COVID-19 force majeure

COVID-19 Force Majeure and Frustration

COVID-19 has sent shockwaves throughout the business world. For some businesses the impact has been severe and they will find it difficult or impossible to perform contracts entered into before the onset of the pandemic.

In this blog we provide an overview of how businesses may be able to rely on force majeure or the doctrine of “frustration” so as to avoid liability for failing to perform their obligations as a result of COVID-19.

Contractual Position

If you are working under a contract governed by English law the starting position is that you must perform that contract. So, even if you are affected by COVID-19 you must still perform that contract and if you fail to do so you will be liable. There are two key exceptions to this rule: the operation of any force majeure clause in your contract and the common law concept of frustration.

COVID-19 Force Majeure

Unlike in other jurisdictions, English common law or statute does not recognise force majeure. So if your contract does not contain a force majeure clause you cannot use force majeure as a means to avoid liability for non-performance.

If your contract does contain a force majeure clause then you will need to check it to see how it deals specifically with each party’s rights and obligations. Key factors to consider are set out below.

Is COVID-19 covered?

Assuming COVID-19 is not specifically covered as a force majeure event, check if it is the type of event that would fall under general force majeure wording (e.g. pandemic or similar wording), or whether there has been a government decision or administrative action preventing performance that meets the political interference language which is commonly included in definitions of force majeure.

Should the party that wishes to claim force majeure have guarded against COVID-19?

Check if the contract excludes events that could have reasonably been provided against, avoided or overcome. In the COVID-19 context, the current pandemic is not likely to be foreseeable. On the other hand, parties who elected to enter contracts with reasonable knowledge of the virus’s potential consequences, such as in January of 2020 when the virus began to attract attention in China, may have a more difficult foreseeability argument.

Is COVID-19 the true reason for not being able to perform the contract?

The party that is seeking to rely on force majeure must usually establish that the force majeure event has prevented or hindered it from performance of the contract. This is mostly a factual question but, again, will also turn on the exact wording of the clause. For example, some force majeure provisions require performance to have been rendered impossible, so the burden on, for example, a contractor to show that it could not have sourced staff, equipment or materials from elsewhere will be high. Generally, force majeure clauses are not so generous as to offer relief where services or goods will simply be more expensive to perform or obtain.

Mitigation

The party that is claiming force majeure relief is usually under a duty to show that it has taken reasonable steps to mitigate or avoid the effects of the force majeure event. Check whether being able to rely on force majeure is conditional upon you mitigating the effects of COVID-19.

Notice requirements

Parties will wish to ascertain whether prompt notification is a contractual condition precedent to relief. In that situation, a failure to notify in the prescribed manner will result in a party being unable to rely on the provision. In other cases, a failure to notify will not prevent a party from relying on a force majeure provision and the only consequence will be a potential damages claim (if the other party has suffered a loss). The courts have not always taken a consistent approach to the interpretation of notice provisions, and clearly the safest course of action is to ensure strict compliance with any notice provisions in the prescribed manner and as soon as possible

What are the consequences of establishing COVID-19 force majeure?

In most contracts, establishing force majeure will lead to relief from performance, thereby avoiding the risk of a default termination, and an extension of time to target dates. Commonly, parties bear their own costs arising from any force majeure delay but there are exceptions where compensation may be payable after a certain duration or certain costs are payable from one party to another. Extended periods of force majeure can lead to a right for one or more parties to terminate the contract. If the parties do not wish this to happen, it is important to engage in discussions sooner rather than close to the deadline. It may be preferable for these to be held on a without prejudice basis.

COVID-19 Frustration

In the absence of a force majeure clause, a party to a contract may be able to rely on “frustration”. Frustration is a common law right that allows a party to be discharged from its contractual obligations if a change of circumstances makes it physically or commercially impossible to perform the contract or would render performance radically different from that agreed to when the parties entered into the contract. This test may be satisfied if the commercial purpose of the contract is no longer achievable. Delay caused by COVID-19 could in principle be a frustrating event, depending on the nature of the contract in question and the length of the delay.

The focus will be on the parties’ specific contractual obligations and whether they have ‘radically changed’ as a result of the spread of COVID-19 to the extent that requiring a party to comply with its strict contractual obligations would mean requiring it to do something fundamentally different from that which it originally promised to do. In other words, it will be important to identify the consequences of the pandemic on the parties’ ability to perform the specific contract in question. It is unlikely to be sufficient that circumstances have changed in society generally or that performance of the contract has become more onerous or expensive or even uneconomic.

Consequences of frustration

Frustration discharges a contract meaning that all current and prospective rights and obligations are cancelled. All sums paid by a contracting party before the frustrating event will be repayable, subject to the court’s discretion (broadly) to give credit for expenses incurred or benefits provided by the other contracting party.

If you have any questions or need help with any COVID-19 force majeure or frustration issues please contact Neil Williamson or call us on 0203 637 6374.


Furlough EM Law

COVID-19 Furlough Job Retention Scheme

In this blog we explain what furlough leave is and how the Job Retention Scheme introduced by the Government as a result of COVID-19 can help employers and employees.

Please bear in mind the situation is fluid and if you would like advice around furlough leave or any other aspects of the COVID-19 Job Retention Scheme please contact one of our employment lawyers.

Background

As a result of the economic impact of the COVID-19 pandemic, the Government has introduced the Coronavirus Job Retention Scheme. The scheme is intended to avoid redundancies by alleviating the pressure on employers to continue paying wages in full during the crisis period.

The scheme enables an employer and employee to agree to the employee being put on furlough leave i.e. a period of leave during which the employee is not required to work. The employer can then recover a proportion of the employee’s salary from HMRC. The level of reimbursement allowed will be the lower of 80% of wage costs or £2,500 per calendar month.

Once it is up and running the scheme will be backdated to 1 March 2020. The scheme will be open for three months and then extended if necessary. The Government expects the scheme to go live by the end of April 2020.

Which staff are included in the Job Retention Scheme?

Employees

The following individuals are covered by the scheme provided they were on the employer’s payroll on 28 February 2020:

  • Full-time employees.
  • Part-time employees.
  • Employees on agency contracts.
  • Employees on flexible or zero-hour contracts.

Employees who were made redundant since 28 February 2020 can qualify if they are re-engaged by their former employer.

Self-employed

The self-employed are not covered but a scheme is being set up to provide them with similar rights.

Does the employee have to be at risk of redundancy to be covered by the scheme?

The precise circumstances in which an employer can put employees on furlough leave remain unclear but it seems that the scheme is intended to cover employers who, without the scheme, would need to drastically cut their payroll as a result of the crisis, either through lay-off or redundancy. We will need to hear more from the Government about what evidence HMRC may require but we believe it is unlikely that employers will need to provide anything substantial to back up their claims. However, the Government has stated that it will retain the right to retrospectively audit all aspects of the scheme with scope to claw back fraudulent or erroneous claims.

Can you put employees on long-term sick leave on furlough leave?

Government guidance suggests that employees who are on sick leave or self-isolating should receive statutory sick pay (SSP) but can be furloughed once they have recovered or are no longer self-isolating.

It seems likely therefore that employees who are on long-term sick leave and have exhausted SSP will not qualify for furlough leave until they are fit for work.

Where an employer is selecting which employees to designate as furloughed, they must be mindful of the risk of discrimination if selection is linked to a protected characteristic such as disability.

Implementing furlough leave

What steps must employers take?

Government guidance states that employers should discuss the proposal with staff and make changes to the employment contract by agreement. It is a condition of eligibility for reimbursement that furlough leave is confirmed to the employee in writing.

Employers will need to:

  • Decide which employees to designate as furloughed employees.
  • Notify furloughed employees of the intended change.
  • Consider whether to consult with employee representatives or trade unions.
  • Agree the change with the furloughed employees in the form of a “furlough agreement” (more on this below). Most employment contracts will not permit an employer to reduce an employee’s pay, provide them with no work and change their employment status, without agreement. However, faced with the alternatives, which are likely to be unpaid leave, lay-off or redundancy, the majority of affected employees are likely to agree to be placed on furlough leave.
  • Confirm the employees’ new status in writing.This is an eligibility requirement for accessing the subsidy, and a record must be kept of this correspondence.
  • Submit information to HMRC about the employees that have been furloughed and their earnings through the new online portal, expected to be operational by the end of April 2020.
  • Ensure that the employees do not carry out any further work for that employer while they are furloughed.

Furlough Agreement

It is important that the agreement between the employer and employee for the employee to be placed on furlough is carefully drafted as it will amount to a variation to the employee’s employment contract. As well as covering rights to pay during the furlough leave itself, the agreement should address other benefits such as pension rights and bonus entitlement.

Deciding which employees to put on furlough leave

An employer could initially ask for volunteers. However, in some cases an employer may receive more volunteers than it wants to furlough. The procedure an employer follows to decide which employees to furlough may depend on its current financial situation. If the employer needs to very urgently furlough employees or make them redundant in order to be able to continue to trade, a limited selection procedure carried out on an urgent basis is likely to be acceptable. However, where an employer does not have any immediate financial concerns, it is likely to be more reasonable for it to follow a more comprehensive procedure in a similar way to redundancy scoring

It may seem unfair that some employees will be required to continue working, potentially increasing their risk of infection if they are unable to work from home, and others will be permitted to receive a substantial proportion of salary and not be required to do so. However, provided the employer has used appropriate, non-discriminatory criteria to choose who is granted furlough leave, it is possible for an employer to lawfully choose to furlough only part of the workforce.

Will employers need to collectively consult if they intend to put 20 or more employees on furlough leave?

The short answer is “yes” - the employer will have a duty to inform and consult appropriate employee representatives but this is a complex issue in these circumstances and what the employer should do depends on the employer’s position. If you are considering putting 20 or more employees on furlough leave please get in touch with us to discuss the best way forward.

Do employers have to top up the remaining 20%?

Employers are entitled to continue paying full pay during furlough leave, but they are not obliged to do so. If they do top up, they can only claim back employer national insurance contributions and minimum auto-enrolment payments up to the cap.

Withholding 20% of an employee’s salary will, however, amount to breach of contract and unlawful deduction of wages unless the employee gives their consent. It is expected that the majority of employees will consent since furlough leave is a better alternative than unpaid leave, lay-off or redundancy.

How does an employer make a claim to HMRC for reimbursement?

To claim, the employer will need to submit:

  • The employer’s PAYE reference number.
  • The number of employees being furloughed.
  • The claim period (start and end date).
  • The amount claimed.
  • The employer’s bank account number and sort code (UK bank account)
  • A contact phone number.

Employers can only submit one claim at least every three weeks, which is the minimum length an employee can be furloughed for. Claims can be backdated to 1 March 2020 if applicable.

Reimbursement will be paid via BACS payment to the nominated bank account.

The claim can only be made at the point at which the employer runs payroll or in advance of an imminent payroll because actual payroll amounts need to be submitted.

What can the employer claim back?

Employers can claim up to the lower of 80% of usual monthly wage costs or £2,500 per employee, plus the associated employer national insurance contributions and minimum auto-enrolment employer pension contributions.

Fees, commission and bonuses should not be included in the calculation.

The 80% calculation is based on the employee’s gross salary at 28 February 2020.

Auto-enrolment pension contributions and employer’s NICs can be reclaimed in addition to the cap.

The sum paid to the employee during furlough leave is subject to the income tax and national insurance in the usual way.

The reimbursement is made to offset those deductible revenue costs and should be treated as income in the business’s calculation of its taxable profits for income tax and corporation tax purposes, in accordance with normal principles.

If you have any questions or need help with any COVID-19 furlough issues please contact Rhodri Thomas, Helen Monson or Imogen Finnegan or call us on 0203 637 6374.


COVID-19 Employment Law London EM Law

COVID-19 Employment Law Issues

COVID-19 has put unprecedented pressure on businesses and their staff and has raised various employment law issues. An awareness of government updates and employment law will help you weather the storm. Here are some key points although please bear in mind the situation is fluid:

Coronavirus Bill 2019-2021

On 17 March 2020, the government published details of the Coronavirus Bill 2019-2021 and set out proposed emergency legislative measure to address the outbreak.

Important employment law issues raised include:

  • Employees and workers will be able to take emergency statutory volunteer leave in blocks of two, three, or four weeks’ unpaid leave. A UK-wide compensation fund will be established to compensate for loss of earnings and expenses incurred at a flat rate for those who volunteer through an appropriate authority.
  • Changes to statutory sick pay (SSP) include: allow for it be claimed from the first day of incapacity, which will have retrospective effect from 13 March 2020; enable employers with fewer than 250 employees to reclaim SSP paid in respect of the first 14 days of COVID-19-related sickness absence, which will have retrospective effect from 14 March 2020.

Statutory sick pay (SSP) and COVID-19 Employment Law

SSP is the right of all employees to receive payment from employers when they are unable to work due to illness. Many businesses offer sick pay policies in employment contracts.

In order to qualify for SSP an employee must be absent from work due to incapacity. Where an employee has not, at the point they are suspended, either been diagnosed with COVID-19 or exhibited symptoms, then it is unlikely that their absence will meet the definition of day of incapacity in the Social Security Contributions and Benefits Act 1992.

The deemed incapacity rules in the SSP regulations have been extended to explicitly include employees who are self-isolating or socially distancing following government guidance.

Is an employer entitled to send an employee home from work to self-isolate?

If the workplace and the nature of the role allow for remote working then this may provide the employer with an alternative to suspension for the purposes of self-isolation.

There may be a range of reasons that an employer may wish to send an employee home to self-isolate. The employer may be acting out of an abundance of caution, the employee may have had contact with someone who has been infected, or they may be exhibiting symptoms.

If there is an identified risk that an employee may have been exposed to COVID-19, then it is understandable, in light of an employer’s duty to protect the health and safety of other employees.

From an employment law perspective, the employer should consider whether it has an express right to require the employee to stay at home. If not, the question is then whether there is an express or implied right for the employee to attend work in these circumstances. It is unlikely to be a breach of implied duties to require an employee to stay at home in these circumstances, assuming there are reasonable and non-discriminatory grounds for concern, and the matter is dealt with appropriately, proportionately and sensitively.

What pay are employees entitled to when sent home?

Where the employer is able to continue work from home then, subject to any contractual provision to the contrary, they will continue to be entitled to their normal rate of pay.

If they are not able to do so then consideration would need to be given to the terms of the contract of employment, although most employment contracts will not provide for this type of scenario.

If an employee has been advised by government guidance to self-isolate or be socially distant then they will fall within the new deemed incapacity rules for SSP discussed above. In those circumstances is it likely that the employer could treat them as being on sick leave and pay them SSP (subject to any contractual sick pay policy).

Where an employee refuses to attend work due to fears about coronavirus, what action can the employer take and what pay are they entitled to?

If the employee can work from home, this may well resolve the issue. If not, the employer would need to consider the current public health advice, the specific reason that the employee is concerned about attending work and whether it would be discriminatory to refuse home working, take disciplinary action, or withhold pay.

If there is no discrimination angle, and the public health advice is such that the employee could reasonably be asked to attend work then it is possible that the employee could be investigated for misconduct in terms of refusal to follow a reasonable management instruction, and their unauthorised absence.

If the absence is unauthorised then the employee would likely not be entitled to pay as they are not willing to attend work.

Returning from ‘high-risk’ countries

As matters currently stand, government guidance does not advise self-isolation for those returning from countries with a high incidence of COVID-19. This means, arguably, an employer requiring an employee to self-isolate because they have returned from a high-risk country, will need to pay the employee full pay.

This does not seem to reflect the government’s intention. However, given the link between public health guidance on self-isolation and SSP it seems to represent the legal position.

Can we change our enhanced sick pay scheme to provide that only SSP is payable in the event of absence due to COVID-19?

Where the relevant employee’s sick pay entitlement is out in their contracts, to amend this will amount to a variation of contract. There are a number of ways an employer could achieve this:

Consent – employers could seek written consent of the relevant employees to the contractual change. While employees are unlikely to agree to a change in terms that is not in their favour, they may be willing to do so where their agreement may help the employer to stay in business.

Dismissal and re-engagement - where employees are unwilling to consent to a change in their contractual sick pay entitlement, an employer can consider dismissing them and offering them re-engagement on the revised terms. Even if the affected employees accept the new terms, they will be entitled to claim unfair dismissal in respect of termination and wrongful dismissal, if the employer does not give them the required notice to terminate.

Unilaterally imposing the change – employees may respond to a change that is imposed on them unilaterally in a number of ways. They may “work under protest” and bring claims for breach of contract or unlawful deductions from wages. Alternatively, they may resign and claim constructive dismissal.

Where the relevant employees’ contracts specify that their sick pay entitlement is set out in the employer’s separate sickness absence policy, which may be amended from time to time, it will be much easier for an employer to make the change. The employer should confirm the change in writing to employees and ideally ask them to provide written acknowledgment.

Lay-off and short-time working

Laying off employees means that the employer provides employees with no work (and no pay) for a period while retaining them as employees; short-time working means providing employees with less work (and less pay) for a period while retaining them as employees. These are temporary solution to the problem of no or less work. However, if employees are laid-off or put on short-time working in circumstances where the employer does not have the contractual right to do so then the employer will be in fundamental breach of contract entitling the employee to resign and claim constructive dismissal.

A better option is likely to be the Coronavirus Job retention Scheme which will pay employees' salaries of up to £2,500 a calendar month as long as they are kept on the payroll.

COVID-19 Employment Law: Coronavirus Job Retention Scheme

The introduction of a new Coronavirus Job Retention Scheme (furlough leave) was announced by the government on 20 March 2020. Under the scheme, all UK employers, regardless of size or sector, can claim a grant from HMRC to cover 80% of the wages costs of employees who are not working but kept on the payroll ("furloughed"), of up to £2,500 a calendar month for each employee. Employers can choose to top up the remaining 20% if they wish.

The Government will provide access to the scheme through an online portal which is currently under development. Once the scheme goes live it will be backdated to 1 March 2020. The scheme will be in place for at least 3 months. 

It is understood that the scheme will apply in respect of all employees on PAYE, including those on zero-hours contracts.

Employers cannot require employees to be furloughed unless the employment contracts allow for this which is highly unlikely. It is therefore advisable for employers to obtain the agreement of the employees to be furloughed within a properly drafted furlough agreement. For those employees who do not agree then you are left with either imposing furlough on them (which would amount to a breach of contract) or making them redundant.

We have published a separate blog dedicated to the COVID-19 Job Retention Scheme here.

If you have any questions or need help with any COVID-19 employment law issues please contact Rhodri Thomas, Helen Monson or Imogen Finnegan or call us on 0203 637 6374.


Commercial law firm London EM Law

Terminating a Contract - Tread Carefully

Terminating a contract may be the way forward especially when the other party has blatantly failed to meet its obligations. But don’t fall into the trap of thinking that terminating a contract is straightforward. Giving the correct notice and reasons for terminating a contract is a process to be carefully navigated if the adversely affected party wants to claim all possible compensation.

Examples of improper approaches to terminating a contract can be dramatic. In the case of Phones 4u Ltd v EE Ltd [2018], EE denied themselves a £200 million claim because of a badly drafted termination notice. Given the potential consequences it is generally assumed that an aggrieved party will take legal advice before going ahead with termination.

Most importantly you must act. Even a repudiation, meaning the most serious breach of contract, does not automatically end a contract. Termination rights can also be lost by delay. By the time an aggrieved party decides to assert itself it may be too late.

Things to be most wary of when terminating a contract

Terminating a contract without the right to do so

  • By terminating a contract you are refusing to perform any duties which may arise after termination.
  • If not justified by a contractual or common law right this refusal to perform is usually itself a repudiation.
  • The other party could accept the repudiation, terminate the contract and sue for damages.

Giving the wrong grounds for termination

This is what happened in the Phones 4u In that instance EE terminated its contract with Phones 4u on the basis of its rights to terminate for the other party’s insolvency. EE did not explicitly state in its termination notice that Phones 4u were in breach of contract. Even though EE had reserved its rights in the termination notice the judge nevertheless ruled that EE’s £200 million claim against Phones 4u for breach of contract could not now be pursued.

Not following the contractual termination procedure

  • The basic rule is that a party serving a notice to exercise a right must comply strictly with the contract.
  • Failing to comply may render a termination invalid even if the requirement is meaningless or pointless.
  • In the case Zayo Group Internaitonal Ltd v Ainger and other [2017] the court ruled that a requirement to leave the termination notice at a party’s old address was still valid. Because the notice wasn’t left at the old address on time the claim failed.
  • Serving an ineffective notice of termination could amount to a repudiatory breach as it communicates an intention to stop performing and may be accompanied by such action.

You can't take it back

It is also important to note that you cannot take back a termination notice:

  • Serving a termination notice communicates a party’s decision to exercise its termination right, which is not compatible with keeping the contract alive.
  • In two employment cases, the employee who gave a clear unequivocal notice to resign was then unable to withdraw that notice after an hour in the case of Riordan v War Office [1959] and a day in Southern v Frank Charlesly & Co [1981].

Terminating a Contract - Common Law Rights

Aside from express or implied termination clauses it is also important to consider common law rights when contemplating grounds for termination. The common law gives every contracting party the right to terminate on repudiation. A repudiation comes in different forms:

  • Breach of a condition.
  • Repudiatory breach of an intermediate term (or innominate term).
  • Renunciation, defined as, a party’s outright refusal to perform all or substantially all its obligations under a contract.
  • Impossibility, if a party makes it impossible to perform the contract.

Understanding repudiatory breaches of intermediate terms is key when assessing your possible right to terminate a contract. Generally speaking, a breach of an intermediate term is repudiatory if it deprives the aggrieved party of substantially all the benefit of the contract. This deprivation must also coincide with the time that the aggrieved party chose to terminate.

Final word

Terminating a contract must be done carefully if the aggrieved party wants to retrieve as much compensation as possible. As we say above the consequences of not doing so can be severe. Please get in touch with Neil Williamson or Joanna McKenzie if you need any help.

 


Statement Of Employment Particulars EM Law London

Statement of Employment Particulars: New Requirements for Employers

A statement of employment particulars is a written form that an employer must give an employee when the employee first starts working for the employer. It sets out the bare bones of the employment contract (more on this below).

From 6 April 2020 the statement of employment particulars is changing – more detail will need to be included.

This has come about as a result of recent legislation:

  • The Employment Rights (Miscellaneous Amendments) Regulations 2019 and;
  • The Employment Rights (Employment Particulars and Paid Annual Leave) (Amendment) Regulations 2018.

Requirements prior to 6 April 2020

In order to understand the changes made it is useful to have a firm grasp on what is required prior to 6 April 2020.

Section 1 Employment Rights Act 1996 (ERA) details that employees who are to work for more than a month must be provided with a statement of employment particulars. This is sometimes referred to as a ‘section 1 statement’ and it must be produced within two months of the start of employment. It must include:

  • Names of employer and employee
  • Date employment commences
  • Date of any period of continuous employment
  • Hours
  • Pay and interval of payment
  • Holiday entitlement and holiday pay

The ERA does not require information regarding disciplinary procedure to be included within the same statement but it must also be made available to employees within two months of employment commencing.

Requirements post 6 April 2020

  • The right to a statement of employment particulars will start from day one of employment and those working for less than a month are no longer an exception.
  • The definition of those affected has changed from ‘employee’ to ‘worker’ which means those with looser service contracts (worker contracts) will, in some cases, still have a right to a section 1 statement.
  • There is more information required in a section 1 statement and this must be contained within a single document. Particulars to be added are:
    • Days of the week a worker is required to work.
    • Whether working hours or days may be variable.
    • Maternity leave and paternity leave entitlement.
    • Remuneration or benefits provided by employer.
    • Probationary period, including any conditions and its duration.
    • Any training provided by the employer which the worker is required to complete and any other required training in respect of which the employer will not bear the cost.
  • There are other particulars which are now required in the same principal statement and not a supplementary one:
  • The notice periods for termination by either side.
  • Terms relating to absence due to incapacity and sick pay.
  • Terms as to length of temporary or fixed-term work.
  • Terms related to work outside the UK for a period of more than one month.
  • The determination of an average week’s pay must be based on data from 52 weeks rather than 12 weeks or the number of complete weeks for which the worker has been employed.

Worker/Employee distinction

A section 1 notice, under the new requirements, is now available to both employees and workers.

This places the onus on the employer to determine whether their contract is with an ‘employee’ or ‘worker’ and tailor the information to suit either definition. A worker being loosely defined as someone obliged to provide work personally, but not carrying on business where the employer is the customer. Someone who is genuinely self-employed will obviously fall outside of this definition.

Disciplinary and grievance procedures as well as probationary periods would not normally apply to ‘workers’ and therefore specifying these in a worker’s statement could imply that they are an employee. It is important that employers do not sanction unwanted or potentially harmful rights to those normally defined as workers.

Existing Employees

As of 6 April 2020 an existing employee can request additional information now required in a section 1 notice at any time up to three months after the end of employment. An employee has no longer than one month to give such additional information.

It is also important to be aware that if new provisions are introduced and they fall within the remit of the new section 1 notice then existing employees should be notified of these changes. This is the case even when the existing employee has not, up until that point, requested a new section 1 notice.

Action to be taken by employers

Given that employers will be required to produce statements for employees on day one it will mean that full details of job offers will need to established from the outset.

Existing contracts will need to be reviewed. New contracts will need to be updated. The worker/employee distinction will need to be considered.

We are currently helping clients with the new rules – it’s quick and straightforward work. If you are an employer and would like our help please contact Imogen Finnegan, Helen Monson or Rhodri Thomas or call us on 0203 637 6374.