Cheyney Goulding

Cheyney Goulding Solicitors

t: 01483 56 76 76   e: legal@cheyneygoulding.co.uk

Joel Wish

‘No Jab, No Job?’ – What does the COVID-19 vaccine mean for employers?

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As of writing, over 10 million people in the UK have received a first dose of the coronavirus vaccine.  For some, this shows that some sense of normality may return to the workplace in the not-too-distant future.

But can an employer require his employees to be vaccinated or refuse employment to those who are not?

This seems to be the stance taken by Pimlico Plumbers. The national plumbing company announced they were taking a ‘no jab, no job’ policy and were instructing their lawyers to work on writing the requirement into employment contracts.  However, the matter is not as simple as this.

Below are some thoughts on three key questions employers have regarding the vaccine.

Can employers impose a mandatory vaccination policy to staff?

While this may depend on the workplace and the employee’s role, this will be incredibly unlikely. 

By virtue of the Public Health (Control of Disease) Act 1984, the government have a range of powers to take action to prevent, control or safeguard the public against ‘infection’.  Although, the government is specifically prohibited from requiring anyone to undergo medical treatment, including vaccination.  The government has also reassured the public that they will not enforce any mandatory vaccination programmes.

Considering this, it is highly unlikely UK employers will be looked at favourably should they compel staff to receive vaccinations.

Understandably, employers will likely support their staff in getting the vaccination.  However, some employees may have reasons for refusing the vaccination, i.e. the individual is unable to be vaccinated owing to an underlying health condition or it would be in contravention of their religious or philosophical beliefs.  If an employer’s vaccination policy adversely affects or undermines individuals from a protected group under the Equality Act 2010 (age, sex, race, disability and religion or belief), it will potentially be discriminatory and may encompass high-value compensation claims.

Employers are under a general duty, pursuant to the Health and Safety at Work Act 1974, to take reasonable steps to reduce workplace risks to their lowest practical level.  What this means in a COVID world is that employers should encourage staff to be vaccinated and educate them of the advantages of this towards their health and others in the workplace so that they may make their own informed decision. 

This is a more risk-averse approach that encourages staff to voluntarily take-up of the vaccine. 

Can I discipline or dismiss staff that refuse to be vaccinated?

Again, these situations will require a close analysis of the facts on a case-by-case basis and before taking any such action, it is recommended that you seek legal advice.

Employers are entitled to make ‘reasonable management requests’, which in this case would be asking staff to take up the vaccine.  In cases where it is existing workplace policy to be vaccinated or necessary for someone to responsibly do their job, then an employer may justify disciplinary action if an employee refuses such a request.  An example of this would be where an employee works in the health or care home sectors, it would be reasonable to request a vaccination if this will reduce the risks of passing infection. 

It is much less likely to be a ‘reasonable management request’ where the employee has limited contact with others, is able to work from home or there are alternative measures to reduce the risks of workplace transmission. 

Moreover, employers should be reminded of the need to be flexible with staff and their employees have the right to appeal any dismissal they deem unfair.

Can I refuse employment to individuals who have not been vaccinated?

There is some possibility to this, however, employers still run a major risk of claims, particularly discrimination, being brought against them. 

It may be too early to consider such a measure, especially as the government does not plan on rolling out vaccines for the younger generations until autumn later this year.

This a contemporary, and rather controversial, legal issue. While we await any further government guidance or legislation on the matter, we strongly recommend that employers obtain advice before making any decisions.

Please note, this guide is for general information only and does not constitute legal advice.  If you would like to discuss anything in this article, please get in touch. 

Shareholder decision-making

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The day-to-day management of a company is typically carried out by the appointed directors.  These individuals exercise all powers of the company and make decisions at meetings of the board of the directors. 

Shareholders do not necessarily have any direct say in the day-to-day management of the company; however, the interests of the members are safeguarded by the Company Act 2006.  Certain corporate decisions are reserved and require approval from the shareholders.  It should be noted that these provisions must always be read alongside the company’s own articles of association which may prescribe a different procedure, such as approval from a higher majority or unanimity of eligible shareholders.  

Shareholder approval is sought by either of two types of resolution:

  1. Ordinary Resolution – passed by a simple majority (i.e over 50%) of the members voting in favour; and
  2. Special Resolution – passed by a majority of not less than 75% of votes.

Below, are a selection of matters the Companies Act 2006 require a private company limited by shares to pass an Ordinary or Special Resolution:

ORDINARY RESOLUTIONS

  • Approval of a director’s long-term service contract, i.e a contract which guarantees a director’s employment for more than 2 years.
  • Approval of loans to directors.
  • Ratifying a director’s breach of fiduciary duty, except where the acts were dishonest or where the relevant act was unlawful or unauthorised.
  • Removal of directors from office against their will.
  • Approval of payments compensating directors for loss of office.
  • Approval of ‘substantial property transactions’.  This is when a director, or someone connected to them) buys from or sells to the company a non-cash asset, the value of which is either more than £100,000; or more than 10% of the company’s net assets and the asset’s value is more than £5,000.
  • Authorise directors to allot shares (unless the company’s articles already empower directors to do so).
  • Approving the company to buy-back its own shares.

SPECIAL RESOLUTIONS

  • Amend the company’s articles of association.
  • Change the company’s name.
  • Disapply pre-emption rights, i.e the obligation for shareholders selling/transferring their shares to initially offer to all other existing shareholders.
  • Reduce the company’s share capital.
  • Approve the purchase of the company’s own shares using the company’s own capital, as opposed to distributable profits.  The Directors will also need to provide a statement that the company will remain solvent for 12 months following the purchase.

Please note, this guide is for general information only and does not constitute legal advice.  If you would like to discuss anything in this article, please get in touch. 

How to witness a will by video

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The government has announced legislation reforms, albeit temporary, to allow for wills to be witnessed and executed via video link software, such as Zoom, Facetime, Whatsapp etc. 

The Current Law

Currently, the law in England & Wales states that a will is validly signed and executed when:

  1. The will-maker makes the will voluntarily, is of sound mind and intends to give legal effect to the contents of their will;
  2. The will-maker signs their will in writing and in the presence of two or more witnesses who each sign the will; and
  3. The witnesses are both aged over 18, are not members of the will-makers family nor are they specified as beneficiaries of your Will.

Considering government guidelines surrounding the coronavirus pandemic, it has been challenging for those isolating or shielding to arrange for wills to be signed, strictly, ‘in the presence of’ two witnesses.     

How the Law is Changing

In September 2020, the government will implement the new rules legalising video witnessed wills during the coronavirus pandemic.  These rules will be back-dated to 31 January 2020, being the date of the first confirmed case of coronavirus in the UK, and shall be in effect until 31 January 2022, however this may be subject to extension or shortening. 

This will mean anyone who has arranged their wills to be witnessed by video software since 31 January 2020 can have peace of mind that their wills shall be deemed legal, provided that the documents were still signed and executed correctly. 

The type of video conferencing or device is not important, as long as the quality of sound and video are sufficient to understand what is happening and provide will-maker and their two witnesses a ‘clear line of sight’ of the signature.

Witnessing pre-recorded videos will not be permissible, the video link must be live and in real time.  Equally, e-signatures remain prohibited for signing a will. 

However, the use of video technology should remain a last resort and people are encouraged to arrange physical witnessing of wills where it is safe and convenient for them to do so.  

Guidance on witnessing a will by video

The government and the Society for Trust and Estate Practitioners (STEP) have provided guidance on this new legal reform:

  1. The signing block in the will should be drafted to acknowledge that the signing and witnessing of the wills is done remotely.
  2. If the witnesses do not know the will-maker personally, they should ask for proof of ID.
  3. The witnesses should confirm they can see and hear clearly and can understand their role in signing a legal document.
  4. It is advised to record the signing of the will, if possible.
  5. The will-maker should hold the front page up to the camera and then turn to the signature page with the camera clearly in view of the will-maker signing.  The will-maker then signs and dates the will. 
  6. The will should then be sent to the witnesses, ideally within 24 hours.  The same will document must be sent to the witnesses, as opposed to a scan or a photocopy.  This process may be delayed if docs have to be posted but will-makers are advised to send the document promptly after they have signed.
  7. Once the witnesses receive the will, they must reconnect with the will-maker by video link making the same checks as to audio and visibility.  They will then sign in their respective space in the signature block.  Witnesses must not include the date when they sign.
  8. If the second witness is based in a separate location, the process of send the will and signing via video link is repeated.
  9. Once these signatures have all been arranged, the will is treated as valid from the date the will-maker signed the document.

For further advice and information on how to draft your Wills and affairs, please contact Christopher Seddon, who is the head of our Private Client Team, for guidance and an initial free telephone consultation.

Email: cseddon@cheyneygoulding.co.uk

Telephone: 01483 796008

Climate Change and Business

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An evaluation of some challenges that climate-related risks will create for businesses and the officers controlling them.

Climate change has become one of the leading socio-economic issues for businesses to consider moving into the new decade.  The increase in greenhouse gas and C02 emissions is evident as are the corresponding climate-related risks, which have been supported by scientific research.  Global warming’s role in the melting of ice caps has led to global average sea levels rising 3 inches in the last 25 years.  Furthermore, extreme weather events, including droughts, fires and storms, have almost doubled since recorded figures in 1980.   Indeed, the Australian wildfires furthers these facts and shows that climate change cannot be ignored.

Public awareness of climate change has developed significantly over recent years.  Fuelled by environmental pressures and protests, such as the Extinction rebellion movement, 2019 arguably saw climate activism become ‘mainstream’.  Perception is shifting from organisations solely linked to fossil fuels, such as oil and gas, to a recognition that all sectors bear responsibility, including the financial industry.    

The first truly globally binding treaty on climate change is sealed within the Paris Agreement 2015. This is arguably another attempt at a concerted effort towards a shared world target for climate change resilience.  The Agreement commits international communities and authorities to hold global warming to no more than 2 degrees above pre-industrial levels.  Development in eco-friendly technology and societal sentiment undoubtedly influenced these negotiations, however, companies of all levels are still unclear how any new eco targets will impact their business operating costs, the viability of products they serve and the future of their supply chains.  Equally, the Paris Agreement offers no sanctions if a country falls short of the targets, so, arguably confuses businesses as mere ‘policy without teeth’. 

Calls for action have not gone unnoticed by the UK government and regulators.  The Climate Change Act 2008 set the foundations for the UK’s approach to tackling the issue.  Laws have recently been passed amending the UK’s domestic climate change targets for a tougher and more ambitious goal of ‘net-zero’ greenhouse emissions by 2050.  This commitment means the government hopes that overall carbon footprint will be reduced, and any emissions will be balanced by equivalent schemes and innovation to offset these gases from the atmosphere. 

Additionally, given the UK has recently left the EU, there are opportunities for legislation.  Suspected government plans of a Carbon Emissions tax are somewhat likely to be introduced within the coming years, to replace the EU’s Emissions Trading System.  It is rumoured this will touch and concern a wide spread of taxable corporations from large publicly trade companies to high street businesses.  Furthermore, Parliament is currently reading drafts of the Emissions Reduction Bill.  This aims to place provisions for air quality in affected zones within legislative footing, which will be enforced by fixed penalties for offences under this Bill.  While this shows initial steps made for clearer laws and sanctions, any timetable for new measures coming into force cannot be predicted.  The lack of any stable policy environment makes it challenging for businesses to plan and take decisive action with certainty.

On top of the growing public outcry, banks, creditors and financial investors are increasingly sceptical of the ‘carbon footprint’ of companies they invest in.  Legal & General echoed this sentiment by making it the ‘top of its investment agenda’ and has since divested funds away from companies that fail to act on climate change risks.  Equally, RBS has recently announced its ambition to become ‘climate positive’ by 2025.  They will work on this through their financing activities, namely, cutting funding to businesses that emit large amounts of carbon dioxide or where more than 15% of its activities relate to fossil fuels.  As a result of climate risks, the finance sector is transforming and reallocating capital towards more currently attractive and sustainable opportunities that promote environmental, social and governance (ESG) objectives.   

For businesses, a review of corporate governance and social responsibility should be placed at the top of the agenda.  Preparing strategies against climate risks is no longer exclusive for the environmentally, or simply image, conscious. 

While it is arguable that pubic and listed companies will feel greater scrutiny from stakeholders, clients and regulators, all businesses will be urged to report on their environmental impact in the future.  It is clear, from the UK government at least, that authorities will crack down on companies and their officers for failing to take adequate responsibility towards the nation’s ‘net-zero’ target.   Organisations that can set targets and demonstrate how they manage risks offer a more favourable profile to the public and the wider business world.

While there is still much uncertainty, it is undeniable that climate change is creating further challenges for business moving forwards in the form of litigation, corporate governance and regulation.  Climate change risks are real and ignoring or not taking proper advice may lead to significant consequences.   

What’s happening to the UK High Streets?

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Store closures, services moving online and retailers losing business.  What challenges do companies face on the UK high street in 2019?

Businesses in various consumer facing sectors are facing uncertain times and economic hardship.  Last week saw the department store retailer Debenhams undergoing Company Voluntary Arrangements (CVA) to close numerous stores and the travel agent Thomas Cook announced their closure.  Some commentators have declared there to be a high street ‘crisis’; but is this really the case?

Unfortunately, there are some valid reasons and statistics to support these concerns.  The first half of 2019 recorded a total of 2,868 store closures, equivalent to approximately 16 shops a day.  This figure is up by more than 6.5% from closures reported last year and is possibly one of the most severe declines the retail sector has faced in 6 years.  The consequences of this are evident.  Major chains and household names have gone into administration including Patisserie Valerie and Debenhams.  Not only have closures cost thousands of jobs, but a mark has been left on the high street to the extent that 1 in 10 shops in the UK are reportedly vacant.   

The ‘crisis’ is not merely limited to retail stores and outlets. Indeed, the restaurant industry has been experiencing significant pressure.  High profile restaurant groups and chains including Carluccio’s, Gourmet Burger Kitchen, Byron and Prezzo have all been forced to close large numbers of stores.  

One of the most publicised collapses happened to Jamie Oliver’s chain of Italian restaurants.  Upon the closure of Jamie’s Italian restaurants, Mr Oliver cited the ‘struggles of the casual dining sector’ and ‘soaring business rates’.  While the reasons Mr Oliver provides are genuine issues, a closer inspection of his business would argue differently.  Less than favourable reviews, a failure to adapt to modern consumer needs as well as an unsustainable expansion plan are possibly more plausible reasons for the closures.  Additionally, the business failed to capitalise on the boom of tech starter-ups, like Deliveroo and Uber Eats, which provide a powerful new means for businesses to connect to customers. 

Equally, the case with Thomas Cook, the 178-year old holiday operator, is both tragic and unfortunately expected.  The product and services the company provided were becoming less in demand.  Consumers seeking to travel have become more reliant on booking services directly online which, consequently, removes the need for holidaymakers and agents entirely.     

With new online businesses emerging and consumer behaviour shifting away from physical stores, the internet has created new opportunities and threats.  The added convenience and accessibility of online shopping has naturally contributed to the decreased footfall in local shopping centres.  Retailers also must contend with rising operating costs from increased minimum wages, commercial leasehold rents and business rates.

In response to this, the government has established the Future High Street Fund.  This scheme will invest over £1 billion in order to breathe new life into a large number of shortlisted towns and cities.  Local authorities will be supported with the development of projects, improving transport, converting empty retail units and other plans to make high streets worth visiting.    

While this is an interesting matter to follow, high streets and town centres are not going anywhere, and any ‘crisis’ is unlikely to change that.  The UK high street plays a crucial role in generating income for the UK economy.  The government’s high street scheme is therefore welcomed, if the result boosts infrastructure, improves the environment where retailers operate and increases consumer footfall.  Now, more than ever, businesses must remain conscientious of consumer behaviour and market trends.   

This article is for general commentary only and does not constitute legal advice.  If you would like to discuss any of the issues discussed in this article, please get in touch.

Cheyney Goulding LLP, solicitors in Guildford, Surrey

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