Category: Covid-19 update

EPC Contracts

We have reviewed the EPC contract and provided a legal opinion on force majeure clauses (re Covid-19) and its implications.

Engineering, procurement, construction and commissioning (EPC) contracts are the most common form of contract used to undertake construction works by the private sector on large-scale and complex infrastructure projects. Under an EPC contract, a contractor is obliged to deliver a complete facility to a developer who needs only turn a key to start operating the facility, hence EPCC contracts are sometimes called turnkey construction contracts. In addition to delivering a complete facility, the contractor must deliver that facility for a guaranteed price by guaranteed date and it must perform to the specified level. Failure to comply with any requirements will usually result in the contractor incurring monetary liabilities. The EPC contractor coordinates all design, procurement and construction work and ensures that the whole project is completed as required and in time. He also may or may not undertake actual site work.

Key features of an EPC contract are:

  • A “firm” contract price with limited ability for the contractor to claim additional amounts.
  • A fixed date for project completion with limited ability for the contractor to claim an extension of time (EOT).
  • Single point responsibility.
  • Contractor responsibility for proving the performance and reliability of the completed asset or facility.
  • A focus on the long-term performance of the asset or facility and its ability to generate revenue.

Xena Semikina

Senior Solicitor

xena@sterlinglawyers.co.uk

 

Michael Iatsukha

Trainee Solicitor

michael@sterlinglawyers.co.uk

What is the impact of coronavirus on immigration detention centres?

Throughout the last two months, we have seen that the coronavirus is very contagious; we have witnessed that it can spread very quickly, especially in crowded places. Immigration detention centres are some of the places where an outbreak of the coronavirus will put the lives of many immigration detainees at risk.

Furthermore, a recent article published in the Guardian highlights another issue with immigration detention centres; that there are immigrants who have been unlawfully detained. As a result of the coronavirus outbreak, the release of some detainees has been delayed. There are two reasons for this:

1) detainees who were particularly vulnerable to contracting coronavirus were placed in solitary confinement for a minimum of three months;

2) detainees cannot be removed to their home countries because of the pandemic. This means that the detention of such detainees may have become unlawful.

According to the leaked data from the Home Office released by the Guardian:

The Home Office is only supposed to detain people if there is a realistic prospect of removing them from the UK. Yet two people who have received letters telling them to stay in their cells for the next three months come from countries on a Home Office list of about 50 that officials cannot currently remove people to because of coronavirus.’

(‘Revealed: at-risk immigration detainees ‘to be put in solitary confinement’’ by Diane Taylor, published in the Guardian on 02 April 2020)

If an individual is still in detention that is unlawful, it may be possible to:

  • Challenge the unlawful detention in Court;
  • Challenge the detention procedure;
  • Ask the Court for compensation; and
  • Ask the Home Office or the detention centre for a formal apology.

Sterling Law is here to help those who have been victims of unlawful detain. In addition to the above, we can advise whether a human rights claim can be brought depending on how long the detention was and what treatment was received in detention.

If we are instructed on behalf of an individual to challenge their unlawful detention at Court, we will represent and guide them throughout the entire court process. Our immigration specialists have significant experience in dealing with the same or similar complex immigration cases.

If you or a member of your family are in a similar situation, or you know somebody who has been detained unlawfully, please contact us on contact@sterling-law.co.uk .

Signing documents during the Covid-19 outbreak

As a lot of legal professionals are working from home at the moment, one of the main questions is how to execute remotely documents that require signatures.

An electronic signature can take a form of the typed name in the contract, pasting the signature in a form of an image into the contract, making a signature through Docu Sign or Adobe Sign, using a finger or stylus and touchscreen to sign electronically, scanning a printed document with a signature on it.

Use of electronic signature under English law

Simple contact

Indeed, according to the Law Commission, an electronic signature can be used to execute a document. The signatory party should intend to authenticate it and formalities for the execution of the documents have to be satisfied.

Deed

One of the key requirements for the execution of a deed is that it has to be signed in the presence of a witness. The Courts have stated on numerous occasions that a deed cannot be witnessed through a video call. This, of course, poses some concerns during the pandemic.

One way to solve the issue is for either two directors to sign the deed or director and a secretary. Those two parties can one after another sign the deed electronically. The parties will need to stay the date when the deed was executed and delivered.

One of the common questions that arise is how can one sign a document if they are unable to print it. There are several electronic platforms (DocuSign or AdobeSign) that allow signing the deed electronically. One can also type their name into the contract and this signature will be valid.

While it is clear that the simple contract can be executed by an electronic signature, it is less obvious how the more complex contracts should be approached. We, therefore, advise those with more complex issues to receive professional legal help in order to ensure that any transaction goes smoothly.

Still unsure? Speak to us: 07 305 966 531 or contact@sterling-law.co.uk

Self-employment income support scheme (SEISS) – what you need to know

In response to COVID-19 pandemic, the government announced the Self-employed Income Support Scheme (SEISS) for those self-employed and members of partnerships whose income has been lost due to the coronavirus outbreak.

This scheme will allow you to claim a taxable grant worth 80% of your trading profits up to a maximum of £2,500 a month, for 3 months (but may be extended).

The grant will be subject to Income Tax and National Insurance contributions but does not need to be repaid.

Unlike Coronavirus Job Retention Scheme, the SEISS allows recipients of the grant to continue to work or take on another employment.

Eligibility:

  • You have filed a tax return for 2018/19,
  • You have continued to trade into the tax year 2019/20,
  • You intend to continue to trade into the tax year 2020/21 and trading when the application is made (or would have been trading had the coronavirus outbreak not occurred).
  • You have lost trading profits due to coronavirus.

Trading profits need to be no more than £50,000 and more than half of the individual’s total income for either:

  • the tax year 2018/19, or
  • the average of the last three tax years (2016/17, 2017/18 and 2018/19)

 

You can make a claim for Universal Credit while you wait for the grant. You should record the grant as part of your self-employment income, and it may affect the amount of Universal Credit you get. This will not affect Universal Credit claims for earlier periods.

The SEISS is intended to make payments by early June and claims will be backdated to March and paid in one instalment. There is no application process at the moment. HMRC will use tax returns already submitted to contact those who are eligible by mid-May and invite them to apply online.

If you require any assistance with applying for the SEISS scheme we provide such assistance via our sister company Sterling & Beanland[1] for FREE provided you sign a 12-month contract  with them for accounting services. Please speak to Dina Taimunkenova +44(0)745 068 4215 or email at dina@sterling-beanland.co.uk for further assistance.

[1] CIMA accredited city-based firm of Chartered Management Accountants.

Tier 2 & Covid-19

Recently, the government has issued immigration guidance for Tier 2, 4, 5 and sponsors in response to COVID-19, and as a managing partner at Sterling Law, I would like my Corporate clients to stay updated. This update is related to changes in reporting obligations of Sponsors, sick and furlough leave of the Tier 2 employees:

General rules

You do NOT need to report Tier 2 employee absences related to coronavirus (absences due to illness, their need to isolate or inability to travel due to travel restrictions);

You do NOT have to notify the Home office if you’re sponsoring employees who are working from home due to coronavirus;

Sick leave and Statutory Sick Pay is also available for Tier 2/ Tier 5 employees as it does not constitute public funds. For more details click here.

You still MUST report a reduction in your Tier 2 migrant’s salary within 10 days. (let us know if you require assistance)

You CAN furlough your Tier 2/ Tier 5 employee (However, certain conditions may apply, for example, you will require the furlough agreement to cover certain points. For further details, please speak to us.)

If a new employee is applying to switch into Tier 2 in the UK, they can do so inside the country until 31 May 2020 if the requirement previously was to apply from outside the UK. The applicants will still need to demonstrate that they meet the requirements of the visa they are applying for and pay all the applicable fees, including Home Office fees and IHS. Furthermore, expiring Tier 2 visas are now extended to 31 May 2020.

If your potential Tier 2 employee has been issued CoS, applied for a visa and is just waiting for the decision on the application, they can start working for you BEFORE they receive their visa decision. (conditions apply)

Ongoing Sponsor Duties

If a Tier 2 visa has been granted but the employees cannot travel to the UK:

The Home Office has not yet confirmed its position on this. The general rule is that the start date cannot be posted beyond 28 days from the start date on the CoS or 28 days from when the visa is issued. If it’s postponed to longer, you usually would have to apply for a new one. At the moment, the Home Office has not confirmed whether the rule will be waived.

Unpaid leave due to the Covid-19:

The general requirement is that Tier 2 migrants cannot have unpaid leave for more than 4 weeks per calendar year. The COVID-19 immigration guidance provides that there is no need to withdraw sponsorship if absence from work is due to COVID-19.

Employees stacked abroad

If your Tier 2 employees are currently outside the UK, they may get caught by a cooling-off period which would prevent them from returning to the UK on Tier-2 visa for 12 months. This requirement doesn’t apply if the salary is above £159,600 or if they are applying for a Tier 2 Intra-company transfer visa and their salary is above £120,000 or if the CoS was granted for three months or less. Furthermore, the ILR might also be affected if an employee is outside the country for over 180 days per year. The current guidance says that the Home Office will consider serious and compelling reasons such as illness or nature disaster. Coronavirus has not been added to the list yet.

Conducting the right to work checks:

Due to the coronavirus, the following rules have been adopted for the right to work checks:

· The scanned documents for checks can be sent via e-mail or through a mobile app
· An employee should hold the documents in front of the camera for the employer to
check the copy
· You should record the date when the check was made and mark it as “adjusted check undertaken due to Covid-19”

In addition, you might be aware that the government introduced a package of temporary business support measures including Coronavirus Job Retention Scheme, Self-employment Income Support Scheme, Business Interruption Loan Scheme, deferring VAT and self-assessment payments and other measures. You can also visit Sterling Law COVID-19 update page for additional information and useful COVID-19 related templates (e.g. Working from home Policy, Furlough Agreement etc.)

If you require any assistance with applying for Coronavirus Job Retention Scheme/ Business Interruption Loan Scheme and other supporting measures we provide such assistance via our sister company Sterling & Beanland if you sign a 12-month contract for accounting services (if you are not a client yet). Speak to Dina on 0745 068 4215 or email dina@sterling-beanland.co.uk

We value you as a client and we will answer your immigration, employment, commercial and other business-related questions for FREE during this period: please do not hesitate to send your questions to info@sterling-law.co.uk – we are here to help!

 

Force Majeure during Coronavirus Outbreak

A lot of businesses were affected by the Coronavirus outbreak in one way or another. The questions arise as to the rights and obligations in cases where the ability to perform under leases has been severely impaired. We will, therefore, try to explain the notion of force majeure under English Law and in which cases can it be invoked.

Force majeure

Force majeure is when the party is prevented from performing its obligations by events outside of its control. Although a lot of countries recognise ‘force majeure’ as a statutory right, common law does not recognise this concept.

 

However, parties might choose to insert a force majeure clause into their contract which will then be subject to the usual contractual rules. As the provisions are only protected by contract law, it is necessary to assess them on the case by case basis.

 

Doctrine of frustration

 

The closest the common law gets to the force majeure is the doctrine of frustration. It was firstly adopted in the case of Tylor v Caldwell where the defendant could not perform its obligations because the rented property got burnt down in a fire. The Court indeed excused the defendant from the performance. Now the doctrine is codified in the Law Reform (Frustrated Contracts) Act. The doctrine does not apply where an event or a problem makes the contract more difficult or expensive to perform. It would, however, apply where it is impossible to perform. In the circumstances of the coronavirus outbreak, the doctrine will apply in cases of travel agents, who cannot perform their obligations because borders are closed.

 

When it comes to a tenancy agreement or lease, the doctrine may be applicable. However, for now, there are no cases where the Court would found the lease to be frustrated. Thus, there is a hope that the Court might find the lease to be frustrated if the tenant cannot use the premises during the outbreak.  However, the threshold is set quite high and every case requires personal assessment.

 

This issue is particularly complex, and if you require assistance with your lease during the outbreak, our experienced lawyers are here to help.

Contact us on contact@sterling-law.co.uk

UK VISA/ LEAVE TO REMAIN COMES TO AN END IN THE NEXT 3 MONTHS: WHAT TO DO?

Sterling Law recommendation:

If you already have leave in the UK and planned to remain and apply to extend your visa here, you MUST proceed to do this. The reasons are:

  • You may become an overstayer if you do not submit your visa application or temporary visa extension request before your current leave is expired.

  • Temporary “Automatic” extensions of visas (for those whose leave expires after 24th January 2020 and who are unable to leave the UK due to the Coronavirus outbreak) will be available only until 31st May 2020 (unless you are working for the NHS).

  • Although the visa centres are currently closed, you can still submit your application online and attend an appointment once the visa centres are opened. The Requirement to enrol biometrics within 45 days has been waived!

  • If you already applied for Tier 4 or Tier 2/ Tier 5 visa and are waiting for the decision on your application, you can start your course (Tier 4 migrant) or work (Tier2/ Tier 5 migrants) BEFORE YOUR VISA APPLICATION HAS BEEN DECIDED if certain conditions are met.

  • You can apply from the UK to switch to a long-term UK visa until 31 May 2020, including applications for which you would usually need to apply from your home country.

 

And one more practical recommendation: significant delays and a BOOM of immigration applications are expected after the Coronavirus outbreak is over. It is important to be first in the queue when travel becomes easier and when visa centre facilities re-open, so your plans are not delayed. Also, case preparation and obtaining the required documents and information takes time: do not delay – start preparing your case now! If you require our assistance or have any questions – just email us at info@sterling-law.co.uk

UK Intellectual Property Law in light of COVID-19: revised UK IPO’s practices

COVID-19 is posing unprecedented challenges to all business aspects and areas of law, including Intellectual Property. Various Intellectual Property Offices (IPOs) across the globe have been adjusting the services they provide to the current circumstances. The UK IPO is not an exception and is alike considerate of the threats the pandemic poses to individuals and businesses in the UK. With an intent to ensure that those dealing with the UK IPO are not treated unfairly, the Office has made certain temporary alterations to its practices. Some information on the most notable changes introduced is digested below.

UK Intellectual Property Law: New applications

On the one end of the spectrum, submitting new applications for designs, patents, trademarks or supplementary protection certificates (SPCs) is possible with no changes made. The filling dates of IP applications, therefore, are left unaffected by the pandemic and remain the same.

On the other end of the spectrum, certain amendments have been introduced to the ways of filling. Provided that the UK IPO has closed access to all of its buildings until further notice and is unable to accept mail or dispatch it, all rights holders should utilise online services and email instead. Further to it, the UK IPO has established a mailbox for the management of the services that are not available online.

Deadlines

Pre-24 March 2020. Should you have not met the deadline coming about before 24th of March 2020 for the reasons pertaining to the outbreak of COVID-19, it is worth contacting the UK IPO to explore the options available. The UK IPO has designated that in situations where such a failure to meet the deadline has caused a loss of rights, it may well be possible to restore these rights, should the circumstances allow.

Post-24 March 2020. As has been stipulated by the UK IPO, the 24th of March 2020 and all subsequent days are proclaimed to be “interrupted days” until further notice. In plain words, any deadlines in respect of patents, designs, trademarks, and SPCs would be automatically extended until the end of the “interruption period”. Nota bene, the alterations are not applicable to the time periods set under various international IP treaties. The UK IPO will provide a minimum of 2 weeks’ notice prior to ending the “interruption period”.

Please also be mindful, the 17th of April 2020 has been set to be a review date on which the above-referred “interruption period” may either be extended or brought to an end (inclusive of the 2 weeks’ notice period), depending on the circumstances. Having said that, as per the current situation in the UK, it is highly unlikely that the period will be terminated.

In addition to a great degree of flexibility that has already been implemented into the dealings with the UK IPO, to relieve the pressure on the parties in the short term, the vast majority of the new deadlines issued by the UK IPO are longer than would be under the ordinary circumstances. For instance, those filling applications for trademarks will have 4 months to respond, instead of the usual 2.

Nonetheless, regardless of the relaxation of the deadline requirements, the UK IPO still rightly asks the right holders to try to adhere to the original timings to avoid the Office being overwhelmed with work upon the termination of the “interruption period”.

Hearings

With regard to the Tribunal services, where possible (viz. it is within the UK IPO’s discretion), any new set deadlines would be doubled, such as the period for filing submissions or evidence. Moreover, it is possible to extend the time to appeal a trademark decision.

Important to account, as of now, no hearings in person are to be held until the 1st of June 2020 (this date is subject to review). Having said that, telephone, Skype are other feasible virtual methods are being used to hold the hearings.

UK Company Names Tribunal requires specific attention. As has been specified, existing claims are not subject to any progress. New claims can still be lodged via email, however, these would be electronically recorded and would not be processed as of now.

Apart from the certain modifications that have already been inaugurated (as outlined above), the information provided thus far is subject to a constant review and further alterations are possible.

We, therefore, recommend those seeking more information to visit:

·      Alterations to Tribunals and Hearings (last updated 2 April 2020)

·      Alterations to services relating to

Trademarks and Designs (last updated 9 April 2020)

–  Patents (last updated 30 March 2020)

Please note, this update is a synopsis of the guidance distributed to the public by the UK IPO at the time of writing. The update is not to be regarded as legal advice and is not actionable per se (professional legal advice must be sought first).

Written by Vladislav Shutko, Legal Assistant at Sterling Law.

 

If you require assistance with intellectual property legislation, feel free to contact our IP specialist Katsiaryna Pazniak:

katsiaryna@sterlinglawyers.co.uk

 

 

Force Majeure clauses

The coronavirus pandemic not only affected our day-to-day lives but also caused major damage to global supply chains. In March 2020 75% of companies reported some kind of disruption to their supply chain and especially delays on orders from China.

The China Council for the Promotion of International Trade has issued more than 5,600 force majeure certificates. Those certificates are meant to acknowledge the pandemic as a force majeure. This will allow a business to escape any liability for non-performance.

Such clauses in contracts give effect to exclusion of party liability if there are events that are out of the party’s control. It can exempt a party from performing its contractual obligations, facilitate discussion and/or modification to the contract or cause termination of the contract.

Force Majeure clauses are important which is illustrated by findings of around 72% of contacts having those provisions included.

If you require legal assistance, contact us:

contact@sterling-law.co.uk

Or book your consultation with us through Telmie app and enjoy 50% discount.

 

Read more on how Covid-19 affects business activity in the UK.

Covid-19: Furlough procedure, business support

Calls to our phones increased dramatically. In fact, thousands of employers contacted Sterling Law regarding legislation relating to Covid-19, such as furlough procedure.

We would like to let you know that we are offering advice on:

Furlough (how to apply for grants, what procedure to follow, how to  pick which employees go on furlough, notice templates)

IF YOU FAIL TO MANAGE THE PROCESS CORRECTLY, YOU WON’T BE ABLE TO ACCESS THE EMERGENCY GRANT

Working from home policy

Redundancy (when employees don’t want to take furlough leave)

GDPR policies for working from home

Updated GDPR policies for clients for online meetings

Letter of change to employment agreements

Termination notices

Zero hour workers agreements

Services agreements with freelancers

Company restructuring

Loan applications

Debt recovery

Breach of contract 

If you have any questions and would like to speak with our UK-based business lawyers, call us on 07 305 711 059 or email to contact@sterling-law.co.uk

You can access official guidance here.

Read more about our Covid-19 legal support here.