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Highways and public rights of way law is from time to time developed by the courts indirectly, when considering personal injury claims. In Barlow v Wigan Metropolitan Borough Council [2020] EWCA Civ 696, the Court of Appeal was requested to look at whether or not a path, over which Ms Barlow was travelling when injured, was a highway for the purposes of Wigan Metropolitan Borough Council (WMBC)’s repairing obligations. If WMBC was responsible for it, then WMBC was also liable for compensating Ms Barlow for her injuries.

The court proceedings

The procedural history of the case was that the County Court heard the trial at first instance, following which the High Court heard a first appeal, and the Court of Appeal heard the appeal thereafter. In the County Court WMBC successfully argued that it was not responsible for the path. The High Court found the opposite, rejecting WMBC’s argument that it was necessary to consider which “hat” Abram UDC (the predecessor of WMBC) had been wearing when the path was constructed.

Was the “hat” issue relevant?

The High Court was of the view that it did not matter whether Abram UDC had been wearing the hat of highway authority, or the hat of local authority providing a public amenity as it was a single legal entity. This was a surprise, as public law practitioners commonly accept the “hat” concept, across the range of public body functions (see, e.g. the recent case of R (on the application of Lancashire County Council) v Secretary of State for the Environment, Food and Rural Affairs and another and our recent article highlighting this case).

The Court of Appeal did not agree that the “hat” worn was irrelevant, and determined that the capacity in which the authority creating the highway acted was determinative. However, the Court of Appeal was of the view that, given for 80 years before Mrs Barlow’s accident, the public had been allowed to walk on the paths without restriction, there was ample evidence to support the implication or presumption of dedication at common law. The offending path had become a highway by the time of the accident, and WMBC was liable.

Long reach of implied dedication

This Judgment underlines the very long reach of implied dedication, given that WMBC may well not have considered itself liable for a situation apparently created by a predecessor public body 80 years ago.  The Judgment also underlines that the capacity in which public bodies act from time to time, remains highly relevant to untangling historic situations. Public bodies should try to retain information relating to the decisions which they might make from time to time, as this material is often highly relevant.

Our Natural Capital hub contains information and resources written by our team of experts as well as papers and online materials authored by a variety of sources including the UK Government, the UN, Conservation International and the World Forum on Natural Capital.

The World Forum on Natural Capital event website includes a wealth of information on national capital, including valuation case studies, extensive blog posts, and a video wall.

If you have any questions about Natural Capital our Agriculture team would be pleased to hear from you: please click here for their full contact details.

To access our Natural Capital hub, please click here.

Our Natural Capital hub contains information and resources written by our team of experts as well as papers and online materials authored by a variety of sources including the UK Government, the UN, Conservation International and the World Forum on Natural Capital.

Conservation International is promoting the benefits of valuing natural capital, and an accounting system it has developed to help governments calculate exactly how nature supports their economies. The site includes helpful case studies, and educational material.

To access this resource please click here: ‘Conservation International‘.

If you have any questions about Natural Capital our Agriculture team would be pleased to hear from you: please click here for their full contact details.

To access our Natural Capital hub, please click here.

Our Natural Capital hub contains information and resources written by our team of experts as well as papers and online materials authored by a variety of sources including the UK Government, the UN, Conservation International and the World Forum on Natural Capital.

The five year, £6.5m Valuing Nature Programme (funded by the Natural Environment; Economic and Social; Biotechnology and Biological Sciences; and the Arts and Humanities Research Councils, and the Department for Environment, Food and Rural Affairs) aims to better understand and represent the complexities of the natural environment in valuation analyses and decision making.

The programme will fund research related to valuation in two areas:

1. the role biodiversity and ecosystem processes play in human health
2. the links between ecosystem services and tipping points.

The extensive research available on this site includes the “Natural Capital Synthesis Reports” which define the current state of knowledge to address specific policy or practice needs in the language and format that is accessible to users; and define key gaps in knowledge that should be addressed by further research.

To access this resource please click here: ‘Valuing Nature Programme‘.

If you have any questions about Natural Capital our Agriculture team would be pleased to hear from you: please click here for their full contact details.

Draft legislation on clawback of payments under the Coronavirus Job Retention Scheme

Since the introduction of the Coronavirus Job Retention Scheme (the Scheme), it has been made clear in the guidance that HMRC will retain powers to claw back monies paid under the Scheme retrospectively if it transpires that they have been paid as a result of non-compliant or, worse, fraudulent claims.

At the end of May 2020, the Government published draft legislation which is currently subject to a technical consultation. The consultation runs until 12 June 2020 and the legislation will take effect from the date that the Finance Bill 2020 receives Royal Assent.

The legislation will apply to individuals, businesses, individual members of a partnership and employers who receive or apply for payments under the Scheme, as well as other Government initiatives such as the Small Business Grant Fund.

Draft plans

In summary, the draft legislation provides that, where a recipient is not entitled to a grant under the Scheme, or has misused it by, for example, not paying the monies to the employees for whom claims were made, the grant received will be subject to income tax at 100%. Essentially, this will mean that the full amount of the grant will be repayable.

It is clear from the draft legislation that it is possible for the clawback provisions to apply not only to intentional, fraudulent misuse of the Scheme, but also to those situations in which genuine errors have been made by applicants. Whilst this has always been intimated by the Government guidance on the Scheme, it appears as if this will be enshrined in law. One such example of a potential clawback will be where an employee has ceased to be entitled to monies under the Scheme, but their employer has continued to claim.

Key Points

Given that the legislation is still subject to consultation, there may well be changes before we see it in its final form. However, as it stands, the key points are as follows:

• HMRC will be able to investigate any claim within four years after the grant was made, with this time period being extended to six years in respect of careless behaviour, and twenty years for deliberate misuse of the Scheme.
• Employers are required to notify HMRC if they have received payment under the Scheme to which they were knowingly not entitled. There will be penalties for failure to notify HMRC in such situations.
• If, at the time HMRC orders repayment, an employer is insolvent, then directors may be personally liable if they were responsible for the management of the company, and they knew at the time the liability to pay HMRC crystallised, that the company was not entitled to the grant.
• HMRC has the ability to prosecute in situations where claims under the Scheme have been deliberately fraudulent. This is likely to be the case where, for example, employees have been required by their employer to work during furlough, in express contravention of the Scheme rules.

It would seem unfair, and much less likely, for HMRC to utilise the legislation to seek repayment where employers have made claims in good faith, and based on an interpretation of the Government guidance and Treasury Direction which is often woolly at best. However, some commentators have highlighted the more political and economic point that, after the enormous pay-outs which have been made by the Government under its various schemes, it will have an urgent need to raise funds over the next few years. It remains to be seen whether this will result in a more aggressive review of claims made under the Scheme.

A couple of household names have, in the past few weeks, indicated their intention to return monies received under the Scheme, given that their businesses have weathered the storm more favourably than anticipated originally. Although there is no indication that this will be a requirement in the forthcoming months and, in our opinion, it is highly unlikely to be so, we will watch this closely.

For the time being, and as we have been advising our clients and contacts from the outset, a comprehensive paper trail, which includes details of furloughed employees; the corresponding written agreements; the claims made under the Scheme; and wider detail regarding the company’s finances and the impact of the Scheme on stabilising its position; will all be important tools in demonstrating proper use of the Scheme in the months to come.

Working from home: preparing for the long term

Despite the staged reopening of retail, and possibly leisure and tourism, in the coming weeks and months, it is likely that office-based employees, who can carry out their jobs from home, will continue to do so for a long while yet.

Prior to the pandemic, working from home was seen as an attractive proposition by many employees. For a large number of people, this has proven to be the case, and many employers have seen an increase in productivity since the beginning of lockdown. However, the reality of homeworking has brought with it, for others, significant isolation and, rather than an increased ability to balance home and work life, the blurring of the boundaries and the seepage of work further into the evenings and weekends. This will have inevitable consequences on both employees’ mental health and their quality of work, and it will be important to address these issues in order to ensure that homeworking works as effectively as possible in the medium to long term.

We set out a checklist, below, which provides some ideas to help.

þWorking from home policy

Until recently, employers’ working from home policies were likely to be geared towards occasional agile working. Permanent working from home has now been commonplace for almost three months and is likely to continue for several months yet. Ultimately, this crisis is likely to result in more widespread, regular working from home, whether to save on premises costs, or in response to a call from employees to work more flexibly in the long term.

In the light of the above, now is the time to consider an overhaul of your working from home policy, both in terms of the practicalities (such as team communication), as well as the health & safety aspects (such as desk assessments). The other suggestions, below, could also be incorporated into the policy. We have significant experience in advising on working from home policies, so please do get in touch if you would like further information.

Health & safety risk assessments

Employers are under a duty to protect their employees’ health, safety and welfare. This is the case even where employees are working from home.

Your usual risk assessments should be updated in order to deal with the homeworking aspect. As a result, it may be that you will need to provide some online training to employees to ensure that they are working safely. It may also be wise to provide employees with an online desk assessment questionnaire which they can complete and return electronically.

Technology / equipment

At the beginning of the pandemic, sending employees home with a laptop and not much else would have been likely to be justifiable. However, the longer that home working continues, the greater the obligation on the employer to provide the appropriate equipment to carry out their role safely and efficiently. This is closely linked with the need to conduct a risk assessment, above. Whilst employers will need to balance the need to invest in equipment with the probability that at least a partial return to office working will be likely in the future. However, this does not negate an employer’s fundamental duty to ensure that employees have a safe system of work.

Daily interaction between managers and their teams

Working for days on end without contact from colleagues can be very isolating, and increase levels of anxiety. A daily catch-up call/video session with the whole team can help to keep employees feeling valued and engaged. On the flip side, some employees might find daily calls rather overwhelming – “Zoom fatigue” is definitely an ailment of the COVID-19 era. As a result, you may want to make these calls optional; a “drop-in” session where employees can join to have some contact with their colleagues if they wish. Save important announcements for those meetings which are mandatory.

Mentoring system

Particularly in the current situation, where tensions are especially high, many employees would benefit from a more pastoral contact, outside of their immediate team, to whom they can talk confidentially.

Promotion of separation between work and home life

The past couple of months have exacerbated the extended working culture – in many cases, employees are working harder than ever before, despite not having lengthy commutes which take up hours of their day. The proximity of their workspace to their home life is making it all the more difficult to switch off.

Whilst such a working pattern may have been sustainable in the short-term, a lengthier stint may weaken employees’ mental health and worsen productivity. Encourage employees to take plenty of breaks throughout the day, and finish work at a similar time, and in the same manner as they would do in the office.

Working from home: tax relief for home office equipment

During May 2020, the Treasury announced a temporary income tax and National Insurance contributions exemption in relation to the reimbursement for office equipment to enable home working. Whilst there has always been no income tax liability for those purchases made by employers in respect of equipment provided to employees for the performance of their duties (subject to certain criteria being met), a further exemption has now been introduced in relation to home working office equipment purchased by the employee and reimbursed by the employer.

In order to take advantage of this provision, the equipment must be obtained for the sole purpose of enabling the employee to work from home as a result of the Coronavirus (COVID-19), and the provision of equipment would have been exempt if it had been provided to the employee directly by the employer. The exemption is relevant to equipment reimbursed from 16 March 2020 and is in force until the end of the tax year 2020-2021.

Statutory Sick Pay for Test & Trace

An extension has been made to those categories of individuals entitled to Statutory Sick Pay (‘SSP’) under The Statutory Sick Pay (General) (Coronavirus Amendment) (No 4) Regulations 2020. Workers who have been told to isolate under the new ‘Test & Trace’ system will now be entitled to SSP for the requisite 14-day isolation period.

[CONTENT CORRECT AS AT 8 JUNE 2020]

If you would like to discuss any of the issues raised in this article or have other concerns about the impact of Coronavirus, please contact Rachael Lloyd, James Baker, or Andrew Tobey in Michelmores’ Employment team.

CORONAVIRUS STOP PRESS – Click here to keep up to date with all of our latest articles.

This article is for information purposes only and is not a substitute for legal advice and should not be relied upon as such. Please contact our specialist lawyers to discuss any issues you are facing.

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COVID-19’s disruption to the education sector has not gone unnoticed. Not only were schools forced to shut for a large number of pupils, with the exception of children of key workers and vulnerable children, but some excluded pupils and their families found themselves in limbo with uncertainty surrounding the exclusion process. As of 1 June 2020, the School Discipline (England) (Coronavirus) (Pupils Exclusions and Reviews) (Amendment) Regulations 2020  (the New Regulations) came into force clarifying the exclusion procedures to be followed in the midst of the COVID-19 pandemic.

The New Regulations concern all maintained schools, academies and pupil referral units. They will apply to all exclusions from 1 June 2020 until 24 September 2020, including exclusions occurring before 1 June 2020 which are:

• Permanent and fixed, but have not yet been considered by the school’s governing board,
• Permanent and have been considered by the school’s governing board which has chosen not to reinstate the pupil and the time limit to apply for a review of this decision has not passed.
• Permanent where a parent or pupil aged 18 has requested a review of the school’s governing board’s decision which has not yet happened.

Additionally, the exclusions listed above will remain subject to the New Regulations so long as the procedures for scrutiny have not been exhausted, even if this extends beyond 24 September 2020.

The New Regulations are based on the 2019 statutory guidance ‘Exclusion from maintained schools, academies and pupil referral units in England‘. This has been amended to reflect the temporary changes below, about which further information can be found on the Department for Education’s website.

Remote access meetings

Telephone or videoconference can be used by schools’ governing boards or independent review panels providing that the following conditions are met:

• All participants agree to hold these exclusion meetings virtually.
• All participants are able to use the technology, allowing them to hear and speak throughout the meeting.
• All the participants are able to put across their point of view or fulfil their function during the meeting.
• A fair and transparent meeting can be held remotely.

Arranging a remote access meeting

It is important that meetings are fair. Participants, notably pupils and their families, must be informed that the meeting does not need to be held virtually. Furthermore, school governing boards, arranging authorities and panel members must bear in mind that in some situations remote access meetings may present difficulties for some participants, such as someone with a disability or whose first language is not English. Here relevant equalities legislation must be complied with.

Where a meeting is held via remote access, the chair of the meeting will need to ensure that participants are able to engage using the technology proposed so that the fairness requirement is complied with. It is nevertheless possible for some participants to be physically present and for others to join using virtual means so long as the conditions for a remote access meeting listed above are fulfilled.

Timescales for meetings of governing boards

Where the governing board has not been able to meet within the original time limit this may be extended. The governing board should reassess at regular intervals whether the meeting can be held, so as to minimise uncertainty for pupils and their families as far as possible.

Meetings to consider permanent exclusions, and fixed-period exclusions resulting in the pupil missing more than 15 school days in a term should be held, where possible, within 15 school days. Where this is not possible due to COVID-19 preventing a physical meeting, or where it has not been reasonably practicable to hold a remote access meeting, the time limit will be extended to 25 days, or as long as reasonably necessary for a COVID-19-related motive. In the case of fixed exclusions resulting in the pupil missing between six and 15 days in a term, the usual 50 days period can be extended to 60 days, or as long as reasonably necessary for a COVID-19-related motive.

However, it is important to note that where the time limit for the school’s governing board meeting expired before 1 June 2020, no extension can be made, and an overdue meeting should be arranged via remote access where the conditions for such a meeting are met, or in person, where it is safe and practicable to do so.

Timescales for application for independent reviews of exclusions

Where a school’s governing board takes the decision not to reinstate a permanently-excluded pupil, the parents, or a pupil who is 18 or older, have 25 days from the date they receive the governing board’s decision in which to apply for a review of this decision, or as long as reasonably necessary for a COVID-19-related motive.

Nevertheless, as with schools’ governing board meetings, no extension can be made where the time limit for an independent review panel expired before 1 June 2020.

If you would like to discuss any of the issues raised in this article, or have other concerns about the impact of Coronavirus, please contact: Hollie Suddards, or Tom Briant-Evans in Michelmores’ Education team.

CORONAVIRUS STOP PRESS – Click here to keep up-to-date with all of our latest articles.

This article is for information purposes only and is not a substitute for legal advice and should not be relied upon as such. Please contact our specialist lawyers to discuss any issues you are facing.

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The rules on execution of Land Registry documents have changed, which will help address the challenges of working remotely. In this article we cover the practical impact of some of the key changes.

Updated Land Registry guidance

Mercury signing

On 4 May 2020, the Land Registry published guidance stating it would accept deeds signed using the “Mercury signing approach”.

The Land Registry has also produced step-by-step guidance on how to adopt this process. The key points are that each party will need to sign and have witnessed their own copy of the signature page of the document. They will then send this page via email to their conveyancer along with a complete copy of the final agreed document. The conveyancer will then combine the signed page with the document and submit the combined document to the Land Registry as one document.

All the parties must be represented by conveyancers and agree to this arrangement for it to be accepted by the Land Registry.

This method will be applicable for deeds affecting dispositions of registered and unregistered land, discharges of charges (DS3s and DS1s), and powers of attorney other than lasting powers of attorney.

Witnessing

It is important to note that the witnessing must be done in person, rather than by video call. However, the relevant legislation does not prevent a signatory’s spouse, civil partner or cohabitee from acting as a witness (if they are not a party to a deed). The Land Registry has also suggested that there is no reason why the witness and signatory cannot be separated by glass. This would allow a signature to be witnessed by someone looking through a car or house window, provided they were then able to see clearly the signatory signing.

Plans

The Land Registry has clarified that where a plan is required, that plan can be signed by the conveyancer acting as an agent using a typed signature on the plan, or the parties to the deed can type their name on the plan by way of signature before returning the final agreed copy of the deed and signature page.

Companies using the Mercury signing approach

If a company is executing by way of one director in the presence of a witness then that director needs to sign the document with the witness physically present. If the company is executing by two directors (for which a witness is not required), those directors can sign separate pages, following the Mercury protocol, without their individual signatures being witnessed.

In these circumstances it is possible to sign as part of a chain whereby the first director prints, signs and scans their signature page and the entire document to the second director and solicitor. The second director then prints, signs and scans their signature page and sends it back to the first director and solicitor.

Electronic signatures

It is worth noting that, at this point in time, the Land Registry will not accept electronic signatures on deeds affecting registered land.

Docusign

Docusign is a platform that enables the uploading of documents to a site so that they can be signed electronically by various recipients.

Care should be taken when using this method of signing as it will not apply where wet ink signatures are required and it cannot be used for Land Registry documents.

However, it can be used in the execution of certain documents, provided that the person signing the document intends to authenticate that document and the formalities relating to the execution of that document are satisfied. It is also important to note that a witness still needs to be present alongside the party signing to witness their electronic signature. As outlined above, the witness can be a family member, etc., so long as they are not a party to the document itself.

If you would like to discuss any of the topics raised in this article, please contact Lucy Smallwood, Partner in Michelmores’ Real Estate team.

This article is for information purposes only and is not a substitute for legal advice and should not be relied upon as such. Please contact our specialist lawyers to discuss any issues you are facing.

Metal detecting is something that anyone is lawfully entitled to do. However, you cannot trespass to do it.

If land is tenanted, both the tenant’s and, in most circumstances, the landlord’s consent must be obtained and vice versa if it is the land owner wanting to grant someone permission to metal detect.

That said there are limits to what you can do. Best practice is to ensure that the Portable Antiquities Scheme (“PAS”) Code of Practice for Responsible Metal Detecting in England and Wales (2017) (“Code of Practice”) is followed. If not, those metal detecting could find themselves unknowingly committing a criminal offence.

Ancient Monument and Archaeological Areas Act 1979

The Secretary of State has the power to designate sites of national importance. The Ancient Monument and Archaeological Areas Act 1979 provides the following criminal offences in connection with metal detecting:-

• It is a criminal offence to destroy or damage a scheduled monument “knowing that it is a protected monument” and “intending to destroy or damage the monument or being reckless as to whether the monument would be destroyed or damaged” (section 28).
• It is a criminal offence to use a metal detector on a protected place without the written consent from Historic England or Cadw Wales and to remove an object located by the use of a metal detector in a protected place (section 42). A “protected place” is either a “scheduled monument” or an “area of archaeological importance”.
• It is also a criminal offence to carry out unauthorised works to a scheduled monument without the prior consent of the Secretary of State (section 2).

Can you metal detect on Countryside Stewardship land?

Metal detecting is not permitted on scheduled monuments, SSSIs, and known archaeological sites on CS agreement land. On all other land in a CS agreement, landowners must make sure that metal detecting does not conflict with the requirements of the CS agreement. If metal detecting is allowed the Code must be followed.

Other offences from illegal searching (‘nighthawking’)

• Trespass – metal detecting on land without the landowner/occupier’s consent (this is a civil offence, unless trespass is on a protected site or criminal damage is caused).
• Theft – this is a criminal offence by virtue of the Theft Act 1968 – removing objects from land without the land owner/occupier’s permission.
• Dealing in Cultural (Offences) Act 2003 – it is a criminal offence to deal dishonestly in objects of historical, architectural or archaeological interest if it has been “tainted” by being excavated or removed from sites.

Treasure Act 1996 – What is treasure?

Any object, other than a coin, which is made up of at least 10% precious metal (gold or silver), that is at least 300 years old when found. The exceptions to the above (which are still treasure) are where:-

• two or more metallic objects of prehistoric date are found in the same find (i.e. at the same time) then they will still be deemed treasure irrespective of their metal content; .
• two or more gold coins are found in the same find;
• 10 or more gold coins are found in the same find but they contain less than 10% precious metal; and
• any object would previously have been a treasure trove.

Who owns treasure?

Treasure vests in the Crown, unless it is subject to someone who can establish a prior interest.

Must “treasure” be reported?

Yes. A finding of treasure must be reported to the local coroner within 14 days. Failure to report can lead to a fine and/or imprisonment.

What if something other than treasure is found?

There is no legal obligation to report finds unless they are human remains, which must be reported to the police. Best practice is to report all finds to PAS Finds Liaison Officers.

The Government’s Environment Bill (Bill), which was reintroduced to Parliament in January this year, introduces a mandatory requirement for Biodiversity Net Gain (BNG) in the planning system. The National Planning Policy Framework 2019 already requires local planning authorities to seek to minimise impacts on biodiversity and provide net gains where possible, but there is currently no standardised approach.

The principle of BNG forms part of the government’s ’25 Year Plan to Improve the Environment’ with an aim to leave the natural environment in a measurably better state than beforehand. The new Bill will require developers (subject to limited exceptions) to provide a mandatory 10% BNG, compared against a pre-development baseline, in respect of all new development under the Town and Country Planning Act 1990 (TCPA 1990), that results in the loss or degradation of habitat.

The Bill proposes to introduce a new Schedule to the TCPA 1990, which requires applicants, as part of their planning application, to gain approval from the local authority of a ‘biodiversity gain plan’. This plan must include, amongst other matters, information about steps to minimise the adverse effect of the development on biodiversity and details of the pre-development and post-development biodiversity value of the onsite habitat.

Measuring biodiversity

In order to measure biodiversity value for the purposes of a planning application, a metric produced by DEFRA, which scores different habitat types according to a predetermined biodiversity value, will be used. This value is then adjusted depending on the condition and the location of the habitat. The predicted biodiversity gain is then calculated in the same way, adding-in new biodiversity elements and new components relating to risks associated to the development.

The NFU, in its response to the Government’s consultation on BNG, has raised concern with the use of a metric, in isolation, in relation to the pre-development baseline and agricultural land. Specifically that ‘normal farm business decisions around cropping on land should not be deemed intentional degradation of habitat’ and ‘Farmers who are already delivering good environmental outputs should not be penalised by the way the metric is applied’. The Government is expected to provide and consult on guidance to assist stakeholders, and we hope that this point is carefully considered.

Maintaining biodiversity

Under the Bill, developers will have to guarantee to maintain biodiversity gains for a period of at least 30 years and longer-term protection will be encouraged, provided it is acceptable to the landowner. It is proposed that developers will sign up to conditions or obligations, or the landowner will be required to enter into legally binding ‘conservation covenants’, designed to give assurance that compensatory habitats will be maintained, in order to promote nature conservation.

Mitigating a net loss of biodiversity

If a developer is unable to mitigate biodiversity net loss on-site, it will be required to pay a cash tariff on the shortfall against net gain obligations. Whilst the thought is that meeting this gain by off-site provision should be a last resort, in practice a 10% gain may be difficult to achieve on some sites and this should be recognised. Under the proposals, this payment should ideally go towards local off-site projects, but if these are not available, then the developer may be able to buy ‘biodiversity units’ provided by the Government.

Opportunities for rural landowners

Whilst we await clarification from the Government on detail as to how a system of biodiversity credits will operate, it is possible that with such a system, there is potential for farmers to deliver the net gain, by the provision of biodiversity units on their land, which they could sell to those developments, which are unable to deliver on-site provision. If a system of biodiversity credits is to operate successfully for farmers, payment undoubtedly needs to offer incentive and funds must be available for the duration of the contract, for the unit to be managed effectively for nature conservation.

Whilst there is not yet a date that BNG will become a national mandatory requirement and further guidance is awaited from the Government, a number of local authorities have already updated planning documents. For example, since 1 March 2020, Cornwall Council has been applying a 10% net gain requirement to all major planning applications. At the time of writing, they are still working on proposals in relation to the position where off-site compensation is appropriate.

The Environment Bill is now being considered by a Public Bill Committee and is expected to report to the House of Commons by Tuesday 5 May 2020.

Update on returning to work processes

Returning to work, and what that might look like, has been the topic of the nation during this past week. Following the Government’s announcement of the possible “roadmap” out of lockdown, and the subsequent publication of the “recovery strategy”, employers have been working out how to do business in this new, socially-distanced world.

Initial “recovery strategy”

In our recent update regarding the “recovery strategy”, we set out the Government’s principles in providing a “safe” workplace, which were common to all eight of the COVID-19 Secure guidance documents for different sectors (NB there is now an additional publication directed at the transport sector). In summary, these were as follows:

1. Employees should work from home where they can, but employees who cannot work from home should return to work (obviously, this latter point would only apply to sectors currently permitted to open by the Government).
2. A COVID-19 risk assessment should be carried out, with involvement from workers/trade unions.
3. Social distancing of two metres should be maintained, wherever possible.
4. Where two-metre social distancing is not possible, transmission risk should be managed by, for example, installing physical barriers.
5. Cleaning processes should be more rigorous and more frequent, particularly in respect of high-contact objects such as door handles and printers.

The initial guidance which accompanied the “recovery strategy” is fairly basic in its detail. However, as we have seen with the guidance regarding the furloughing scheme, the Government’s approach appears to be the publication of a high-level, fairly broad-brush initial document, followed by more detail at a later date.

Publication of further guidance

Over the past week, the Government has provided further information to assist employers in their return strategy. The “guidance for employers and businesses on Coronavirus (COVID-19)” was updated on Friday 15 May 2020. Whilst some of this guidance has been in place since the start of the crisis, in order to help those employers who remained open and operational, it has been updated to reflect the wider cross-section of employees who may now be returning to work. The Government’s “good practice” checklist contains the following recommendations:

• Keep all employees updated on actions being taken to reduce risks of exposure to Coronavirus (COVID-19) in the workplace.
• Ensure employees who are in a vulnerable group (such as those who are pregnant, over 70, or with certain pre-existing health conditions) are following social distancing practices.
• Ensure employees who are in the extremely vulnerable group (such as those with certain cancers) are shielding and are supported to stay at home. We discussed in our update of 16 April 2020 that there is some inconsistency between the guidance, which states that shielded employees can be furloughed, and the Treasury Direction, which implies that shielded employees must first exhaust their entitlement to Statutory Sick Pay. Whilst the position is by no means clear, we would suggest that the Treasury Direction would take precedence over the guidance.
• Make sure managers know how to spot symptoms of the virus, and decide on a company-wide action plan to deal with a situation where someone at work is suspected of being infected. At present, the Government guidance states that those who develop symptoms whilst at work should be sent home as quickly as possible. However, the current advice is that it is not necessary to close the workplace or send all staff home unless Government policy changes. Employers are advised to keep monitoring the Government response page for the latest details.
• Ensure there are a variety of easily accessible places around the building for staff to wash/sanitise their hands. If possible, provide personal bottles of hand sanitiser for all employees, along with tissues, so that they can “catch, kill and bin” any coughs or sneezes.
• Make regular announcements to remind staff to follow social distancing advice and wash their hands regularly.
• Encourage the use of digital and remote transfers of material where possible, rather than paper format, such as using e-forms and e-banking.
• Use floor markings to delineate the required two-metre distance, particularly in those areas which would usually become crowded.
• Where it is not possible to remain two metres apart, staff should work side-by-side or facing away from each other, rather than face-to-face.
• Where face-to-face contact is essential, this should be kept to 15 minutes or less, wherever possible.
• As much as possible, keep teams of workers together (i.e. have a fixed rota of staff which remains the same), and keep teams as small as possible.
• Place Plexiglas barriers at points of regular interaction (such as reception areas).
• In terms of staff canteens, staff should be encouraged to bring their own food. Where there are no practical alternatives, meal times should be staggered to avoid overcrowding, and the social distancing and cleanliness points above should be observed.

Notwithstanding the list of suggestions proffered by the Government to ensure safety in the workplace, the Health and Safety Executive (HSE) has been clear that businesses which cannot enforce adequate measures to protect their employees should stay shut. Sarah Albon, Chief Executive of the HSE, stated that companies which could not take adequate steps to minimise the risk of spreading the virus should “individually not open”.

As discussed in our “Return to work” digest, employers not only have to ensure compliance with Government guidelines, but have to ensure that they are adequately discharging their duty of care, whilst being mindful of employees’ rights to remain away from a workplace if they perceive there to be serious and imminent danger (ss44 and 100 Employment Rights Act 1996).

Some practical suggestions

Our view is that the more you can engage with employees about the potential measures you are taking to make their workplace safe, the less likely you are to face significant push-back. In addition, it is important to consider what will work for your business – this is not necessarily a one-size-fits-all approach. Some creative thinking will go a long way, and we have seen many of our clients and contacts devise inventive ways of ensuring safety in a COVID-19 world. We set out a selection, below:

• Use of thermal imaging cameras at staff entrances, to track temperatures.
• Installation of a “click-and-collect” service for the café, ensuring the transaction does not involve the use of physical paper or money, with staggered times for collection.
• Removal of all fabric communal seating, swapping to plastic or leather surfaces which are easy to keep clean.
• A “one-in-one-out” system for toilet facilities, with an automatic disinfectant spray dispenser installed to clean in between uses.
• Adaptation of internal doors to those with automatic sensors, rather than manual handles.
• Provision of “stylus” pens for every employee, so that there is no need to touch the printer display.
• Temporary removal of access to shower facilities, but providing large face / body wipes for those cycling to work.

Now more than ever, it might be difficult for businesses to find funds to implement some of the more costly measures suggested, above. Others might wonder whether it is proportionate action to take given that the prevalence of Coronavirus (COVID-19) will, we hope, be minimised within the year. If it is possible to implement these more permanent measures, we would suggest that it is a sound investment to do so.

Whilst Coronavirus (COVID-19) may be brought under control in the medium term, the fact that we have suffered such a pandemic in the first place demonstrates that there is the possibility that something similar will happen again. The key for businesses going forward might well be to “future-proof” themselves against another “attack” of this kind; something for which, unlike terrorism or cyber security, the business world had not really prepared. Even if we are lucky enough to escape a similar crisis in the future, think about the productivity which is lost each year through the common cold. Limiting the spread through more stringent workplace practices will only be of benefit in the long term.

COVID-19 Ministerial taskforces

It was announced on Wednesday 13 May 2020 that five, ministerial-led taskforces have been established to develop work safety guidelines for those sectors which are likely to be the last to re-open – pubs and restaurants, non-essential retail, recreation and leisure (including tourism), places of worship and international aviation. These taskforces have been set up to ensure that the requisite consideration is given to the very specific challenges that these sectors will face in re-opening.

We will update you with developments.

Twitter allows indefinite working from home

Last Wednesday, 14 May 2020, Twitter announced that it would allow its employees to work from home “forever”, even once the lockdown measures are eased fully. The social media platform said that widespread working from home during the pandemic had been a resounding success. It did, however, indicate that employees would be permitted to return to the office once it reopens, if that was their preference.

The announcement follows those from Google and Facebook, both of which have stated that their staff can work from home until the end of the year.

Experts have commented that the pandemic has highlighted the benefits to employers of flexible working arrangements, many of which were reticent to allow their employees to work from home until Coronavirus (COVID-19) forced their hand. There have been widespread reports of an increase in productivity amongst those workforces which are now operating primarily from home.

Spotlight on… small businesses

On 27 April 2020, Chancellor Rishi Sunak announced a new 100% Government-backed loan scheme for small businesses.

The “Bounce Back” scheme went live on 4 May 2020, and small businesses will be able to apply for loans of between £2,000 and £50,000. The loans will be interest-free for the first 12 months, and will be provided by mainstream lenders.

To find out more information, including whether your business is eligible, please read the full article here. If you would like to discuss further, please contact Harry Trick in our Corporate team.

In case you missed it…

With the number of new announcements issued by the Government last week, it would be easy to miss some of the updates. We provide a round-up of the latest news items, below.

Extension to Job Retention Scheme

On 12 May 2020, Chancellor Rishi Sunak announced that the Government’s Job Retention Scheme (the Scheme) will continue to operate until October 2020.

At present, details of how the Scheme will operate going forward are very scant. However, it appears that the rules of the Scheme as they stand will remain in place until the end of July 2020. After this point, there are plans to allow “greater flexibility”, including the introduction of a “partial furlough” category, where employees will be able to return to work part-time, whilst continuing to be furloughed for the remainder of their normal hours. Crucially, it seems that, from August 2020 onwards, the Government will be looking to employers to foot at least some of the payroll bill. It has been intimated that at least 50% of wages will continue to be reclaimable through the Scheme, but the Government is looking to employers “to share the costs of paying people’s salaries”. For employers in sectors which have received little to no income so far this year (such as the holiday and leisure industry, due to its seasonal nature), it will be difficult, if not impossible, to find the cash to contribute in the way that the Government envisages.

We await further details in respect of the new iteration of the Scheme, which should be released by the end of May.

Annual Leave and Furlough

Employers may now require employees to take holiday whilst on furlough

The interaction between furlough and annual leave is something which has not been afforded particular clarity by the Government since the Coronavirus Job Retention Scheme (the Scheme) began.

Previous iterations

The Scheme guidance had seen multiple iterations before we had confirmation that employees were permitted to take holiday during a period of furlough. During any such holiday taken, employers would need to “top up” the 80% Government grant to ensure that employees’ normal holiday pay was paid throughout. This option was attractive to some employees, given that they would receive full pay during the holiday period.

However, others preferred to hedge their bets, saving their accrued holiday entitlement for a time later in the year when the travel industry might reopen, rather than using annual leave to continue to sit in their homes whilst on furlough.

This raised the question of whether employers could compel their employees to take annual leave during furlough, a question on which, until now, the Government has refused to be drawn. Some employees were forging through the holiday year with the majority of their annual leave entitlement intact. This could cause huge operational difficulties upon a return to normal business levels, where (particularly with a reopening of the travel industry), employees might be clamouring to take 100% of their leave in 20% of the usual time.

EU-derived provisions relating to holiday

The widely-held view was that employers could not compel their employees to take annual leave during furlough, as it conflicted expressly with the EU-derived provisions relating to holiday. These require that the primary purpose of the leave be “‘rest, play and away” – i.e. a period of rest and relaxation away from the place of work.

It followed that, if an employee was placed on furlough which, although likely to be subject to consent, was not necessarily a choice made willingly by the employee, and was akin to a “lay-off” situation as a result of the current crisis, this was not consistent with the spirit of the annual leave provisions.

Government clarification

However, the Government has now sought to clarify the position. In what is likely to be a policy decision, rather than a strict interpretation of employment legislation, it has issued guidance entitled “Holiday entitlement and pay during Coronavirus (COVID-19)”. This states:

“If an employer requires a worker to take holiday whilst on furlough, the employer should consider whether any restrictions the worker is under, such as the need to socially distance or self-isolate, would prevent the worker from resting, relaxing and enjoying leisure time, which is the fundamental purpose of holiday.”

This is perhaps not as clear as employers would have hoped. Whilst it now seems unequivocal that there is a right for employers to require employees to take holiday (“if an employer requires a worker to take holiday whilst on furlough…”), this is qualified by the words “the employer should consider whether any restrictions…would prevent the worker from…enjoying…the fundamental purpose of holiday”.

What are the practical implications?

This seems to suggest that, where an employee cannot properly utilise their annual leave in the usual way, the employer may not be able to force them to take such leave. The guidance states expressly that social distancing might be a factor in this decision. As this is something that the entire population is likely to need to continue to observe for some time, it is unclear how any employees will be able to enjoy the “fundamental purpose” of holiday and, by implication, the precise circumstances in which employers will be able to impose it.

The guidance does comment that furloughed employees are unlikely to need to take advantage of the recent expansion of the leave carry-over provisions (where it has not been reasonably practicable for an employee to take some or all of the EU-derived 4 weeks’ holiday due to the COVID-19 pandemic.it can be carried forward into the following two leave years). This is because they will “be able to take it during the furlough period“.

However, this does not give extra weight or clarification to the ability of employers to compel their employees to take annual leave during furlough, as this could relate to voluntary leave only. All that the guidance does make certain is that it would not be reasonably practicable for an employee to take annual leave during furlough where, due to cash flow issues, the employer is unable to fund the “top-up” in order for the employee to receive their normal full holiday pay.

What approach should employers take now?

Given that employers are likely to want to enforce the taking of annual leave in order to avoid future operational issues, we would suggest utilising a broad interpretation of the guidance to facilitate this. It is likely that the Government’s intention was to give employers as much flexibility as possible, although the communication has been somewhat muddled.

However, employers should be alive to the fact that employees may use the contradictory elements of the guidance to contest any unilateral imposition of annual leave. From a financial perspective, given that they will have been paid their full, normal holiday pay, there will be no monetary loss for the employer to worry about.

Having said that, the action may cause wider staff engagement issues, so any instruction to take holiday during furlough should be dealt with sensitively. There may be discontent regarding the lack of clarity and, as with previous guidance, the Government may bow to the pressure to publish revised guidelines in the coming weeks.

[CONTENT CORRECT AS AT 18 MAY 2020]

If you would like to discuss any of the issues raised in this briefing or have other concerns about the impact of Coronavirus, please contact Rachael Lloyd, James Baker or Andrew Tobey in Michelmores’ Employment team.

CORONAVIRUS STOP PRESS – Click here to keep up to date with all of our latest articles.

This article is for information purposes only and is not a substitute for legal advice and should not be relied upon as such. Please contact our specialist lawyers to discuss any issues you are facing.

Since lockdown restrictions were implemented in March, more than 450,000 people have been unable to progress their plans to move house. The Secretary of State for Housing, Communities and Local Government has set out a plan to re-start the housing market so that all buyers and renters will now be able to complete purchases and view properties in person, while estate agents, conveyancers and removal firms can return to work while following social distancing guidelines.

The plan is summarised as follows:

Estate agents’ offices can open; viewings are permitted; show homes can open; removal companies and the other essential parts of the sales and letting process are re-started with immediate effect.

New guidance to allow extended working hours on construction sites and to make the planning system operate again remotely

A ‘Charter for safe working practice’ launched by the Government and the Home Builders Federation, enabling home builders to return to work safely.

To help unlock the housing market, the Secretary of State for Housing, Communities and Local Government has announced a series of measures to get the country building homes for the future, including:

• Allowing builders to agree more flexible construction site working hours with their local council, such as staggering builders’ arrival times, easing pressure on public transport.
• Enabling local councils and developers to publicise planning applications through social media instead of having to rely on posters and leaflets, helping to unblock the service.
• Support for smaller developers by allowing them to defer payments to local councils, helping those struggling with their cash flow, while ensuring communities still receive funding towards local infrastructure in the longer term.

[CONTENT CORRECT AS AT 13 MAY 2020]

If you would like to discuss any of the issues raised in this article or have other concerns about the impact of Coronavirus, please contact Partner Louise Peters or Solicitor Ellie Wonnacott in Michelmores’ Residential Conveyancing team.

CORONAVIRUS STOP PRESS – Click here to keep up-to-date with all of our latest articles.

This article is for information purposes only and is not a substitute for legal advice and should not be relied upon as such. Please contact our specialist lawyers to discuss any issues you are facing.

Tom Torkar, our Head of the Technology & Innovation Sector, was joined by guest panellists for our webinar: The accelerated digital revolution – what does it mean for businesses?

Our experts gave their guidance and views on issues affecting businesses during the Coronavirus (COVID-19) pandemic.

The panel debated:

• Whether brave companies that use disruptive business models are still those who are succeeding
• How economic and social upheaval is forcing all manner of organisations to adopt innovative ways of working – accelerating the digital revolution
• What does this mean for the ways that businesses are servicing and engaging with their customers?