The world of insolvency has been becalmed over the last 18 months as a result of Government support and restrictions on creditor action as part of its response to the Covid 19 pandemic which removed a number of the typical pressure points on directors.
As we head into a new phase of ‘living with the virus’, the support and restrictions are being withdrawn. The furlough scheme ended and some of those restrictions expired on 30 September 2021. From 1 October, the heat was back on or at least partially. There are still some restrictions on creditor action.
Address labour market shortages by becoming an Employer Sponsor.
Bermans specialist Business Immigration team provides professional advice to UK and international businesses and investors.
Since the UK exited the EU there has been substantial changes to the immigration rules and there is an opportunity to recruit people from anywhere in the world.
Read more details about the new UK immigration system here.
The Government launched a consultation on 23 September 2021 regarding proposals to reform the Flexible Working Regulations 2014 to make flexible working the default position.
Currently, an employee has the right to request flexible working arrangements after 26 weeks’ service but the employer can refuse such a request for any of the following reasons:
extra costs that will damage the business
the work cannot be reorganised among other staff
people cannot be recruited to do the work
flexible working will affect quality and performance
the business will not be able to meet customer demand
there is a lack of work to do during the proposed working times
the business is planning changes to the workforce.
As we are moving towards the second anniversary of the pandemic it is worth pausing to reflect that, after some initial reluctance, technology has been quite successfully embraced both by lawyers and also by the courts to keep the system running.
Obviously meetings between lawyers and clients have largely been replaced by virtual contact through Microsoft Teams and Zoom, but virtual contact has now taken a firm foothold in relation to the litigation process.
The Court of Appeal has recently handed down judgment in Wood v Commercial First Business Ltdand Others and Business Mortgage Finance 4 plc v Pengelly [2021] EWCA Civ 471, on the issue of broker “secret commissions”.
These decisions have caused something of a storm in the asset finance industry but the implications are not limited to asset finance, and somewhat surprisingly in our view the NACFB is recommending “both regulated and unregulated firms, working in all sectors, should be transparent about their commissions and fully disclose the amount of commission received”.
In our view it may be a little premature to raise the white flag on the question of disclosing the amount of commission to invoice finance clients unless they ask for that information. In both Wood and Pengelly, the broker’s terms and conditions notified the mortgagors that the broker “may” receive fees from creditors with whom it placed mortgages. If the terms had stopped here, then these would have been “half secret” cases (with the wording resembling that in Hurstanger Limited v Wilson [2007] 1 WLR 2351). However, the terms went on to promise that in the event commission was paid, the mortgagors would receive notification of the amount. Given the finding of fact that no such notification was received, the court correctly categorised these as fully secret cases.
As long ago as 2001 in the landmark case of Royal Bank of Scotland Plc v Etridge [2001] UKHL 44 the House of Lords significantly extended the circumstances in which a financier will be put on constructive notice of misrepresentation or undue influence committed against an individual executing a Guarantee or other security, but there remains a great deal of misunderstanding of the relevant principles.
The mischief addressed 20 years ago by the House of Lords arose from wives regularly being misled or unduly pressured by husbands into signing Guarantees or executing Charges in favour of creditors, but the protection afforded by the law extends much further.
Aleena joined Bermans in 2019 and is a Litigation Assistant in the Asset Based Lending team. Aleena predominantly deals with prelegal correspondence and process driven claims and enforcement.
Madeleine joined Bermans in October 2021 and is a solicitor in the Commercial department.
Before joining Bermans, Madeleine graduated from the University of Liverpool with a first class Law degree and then completed the LPC MSc at the University of Law in Chester. She completed her training contract at an international law firm.
Madeleine can assist with reviewing and drafting commercial contracts, agreements and policies.
Outside of work, Madeleine enjoys travelling and worked in-house as a legal intern in Singapore during a university summer break. She also enjoys running and has recently started photography as a new hobby.
The duty to make reasonable adjustments is triggered if an employee meets the definition of disability contained in the Equality Act 2010. The employee must have a physical or mental impairment which has a substantial and long-term adverse effect on their ability to do normal day to day activities. There is a common misconception that disabled employees can ask for any changes they like and say they are ‘reasonable adjustments’. The reality is somewhat different. The duty to make reasonable adjustments only arises in specific circumstances, and the requirement is to make ‘reasonable’ – rather than any – adjustments. In the recent case of Aleem v E-Act Academy Trust Limited, the EAT has looked at whether permanent pay protection is a reasonable adjustment when the employee can no longer do the job for which they were originally employed.
Employers must not treat an employee badly because they have made a protected disclosure. If the main reason for dismissing an employee is that they made a protected disclosure, the dismissal will be automatically unfair. Usually, it is the facts known to the person making the decision to dismiss that are relevant to an unfair dismissal claim, rather than any other facts which might be known to other employees. In Royal Mail v Jhuti, however, the Supreme Court confirmed a narrow qualification to this rule: if a manager decides that an employee should be dismissed for one reason (for example, whistleblowing) but hides that behind another false reason (such as performance or conduct) which the dismissing officer adopts, then the reason for the dismissal is the hidden reason.
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An update on some recent developments
Aleena joined Bermans in 2019 and is a Litigation Assistant in the Asset Based Lending team. Aleena predominantly deals with prelegal correspondence and process driven claims and enforcement.
Solicitor