Alternatives to redundancy toolkit

The current position is that the PSC is responsible for assessing whether IR35 applies. This current regime has been difficult to police by HMRC and HMRC considers there is widespread flouting of the rules by contractors.

From April 2021 the responsibility for assessing whether IR35 applies will shift to the end user/client (with the exception of ‘small’ companies) which will require an assessment to be carried out on a contract by contract basis. HMRC anticipates that this will be easier to monitor and that end user businesses will be more compliant.

The reformed regime will apply to payments made on or after 6 April 2021 for services carried out on or after this date.

Employers had until 31 July 2020 to make any claims for claim periods up to 30 June 2020. That was the end of the old scheme.

From 1 July 2020, claim periods must start and end within the same calendar month and must be for at least 7 days unless you are claiming for the first few days or the last few days in a month.

You can only claim for a period of fewer than 7 days if the period you are claiming for includes either the first or last day of the calendar month, and you have already claimed for the period ending immediately before it.

For example, if an employee is furloughed for 7 days spanning a month. You can claim the last 3 in one month, and 4 from the next.

The crucial point is that you cannot make claims that cross calendar months.

The first time that you could make a claim for days in July 2020 was 1 July 2020. You could not claim for periods in July 2020 before this point.

This is unlikely. Frustration is a doctrine rarely used as a way of getting out of leases. It operates to bring a lease to an early end because of the effect of a supervening event. It is then not a concept readily applicable to a situation where one party is looking to get out of a lease. To be able to argue the doctrine of frustration, you must be able to demonstrate that something unforeseeable has happened that makes it impossible to fulfil the lease and unjust to hold a party to its obligations.

This is not something that can be demonstrated easily.

There was a case in the High Court last year when the doctrine of frustration was looked at in a case involving the European Medical Agency.

The court found that Brexit did not frustrate EMA’s lease. EMA was granted leave to appeal that decision to the Court of Appeal, but unfortunately, the parties settled out of court so the arguments were not tested in the higher court.

Another reason why frustration is likely to fail is an argument that, whilst the current lockdown may force closures to businesses and whilst such closures maybe for a lengthy period, such closures will only be temporary.

It is worth pointing out that, despite all the guidance, survey results and other advice about managing Covid-19 H&S risk in the workplace, the law has not been changed. None of the guidance is codified by regulation/legislation, which means that you are managing this risk in the context of existing H&S law.

In very simple terms, HASWA74 requires employers to take “all reasonably practicable steps” to ensure the health and safety of its employees (and anyone else affected by your business).

“Reasonably practicable” means to balance risk reduction against the time, money and effort required. If measures are grossly disproportionate, you wouldn’t be expected to take them, but there is a strong presumption in favour of taking any steps which will protect workers.

As part of managing the health and safety of your people, you must control the risks in your workplaces. To do this, look for what might cause harm to people while they work and decide whether you are taking reasonable steps to prevent that harm. This related duty under MHSWR is to ensure you undertake a “suitable and sufficient assessment of risks.”

Where one or more of the parties is represented, responsibility for making the arrangements for the remote hearing will fall on either the applicant or the first represented party. If no party is legally represented, the court office will contact the parties to explain that the hearing will be held by telephone conference and will send them instructions on how this is to be achieved.

All remote hearings must be recorded. The responsibility for arranging the recording will be addressed on a case by case basis.