Can I get contracts signed electronically if signatories are working remotely?

Solicitors can be authorised to sign contracts for their clients – a signed letter of authority should be scanned and sent to avoid posting potentially contaminated documents.

Solicitors should exchange supplemental agreements on behalf of their clients to agree to postpone exchange and completion dates if it has been agreed to push these back.

The Law Society advises that electronic signatures be used as much as possible for contracts, to avoid possible contamination. However, the Land Registry confirms that the legal transfer document cannot be validly executed with an electronic signature. Solicitors should agree a completion undertaking that the original transfer document will be sent when received and after the restrictions have been lifted.

The Land Registry’s latest guidance https://www.gov.uk/guidance/coronavirus-covid-19-impact-on-hm-land-registrys-services published on 14 May states:

We accept deeds that have been signed using the ‘Mercury signing approach’.

For land registration purposes, a signature page will need to be signed in pen and witnessed in person (not by a video call). The signature will then need to be captured, with a scanner or a camera, to produce a PDF, JPEG or other suitable copy of the signed signature page. Each party sends a single email to their conveyancer to which is attached the final agreed copy of the document and the copy of the signed signature page.

Solicitors should be willing to adopt this procedure for completing transactions to enable them to be registered by the Land Registry.

The execution of a transfer is a deed and must be witnessed. Members of the family can witness signatures so long as they are not also a party to the document. A witness will be more credible if they are 18 or over, but this is not a legal requirement. The legal requirement is for the witness “to be present” when the document is signed. It would be possible for a witness to be on the other side of the room or the other side of a window, and validly witness the execution of a deed. The witness does need to take precautions to avoid possible contamination from the document.

A statutory declaration does not need to be witnessed but must be administered by a solicitor or commissioner for oaths. There is no legally prescribed process for this, and there is nothing to suggest that this could not be validly done via a video telephone call if the signature on the declaration can clearly be seen by the person commissioning the oath when the oath is made.

Specialist healthcare lawyers from Ward Hadaway ran a free webinar looking at the practical and legal considerations if required to treat healthcare workers from a BAME background or other vulnerable groups differently in the fight against the Covid-19 pandemic.

If organisations don’t have a formal home working policy, then they should set out, as soon as possible, in clear terms, what is expected of employees from a data protection perspective when working from home. These might include:

• If someone is using their own device for remote working, ensuring that any devices that hold work-related information have up-to-date anti-virus software and that broadband connections have properly configured firewalls
• Reminding staff to contact the organisation’s IT department if they encounter any issues with home working, and not to try and resolve any issues themselves
• Reminding staff that they should notify relevant individuals within the organisation if they consider that there might have been a personal data breach. A breach will still be notifiable even if it does occur at home during the pandemic. These should be logged by the organisation in their data breach log in the normal way
• Ensuring staff lock their devices whenever they are not using them
• Where possible, working in a separate part of the home to family members
• Ensuring confidentiality of information – advising staff not to have phone calls where others are likely to hear the conversation. This might mean moving to a different room, closing the door, or arranging a call for a more convenient time. If employees have smart speakers, you may want to consider advising them to either turn these off, if they are working in the same room as it, or work in a different room
• Wherever possible, avoid taking hard copy documents home, and, if papers are taken home, never placing those papers in a bin or using a home shredder – any such papers should be shredded back at the office in the usual way
• Locking any papers in a safe place
• Not using social media platforms (unless already used and permitted by the organisation) to discuss work matters
• Advising extra caution with incoming emails as at times such as this there may be an increased risk of fraud, email hacking, spear phishing etc.
• Avoiding information being sent to personal email accounts (for example, so it can then be printed at home)
• Reminding staff of your organisation’s Information Security policies, procedures and protocols. These could be emailed to all staff working from home or they could be directed to such documents on the organisation’s intranet, for example

Organisations should also ensure that their remote access systems can cope with increased demand.

Whilst the ICO appreciates the unprecedented nature of this pandemic, it does not mean that organisations can forget about their obligations as controllers of personal data. If a major data security breach were to happen, there is still the possibility of enforcement action where the organisation didn’t put in place good risk mitigation measures.

We have a specialist team of data protection lawyers here at Ward Hadaway, and would be happy to discuss any data protection concerns or issues that you might have.

An employee on Flexible Furlough can take part in volunteer work during hours which you record your employee as being on Flexible Furlough as long as it is for another employer or organisation.

To be clear, if on Flexible Furlough and you’re claiming the grant for them, then they cannot work for you.

As people work part-time and ease back into the business, this is likely going to be a key risk area. You need very clear lines as to working time and non-working time. No replying to emails on days off.