacity or the appointed attorney reasonably believes that the donor has lost capacity. Under the health and welfare LPA the attorney can make decisions concerning the donor’s medical treatment, diet, and where the donor lives. The attorney cannot make decisions concerning life-sustaining treatments unless the donor permits the attorney through the LPA. 

The donor is able to limit the powers granted to the attorney and express preferences on the LPA. Preferences expressed on the LPA are not strictly binding on the attorney.

Registration of LPA

An LPA must be registered with the Office of the Public Guardian (OPG) before it can be used. An unregistered LPA does not give the attorney any legal authority to make a decision for the donor and acting without registration can expose the attorney to liability. 

An attorney will not be liable if the attorney acts within the provisions of a registered LPA that is later discovered to be invalid, unless the attorney was aware that the LPA was invalid or knew of circumstances that terminated their authority under the LPA. 

Termination of LPA

A donor is able to revoke an LPA at any time while the donor has capacity — the donor should follow the prescribed procedure and the attorney(s) should be notified of the revocation. 

A property and financial affairs LPA will automatically terminate if the donor is made bankrupt or the donor is subject to a debt relief order. The LPA will be suspended but not automatically terminated if there is an interim bankruptcy restrictions order or where the donor is subject to an interim debt relief restrictions order. The suspension of the LPA will last for as long as the order remains in place. The LPA will also terminate when the donor dies.

The appointment of an attorney will be terminated if any of the following events occurs:

  1. The attorney dies 
  2. The attorney disclaims their appointment 
  3. The attorney becomes bankrupt or subject to a debt relief order
  4. The attorney is a trust corporation that wound up or dissolved
  5. The marriage or civil partnership between the donor and the attorney is dissolved or annulled (subject to the provisions of the LPA)
  6. The attorney loses capacity to act. 

If any of the six events mentioned above occurs then the LPA may also terminate unless the attorney affected was appointed jointly rather than jointly and severally and there is no provision in the LPA for a replacement attorney.

Brief Overview of TUPE Regulations

The Transfer of Undertakings (Protection of Employment) Regulations [TUPE] preserves employees’ working terms and conditions when a business or part of a business is transferred to a new employer. Under the provisions of TUPE the incoming business steps in and assumes the rights, responsibilities, liabilities and duties of the outgoing business. The employees of the outgoing business become employed by the incoming business on the same or similar employment terms and conditions. Any dismissal of an employee as a result of the transfer of undertaking is automatically unfair unless the dismissal was due to economic, technical or organisational reasons that required changes in the workforce.

TUPE provides important protection for employees because without TUPE protection employees could easily be dismissed whenever a business or undertaking is transferred to another employer. The TUPE regulations apply to businesses the UK. The head office of a business or its country of origin is irrelevant provided the part of the business transferring ownership (the outgoing business) is in the UK. Although public sector employees have similar protections under a code of practice, TUPE does not generally apply to transfer of undertakings from public sector to private sector.

TUPE applies to two main types of transfers:-

  1. Business transfers — Whether or not a business transfer has occurred is not always apparent. There is a transfer where the ownership or control of a business or part of a business moves from one enterprise to another. A relevant transfer under TUPE can take various forms, including a merger or an acquisition. 
  1. Service provision transfers — These relate to transfers where services are being outsourced, in sourced or assigned by a current employer to a contractor, but only with regards to employees that can be clearly identified as providing the service being transferred. Services that could be protected by TUPE include such services as office cleaning, security guards and workplace catering.

In determining whether there is a relevant transfer, the following criteria may be considered:

  • The type of business 
  • Whether there is a transfer of tangible assets 
  • Whether there is a transfer of customers 
  • Whether the majority of staff were transferred 
  • Whether there are similarities between the business activities of the incoming and outgoing businesses
  • The degree of any interruption to the business  

TUPE protection 

Not every worker is protected by TUPE. Only employees are protected — this includes employees employed immediately before the transfer or those who would have been employed if they had not been unfairly dismissed due to the transfer. Employees working abroad are also protected by TUPE if the business they work for has assets or employees in the UK. Any employee who objects to employment under the incoming employer will not be transferred and the transfer will serve as a termination of their contract. 

Duty to inform and consult 

TUPE requires employers to inform the trade union or the employee representatives of the impending transfer. The employer must provide information about the transfer and explain why the transfer is happening. The employer must also inform the representatives of the legal, economic and social implications of the transfer for the employees affected and the steps that both the incoming and outgoing employers will take in relation to the affected employees.

Employers with less than 10 employees may inform and consult directly with employees if there are no representatives in place. Employers with more than 10 employees must consult with the employee representatives. If there are no representatives then new ones must be elected through a fair and transparent process.  

The role of an incoming employer 

The new employer that steps into the shoes of the outgoing employer takes over the employment contracts of the employees, including the rights, duties and liabilities under those contracts. The incoming employer will also assume the rights and duties of any collective agreement in place prior to the transfer. The new employer becomes liable for any failures of the outgoing employer, including any breach of employment contract that occurred prior to the transfer of undertaking. 

Although the incoming employer cannot change the terms and conditions of an employee’s contract simply due to the transfer of undertaking, the incoming employer has the power to change those terms and conditions for economic, technical or organisational reasons that required changes in the workforce or workplace. Employers also have the power to dismiss employees for economic, technical or organisational reasons — the normal rules of dismissal still apply.

House of Fraser settles case with landlords

House of Fraser can now focus its efforts on rescuing its struggling business after the department store reached an out-of-court settlement with its landlords. House of Fraser would have had to defend the lawsuit in the Edinburgh Court of Session next week if it had not reached a deal with the group of landlords.

The legal challenge brought by the landlords relates to a company voluntary arrangement (CVA) which was approved by House of Fraser’s creditors in an effort to keep the department store in business, albeit, with 6,000 job losses and the closure of 31 of it 59 stores, including its flagship store on Oxford Street. 

The landlords brought the legal action arguing that the terms of the CVA prejudiced their interests and treated them unfairly. The deal between House of Fraser and the group of landlords was reached over the weekend, the terms of which are confidential. This settlement will no doubt allow House of Fraser to focus on securing investments to keep the business afloat.

Unfair Consumer Contract Terms

Consumer Rights Act 

The Consumer Rights Act 2015 is a very important piece of legislation that provides several levels of protection to consumers in the UK. The legislation came into force on 1st October 2015 and it consolidated consumer protection laws — it replaced the Sale of Goods Act 1979, Unfair Terms in Consumer Contracts Regulations 1999 and the Supply of Goods and Services Act 1982. The 2015 Act enhances and expands consumer protection that already existed under the Unfair Contract Terms Act 1977.

Consumer contracts 

The Consumer Rights Act deals extensively with the sale and supply of goods and services between traders and consumers. The sale of digital contents is also covered by the Act. The Consumer Rights Act applies to both written and oral contracts. This article focuses on unfair consumer contract terms as set out in Part Two of the Consumer Rights Act 2015. The primary purpose of this part of the legislation is to ensure that traders do not insert, into their consumer contracts, terms that are unfair in the eyes of the law. It is important to note that the Consumer Rights Act does not provide blanket protection to consumers. Although the law has provided an extensive (but non-exhaustive) list of terms that may be regarded as unfair, it is vitally important that you properly review any contract before agreeing to the terms because the law does not consider all disadvantageous contract terms as unfair. 

Meaning of unfairness 

Under the Consumer Rights Act, a consumer contract term is unfair if it causes significant imbalance in the parties’ rights and obligations under the contract to the detriment of the consumer. Thus, if the term is “one-sided” in favour of the trader and to the detriment of the consumer then that term may be regarded as unfair under the Consumer Rights Act 2015. 

Having established that the Consumer Rights Act regards certain contract terms as unfair, the natural question that must follow is which contract terms are regarded by the law as unfair. Under the 2015 Act, there are two distinct types of unfair contract terms, contract terms that may be regarded as unfair and contract terms that must be regarded as unfair. 

Contract terms that must be regarded as unfair 

Any consumer contract term that places the burden of proof on the consumer with regards to compliance by a distance supplier or intermediary with an obligation under the Distance Marketing Directive must be regarded as unfair. Distance marketing relates to the sale of pensions, mortgages and other financial services products by email, telephone, fax, mail, or online. 

The law limits the types of consumer contract terms that must be regarded as unfair contract terms (only distance sale of financial products and services fall within this category). The vast majority of other consumer contract terms may be regarded as unfair, but they are by no means automatically unfair under the Consumer Rights Act. In fact, some contract terms will not be regarded as unfair regardless of how detrimental they may appear to the consumer if the detrimental terms relate to the fairness of the price payable under the contract in comparison to the goods or services supplied or if the term of the contract in question is transparent and prominent. 

Contract terms that may be regarded as unfair 

The following are some of the terms in a consumer contract that may be regarded as unfair if they relate to:

  1. Excluding or limiting the trader’s liability in the event of death or personal injury of the consumer as a result of the trader’s act or omission.
  1. A term which permits the trader to increase the price of goods and services without giving the consumer the right to cancel the contract if the final price is much higher than the price agreed when the contract was concluded.
  1. Requiring the consumer that breaches the contract to pay a disproportionately high sum in compensation.
  1. Irrevocably binding the consumer to terms of a contract if the consumer did not have a real opportunity of becoming acquainted with the terms before the conclusion of the contract.
  1. Permitting the trader to determine the characteristics of the subject matter of the contract after it has become binding on the consumer.
  1. Excluding or limiting the rights of a consumer in the event that the event of total or partial non-performance or inadequate performance of the contractual obligations by the trader.
  1. Permitting the trader to retain monies paid by the consumer where the consumer decides not to proceed with the contract without compensating the consumer if the trader cancelled the contract.
  1. A term that makes an agreement binding on a consumer where the provision of services by the trader under the agreement is subject to a condition that depends solely on the will of the trader for its realisation.
  1. Permitting the trader to transfer the trader’s rights and obligations under the contract where the transfer may reduce the guarantees for the consumer without the consumer’s agreement.
  1. A term requiring the consumer to fulfil all of the consumer’s obligations under the contract where the trader does not perform the trader’s obligation.

A more detailed list of consumer contract terms that may be regarded as unfair can be found here. The list is not exhaustive and other detrimental terms may also be regarded as unfair. 

Effects of unfair consumer contract terms 

Contract terms that are regarded as unfair will not be binding on the consumer. However, the remaining terms of the contract will remain binding insofar as they are practical.                         

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