How may proceedings change after Covid-19?

Employees who are union or non-union representatives may undertake duties and activities for the purpose of individual or collective representation of employees or other workers. However in doing this, they must not provide services to or generate revenue for, or on behalf of your organisation or a linked or associated organisation.

Employees who are pension scheme trustees or trustee directors of a corporate trustee may also undertake trustee duties in relation to the pension scheme. However, a professional, independent pension scheme trustee who has been furloughed by the independent trustee company cannot undertake trustee work that would provide services to or generate revenue for, or on behalf of, the independent trustee company or any organisation linked or associated with that independent trustee company during hours when they are recorded as being on furlough.

The government has announced a number of measures to try to protect businesses during the current period of uncertainty. However there is no outright ban on creditors being able to take legal action to recover money they are owed, though there are temporary restrictions on some forms of legal action, like winding up petitions.

However, it is important to note that these measures only relate to winding up proceedings. Creditors will still be free to commence county court claims.

The new Corporate Insolvency and Governance Act 2020 brings in a new “moratorium” procedure. Businesses in financial difficulty that are viable and can be rescued will now be able to work with an insolvency practitioner to obtain at least 20 business days’ breathing space from creditors to allow the business to formulate a plan to deal with its financial problems.

For more information on the Corporate Insolvency and Governance Act, click here

As part of the raft of measures put forward by the government over recent months, there are also restrictions on landlords taking action to evict commercial tenants who miss rent payments. Various payment holidays and forbearance have been put in place in respect of certain tax liabilities and some business rates.

If your business is going to go into an insolvency process like administration or a company voluntary arrangement, there is the ability to obtain a freeze on creditors taking action whilst those procedures are put in place. However, these sorts of moratoriums will not be available to everyone and in any event not unless an insolvency process is being instigated.

Regardless of whether a business has formal protection from creditors or not, engagement with creditors and trying to reach agreement with them to deal with the debt is therefore vital. Much of the protection measures that the Government has introduced like curbing the ability of landlords to evict a commercial tenant, do not wipe out the debt. They simply prevent action being taken or a payment becoming due for a short time. All businesses should use that time to consider how those debts can be dealt with and engage with the relevant stakeholders sooner rather than later.

• Integration:
  • Is the individual held out as being employed by the business by having a company email address, uniform, how would they introduce themselves to customers?
• Exclusivity:
  • Is the contractor restricted from working for other organisations without the consent of the end user client?
• Length of engagement:
  • Is the contractor engaged to work on a specific project for a defined period? Or are they engaged for an indefinite period with no reference to a specific task or project?
• Pay:
  • Are there regular fixed payments or is payment on completion of specific task or commission based? Is the contractor entitled to benefits or bonuses?
• Facilities:
  • Does the contractor provide their own equipment and materials to provide the services?
• Financial risk:
  • Is the contractor personally responsible for any loss arising from their work in performing the services? Will they have to rectify unsatisfactory work at their own time and expense? Will they have the opportunity to profit from the success of a project?

On 18 April 2020, it was announced that an exception to the current stay in possession proceedings and ban on all evictions has been made to allow possession orders to be made against trespassers.

This means land owners can take action to remove unauthorised persons occupying their land. Trespassers include: squatters; travellers; failed successors of secure tenancies; and licensees whose licences have been terminated.

Further, the automatic stay to possession proceedings currently imposed no longer applies to applications for interim possession orders meaning any persons found to be “squatting” on land without permission may again be subject to an order requiring them to leave your premises within 24 hours of service of that order.

Privacy policy – You must make sure the relevant privacy policies deal with how you will process Covid-19 data. You should have an employee privacy policy and this may already deal with health data (if it doesn’t, it should). You might also need to look at privacy policies for customers, visitors and suppliers. This ensures that processing is lawful, fair and transparent.

Lawful processing conditions – You will need to consider which processing conditions you are relying on (remembering that you need both an Article 6 condition and an Article 9 condition – this is the part of the GDPR which deals with special category data). As a lot of the data you collect will be about employees, you can’t use consent so you will have to find another lawful reason under GDPR which allows you to process the data.

Appropriate policy document – When you are considering your Article 9 processing conditions, remember you must also have an “appropriate policy document” in place.

Processing record – Finally make sure your processing record is up to date with information on what data you collect and use.