Legal Update
New Health and Safety Protection for Workers
In December 2020 a trade union won its a High Court battle against the UK Government for failing to properly implement 2 EU directives into UK law: the
- EU Health and Safety Framework Directive
- Personal Protective Equipment Directive.
The government had only implemented these in relation to employees. The High Court ruled that workers should also have been protected.
The government did not appeal the result and has now drafted new legislation correcting one of the issues raised, which will take effect from 31 May 2021.
From that date, the law will protect workers (as well as employees) who reasonably believe there is a serious and imminent danger to their health and safety that they cannot reasonably be expected to prevent. This means they can leave or refuse to return to the workplace or take other appropriate steps to protect themselves or others. If they do, they must not suffer any detriment . this means they cannot be penalised.
The new protection can apply in any health and safety situation, but it is likely to be particularly relevant to COVID-19. That is because the Coronavirus Act 2020 explicitly labels coronavirus as a serious and imminent danger.
That just leaves the question of whether a worker's belief in the danger is reasonable. As always, this will depend on the circumstances. However, it will likely be more difficult for a worker to claim this if you:
• properly follow all government guidelines on making your workplace COVID-secure,
• actively police any measures you put in place, and
• clearly communicate all of this to staff.
Although the change in law does not come in until 31 May, it is a good idea to start applying it now. That is because there is a chance that courts and tribunals could follow the High Court's ruling when considering incidents that happened before then.
Note also that workers already have protection under whistleblowing laws. Take seriously any complaints from them about the safety of working conditions and do not use it as grounds for any retaliation or other detrimental action.
The government has not yet acted over the other issue in the original case, the Personal Protective Equipment Directive. However, it is safest for you to assume that this will soon also apply to workers and to provide them with adequate PPE, if the circumstances require it.
COVID-19 round-up: April extensions and expiries
Many of the temporary changes in law designed to help businesses were due to expire at the end of March. Here we round up which of these are still in place and which have ended.
EXTENDED: Commercial Rent Arrears Recovery restriction
The Commercial Rent Arrears Recovery (CRAR) procedure is available to landlords of commercial properties where tenants have reached a certain level of rent arrears. Landlords can serve notices on their tenants demanding payment, which can ultimately result in the seizure of the tenants' goods if the rent isn't paid. The number of days of unpaid rent needed to trigger this procedure has been temporarily extended again – between 25 March and 23 June 2021, 457 days of unpaid rent is required. Between 24 and 30 June, it'll be 554 days.
This ties in with the extension to the ban on commercial landlords in England and Wales claiming forfeiture due to unpaid rent, which we reported last month. Since then, that ban has also been extended in Northern Ireland (to 30 June).
PARTIALLY EXTENDED: Corporate Insolvency and Governance Act 2020
Last year, this Act created various temporary measures to help struggling companies. Some aspects have been extended, while others have expired.
Extended:
• Company moratorium: companies in serious debt can get at least 20 days' breathing space, during which they have a payment holiday from supplier debts and can't face legal action for debts run up before the moratorium. Temporarily, companies facing a winding-up petition can get the moratorium via a simpler process. Also, companies that have been in administration or subject to a Company Voluntary Arrangement in the previous 12 months are temporarily eligible for the moratorium. Last month we reported that both measures have been extended to 30 September in Northern Ireland – since then, the same extension applies to those in England and Wales.
• Winding-up moratorium: creditors have been stopped from using a statutory demand to form the basis of a winding-up petition against companies who owe them money. This now applies to any statutory demand served until 30 June. Similarly, winding-up petitions can't be presented until then (unless the creditor can show that the debt is unrelated to COVID-19).
• Wrongful trading liability: normally, a company director can sometimes be personally liable if their company enters administration or liquidation. This is the case if they knew (or should have known) that there was no reasonable chance of avoiding it, and they didn't take every step to minimise the loss to creditors. However, this was temporarily relaxed to encourage companies try and keep going during the pandemic – and has now been extended until 30 June.
Ended:
• Filing deadline extension: deadlines for accounts, confirmation statements and events-driven filings that fell between 27 June 2020 and 5 April 2021 were automatically extended. The government has confirmed that this has now ended, though some companies may still be able to apply for a 3-month extension.
• Company meeting relaxations: there were temporary rules in place that allowed you to hold certain company meetings (e.g., AGMs) after 26 March 2020 in COVID-safe ways, even if they did not adhere to your company's articles of association. These measures expired on 30 March 2021. However, based on the government's COVID-19 roadmap, it appears that general meetings will be required to be held on a closed basis until at least 17 May and possibly until at least 21 June.
Correction: new minimum pay rates from April
Last month we reported on the 1 April increases to the National Minimum Wage and National Living Wage. Unfortunately, we did not mention that 2 of the age bands have also changed.
The top rate of £8.91 now applies to those aged 23 and over (previously 25 and over), while the second-tier rate of £8.36 now applies to those aged 21 or 22 (previously 21-24).
Apologies for the error.
If you need any help or guidance within your business please feel free to contact either Glenys or Becki on: enquiries@glenys-bridges.co.uk