iLaw welcomes arbitration expert, Jenny Lau, to the firm

iLaw welcomes arbitration expert, Jenny Lau, to the firm

iLaw is pleased to announce the addition of lawyer Jenny Lau to our firm.  Jenny is an experienced litigator and will now be leading the arbitration practice at iLaw. She was a Director at Fieldfisher before joining Wilsons where she became a Partner.

 

Jenny has a broad and varied commercial practice dealing with complex and often international disputes. Her experience includes advising high net-worth individuals on insolvency and professional negligence issues relating to the film finance schemes. She has acted for a corporate Claimant in a treaty arbitration against Ukraine, worked for one of the Lehman Brothers entities and advised a number of mining companies regarding interests in Asia and the Balkans.

 

She also worked on Keymed (Medical & Industrial Equipment) Limited v Hillman and Woodford, one of The Lawyer’s Top 20 Cases of 2018.

 

Jenny has various areas of specialism including:

  • Banking and finance
  • Corporate disputes
  • Commercial fraud
  • Insolvency and restructuring
  • Professional negligence

 

Jenny speaks fluent Cantonese; with which she will be able to assist international clients.

 

Notes to Editors 

iLaw is an innovative City of London commercial law firm with a focus on clients in the technology, media and telecoms sectors, although it has many clients in other sectors too.

To find out more, please contact iLaw’s director Mark Culbert via email at mark.culbert@ilaw.co.uk or 07894 873152.

The country must take a pragmatic approach to privacy law when it comes to coronavirus tracking apps, says data protection specialist

The country must take a pragmatic approach to privacy law when it comes to coronavirus tracking apps, says data protection specialist

A leading data protection solicitor at London legal firm iLaw believes that the exceptional circumstances surrounding the COVID-19 pandemic mean that the physical health and safety of the population should weigh heavily in the balance with the application of data protection rules in tracking the virus.

Since the launch of a dedicated COVID-19 tracking app was announced by the Government there has been an ongoing debate regarding data protection and privacy laws, and there have been a variety of objections that the app would infringe those laws.

Justin Ellis, a Director at iLaw and an expert in data protection, said it is clear that there are many bases on which an app could be found to meet the conditions necessary for it to comply with data protection law and he hopes that the authorities, developers and users alike will take a pragmatic approach.

“Now is not the time for delay. A tracking app could be key in helping the Government to ease the lockdown and monitor the spread of the virus ensuring people remain safe,” said Justin.

“Data protection and privacy lawyers, such as myself, sometimes get carried away with the detail of the law, but these are unprecedented times and we mustn’t allow the legislation to get in the way of the immediate needs of our society unless absolutely necessary.”

Justin explained that one of the main issues with a tracking app is that it will be required to process ‘special categories’ of personal data, in particular health information.

This could raise important questions regarding consent, but Justin believes there are at least two other grounds on which such information could be processed lawfully – where processing is necessary to protect individuals’ lives and where processing is necessary for reasons of substantial public interest.

Another significant issue that the app may face is its ability to track people’s location. Justin said that in reality, as long as the system incorporated safeguards to ensure the security of location information, then it should be compliant with current data protection laws. He also pointed out that many apps on people’s phones already process this kind of information with only the most basic of consents.

He said: “I think we are at a point now where these questions should be quickly addressed in the most practical ways. The rules exist so that in circumstances such as those we face at the moment, we can find a way for such apps to be that achieves the best outcome for the nation’s public health while we safeguard the security of people’s personal information.”

Looking at the approach to data protection and COVID-19 tracking software, Justin concluded: “Fundamentally, if the country wants to come out of lockdown, its people are going to have to exercise some degree of trust.

“Unless the app is made compulsory, everyone will have the choice of whether to use it or not. Hopefully, the majority of the population is sensible enough to realise that it’s for the general good and therefore consent to the processing of their data.

“To build trust it is important that the Government is clear on what data is being processed and how it will be used. This should override many of the concerns that people have.”

Government’s Coronavirus Job Retention Schemes filled with potential pitfalls, warns iLaw

Government’s Coronavirus Job Retention Schemes filled with potential pitfalls, warns iLaw

Employment law specialists at London law firm, iLaw, are calling on the Government to provide further guidance on the Coronavirus Job Retention Scheme (CJRS) that is due to be available by the end of April – in particular the need for collective consultation processes at some firms.

Although the firm said that many businesses welcomed the measures, the lack of clarity around certain key points meant that businesses were unsure of how to begin the process for furloughing staff members and could find themselves liable for legal or regulatory action as a result.

The CJRS is open to all UK employers for at least three months starting from 1 March 2020 and will allow for businesses to claim for 80 per cent of furloughed employees’ usual monthly wage costs, up to £2,500 a month, plus the associated Employer National Insurance contributions and minimum automatic enrolment employer pension contributions on that wage.

To be eligible, an employer must furlough staff members by agreement, so that they can remain on their payroll, but not conduct any work – as per the Government guidance.

Julian Cox, Head of Employment at iLaw, said: “To access funding via the scheme employers will need to obtain the employee’s agreement to be furloughed as this involves a change in employment status.

“However, the guidance says that this process may be bound by the usual rules of collective consultation, which require an employer to consult with their team if more than 20 workers are affected.

“Unfortunately, the language used in the Government guidance is far too ambiguous and it is leaving some employers uncertain of their responsibilities, which is prevent them from taking the action they need.”

Julian explained that the collective consultation process requires employers to give employees time (the length of time depending on the number of affected workers)to respond and agree, which could delay a businesses ability to make a claim.

“Companies want to take action on this now, but if they do not undergo the necessary process for consultation they may risk being found in breach of the regulations at a later date,” explained Julian.

iLaw believes that many business might be seeking a middle ground, which could mean a consultation for a shorter period on the basis that the change proposed is only a change to the employees’ contracts of employment, and then only proceed to a formal collective redundancy consultation if full employee consent is not obtained and dismissals will need to be considered.

Julian added: “It is arguable that this is all that is required, on the basis that the employer does not propose to make any dismissals until the point that it becomes clear there is no employee consent. It is best to seek legal advice before undertaking any consultation”

With the alternative for many employees being the prospect of a lay off or redundancy, iLaw suspects that many employees would agree to the proposal early on in the process, which may mean the full consultation period is not required anyway.

Julian says that the legislation also needs to be clearer on when the scheme can start and end for an employer to ensure all are treated equally.

“Businesses may wish to keep this scheme in reserve as a last option, but the rules are clear, the CJRS is only currently open for three months, starting from 1 March,” he added.

“This may mean that those who wait may be penalised for trying to continue on as usual, while those businesses that decide to furlough earlier could be better off. This area of guidance could do with clarification and possible amendment to make it fairer for all.”

Alternatives to the Coronavirus Job Retention Scheme

Alternatives to the Coronavirus Job Retention Scheme

The Government’s recently launched Coronavirus Job Retention Scheme has been described as an “unprecedented” step to help employers subsidise their staff’s wages.

Covering up to 80 per cent of an employee’s wage costs, capped at £2,500, the scheme is due to go live imminently – with the first payments being made by the end of April.

However, as the Government’s guidance makes clear the Scheme is only available where an employee is not working.

There may also be other reasons why employers and workers are either unable or unwilling to use the Scheme, so it is important that they consider alternative options.

Options available to businesses as an alternative to furloughing employees can be categorised as follows:

Seek agreement from affected staff to reduce pay/ hours/ take unpaid leave

  • Seek agreement to a temporary reduction in:
  • Salary
  • the number of days/hours that they work
  • Seek an agreement to a temporary period of unpaid leave.

In essence these are all fundamental changes to an employee’s terms and conditions of employment.

Such drastic changes to terms and conditions of employment will therefore need to be negotiated and agreed with the affected employees on a one to one basis. Any such agreement should be confirmed in writing by a letter of variation to their contract.

This could be negotiated on the basis that it’s an alternative to redundancy. With the Coronavirus job retention scheme now open to employers though this may not be as an attractive an argument for an employer to try to put forward.

Be warned also that trying to unilaterally impose such significant changes to terms and conditions risks those employees with over two years’ service resigning and bringing a claim for unfair dismissal exposing an employer to financial liability.

An award for unfair dismissal comprises of a basic award, calculated in the same way as statutory redundancy entitlement, together with compensation for loss of earnings of up to one year’s salary capped at a maximum of £88,519 from 6 April.

Unilaterally trying to change an employee’s terms and conditions also exposes an employer to claims of breach of contract and unlawful deduction of wages.

In circumstances where the employee will not agree to such a fundamental change to their working arrangements the alternative route available to an employer is to terminate the targeted employee’s existing contract on notice and offer them a new contract with the reduced contractual entitlements.

Be warned against this though, as it is a high-risk strategy that also exposes an employer to a claim of unfair dismissal in the case of those employees with over two years’ service where they are unwilling to accept the new contract.

Whilst the loss of earnings element of any award will be reduced, being made of the pay differential between the respective salaries, as the employee is under a duty to mitigate their losses, such a route still needs to be handled very carefully.

With regard to employees with less than two years’ service the position is more straightforward. These can be dealt with by terminating their current contract on notice and offering them a new one on the reduced terms without the risk of a claim for unfair dismissal.

That gives an employer more flexibility and agility in terms of this category of workers.

Temporary suspension or withdrawal of bonus schemes

This is another option that would potentially be worth exploring for employers to save costs.

It is worth noting that these performance related schemes cannot be claimed for under the Job Retention Scheme anyway, so even those using the Government’s help should consider withdrawing them.

Where the outline of performance related pay is included within an employee’s contract, you may need to seek a variation to these clauses.

Encourage staff to take annual leave

An employer could encourage staff to take annual leave if the business is struggling.

An employer ought to expressly reserve the right to ask staff to take holiday at a specific time in its contracts.

Under statutory rules the position is it is obliged to provide notice of at least twice the amount of time as the leave you want them to take.

Temporary layoff/ short term working

Employers can temporarily lay off staff, but unless they have specific layoff clauses in their contracts, employees need to be paid their full wages during this time.

Employers with layoff clauses in their contracts would only need to be paid the statutory guarantee pay – currently £29 a day for five days (limited to a maximum of £145 within any three-month period), increasing to £30 a day from 6 April.

The statutory right to temporarily lay off staff is only available if there is a contractual right in the contract of employment.

This is not a common clause seen written into contracts of employment (it may be in future!) so not a route available to many employers.

Offer unpaid sabbaticals

An employer could ask staff to take up the offer of an unpaid sabbatical of a couple of months. They would need to agree this.

Frankly though it’s not a very attractive option to put to staff given the Coronavirus Job Retention Scheme is now available.

Postponing new starters or withdrawing job offers

Regarding new joiners, employers may have to consider postponing their recruitment.

In terms of any job offers already made and accepted, any withdrawal may give rise to a claim of breach of contract to the extent of the relevant individual’s notice entitlement.

Making staff redundant

This should only be seen as a last resort for employers given the alternative options available as outlined above.

Redundancy in essence involves the loss of a job or at the very least a significant reduction in work.

In the event that an employer did decide they wanted to go down this route then good grounds would need to be established for making redundancies and proper procedures followed (involving giving waring of potential redundancy, followed by consultation and then notice) to avoid claims of unfair dismissal for staff with over two years’ salary.

Making staff redundant with over two years’ salary takes time – typically consultation would take at least a couple of weeks and then notice of up to 30 days needs to be given.

Employees with over two years’ service have an entitlement to statutory redundancy pay. This can be calculated by clicking here.

For staff with less than two years’ service they do not have unfair dismissal rights and can simply be terminated on notice. There is no entitlement to statutory redundancy entitlement.

The Coronavirus Job Retention Scheme is specifically intended to avoid businesses in every sector, including the law, going down this route.

Coronavirus (COVID-19) advice for employers and employees

Coronavirus (COVID-19) advice for employers and employees

Coronavirus (COVID-19) for employers and employees

The UK has significantly stepped up its response to Coronavirus.

This had a significant impact on the operations of employers and the lives of individual employees. 

To help you navigate the challenges posed by Coronavirus, whether you are an employer or employee, we have put together this short guide.

Follow Government advice

The Government’s official advice has the potential to change quickly, so to ensure that you are acting according to the latest advice from the Government, it is a good idea to visit the official guidance pages on gov.uk regularly.

Advice for individuals

Guidance for employers and businesses 

Sick pay for individuals in self-isolation

With the increased range of circumstances in which the Government advises that people should self-isolate, there is a greater chance that you will have to deal with self-isolation.

Statutory Sick Pay (SSP)

The legal provisions for those who self-isolate in accordance with public health guidance on Coronavirus to be considered incapable of work, for the purpose of claiming statutory sick pay came into effect on 13 March 2020. 

This definition is a person who is “isolating himself [or herself] from other people in such a manner as to prevent infection or contamination with Coronavirus disease, in accordance with guidance published by Public Health England, NHS National Services Scotland or Public Health Wales …. and [who] by reason of that isolation is unable to work”.

An employee will need a notice to self-isolate or a fit note from their GP or NHS 111 if they are following Public Health England advice to self-isolate.  

The Government has also confirmed that SSP will payable from the first day that an employee is absent from work to self-isolate.  

The Government has also committed to reimbursing businesses with less than 250 employees for the cost of SSP for the first 14 days of self-isolation.

Contractual Sick Pay

It may be necessary to pay additional sick pay in circumstances where this is provided for in a contract of employment, in the employee handbook, or even where it is usual practice to do so. 

If you are unsure as to what to do in specific circumstances, please contact a member of our team.

Pay for individuals you have required to self-isolate

There may be circumstances in which you consider that an employee should self-isolate, even where this is not in accordance with Government advice. In these circumstances, you would have to continue to pay them their basic salary as usual.

Coronavirus Job Retention Scheme

The Chancellor has announced a scheme to reimburse up to 80 per cent of the cost of the wages of ‘furloughed workers’ up to £2,500 per employee per month.

This scheme will initially run for three months from 1 March 2020 and will be backdated. The Scheme will be administered by HMRC and all UK businesses and charities will be eligible.

We have provided more details of this scheme on our COVID-19 Portal by clicking here.

Lay-offs owing to reduced work

It is possible that businesses, especially those in certain sectors, will see a reduced workload as a consequence of Coronavirus.

In these circumstances, and where allowed for in the contract of employment, employees can be laid off temporarily. 

Employees who are laid off must be paid a guarantee payment of up to £29 a day, for five days, in a three-month period up to a maximum of £145. 

After four weeks, employees may be able to request that they are made redundant. 

Use of holiday

Another option that employers might wish to use is to require employees to take annual leave.

Where an employer wishes to do this, they must provide notice of at least twice the length of leave they require the employee to take. A requirement for an employee to take a week’s leave would require two weeks’ notice.

IR35

Please note that the Government has, as part of its Coronavirus response, delayed the introduction of the off-payroll working rules (IR35) until April 2021 and so the responsibility will remain with individual contractors to determine their own tax status.

Additional steps

  • Provide guidance to employees, setting out your approach to Coronavirus.
  • Assess whether any of your employees belong to vulnerable groups and who may need special provisions or employees whose presence is crucial to the functioning of your organisation.
  • Check the steps that can be taken feasibly to reduce the risk to employees If they remain within your business premises.

For further specific advice on dealing with Coronavirus in your workplace, please contact us today.