How does salary sacrifice affect the Government’s Coronavirus Job Retention Scheme?

The Commission has provided guidance as to measures which Member States can introduce without notification. These include:

• Measures which apply to all businesses within a Member State (for example the furloughing measures introduced by the UK Government)
• Measures providing support direct to consumers
• Measures which are already exempt from the notification requirement (discussed further below).

To respond to the crisis the European Commission has also issued a temporary framework to provide a basis for emergency aid to be notified for approval. The framework is initially in place until 31 December 2020. The Commission continues to keep this under review and has twice widened its scope to allow more types of aid to be notified. The type of measures covered include:

• The provision of guarantees (including guarantees for 100% of loans)
• The provision of loans at low interest rates, at zero interest rates or subordinated to senior debt
• Measures to support liquidity needs or to alleviate difficulties caused by the current crisis
• Measures to recapitalise businesses
• Measures to assist sectors hit particularly hard by the current crisis (eg transport)
• Measures targeted at COVID-19 such as research and development or production of products related to tackling the virus

The Commission has approved a UK Government “umbrella” notification to allow UK public authorities to adopt the measures permitted by the Commission framework. Therefore public authorities in the UK can use the Framework without notifying individual measures or schemes to the Commission.

Follow up to date UK Government advice. This can be found at: https://www.gov.uk/government/publications/guidance-to-employers-and-businesses-about-covid-19/guidance-for-employers-and-businesses-on-coronavirus-covid-19

For best practice and more detailed information; consult the HSE’s website at https://www.hse.gov.uk/news/coronavirus.htm

Failing to follow the guidance is likely to be regarded as failing to take all reasonably practicable steps.

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.

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.

“Switching” is where you can transfer from one visa category to another without leaving the UK. However, in many instances where an individual wants to change from one visa category to another, they have to leave the UK and apply from the country they normally reside in.

There are currently limited concessions in place due to the pandemic where you are able to switch visas from within the UK instead of applying from overseas.  These are regularly updated and so please contact us for further information.