COVID-19 Consumer Legal Newsletter: 30/06/2020 – Issue 4
Welcome to the fourth COVID-19 update from Beagles Insight—the research arm of the LegalBeagles Consumer Legal Forum. This free advice forum has over 100,000 registered users and has helped members of the public deal with over 800,000 legal problems since it started in 2007.
Insights from the Forum
Overall, we have seen an 6.78% drop in users of the forum compared with last month but an increase in questions about leaving financing plans. This suggests that many consumers may still be struggling with repayment plans on financed purchases and looking further down the road at finding debt avoidance measures. However, we are seeing some slowing down in the month-on-month use of the employment forum, suggesting that some of the COVID-19 related employment issues may be coming to a resolution.
On the employment forum we have seen a drop of 3,912 unique page views in the period between 23rd of March 2020 and 23rd of June 2020, and the same period last year. Upon closer examination it appears that despite the enormous growth in COVID-19 related traffic, there has been a significant drop-in day-to-day employment disputes. This points to the fact that people’s current working conditions, either on furlough or working from home, are keeping workplace disputes at bay.
Court claims meanwhile have seen a major drop from 124,090 unique views to 69,131 in the same period. Further analysis of the incoming questions suggests that no new debt claims are being issued. However, communication with existing defendants in the system is continuing, with companies appearing to be encouraging settlement.
There have been a growing number of questions surrounding the triggering of force majeure clauses in contracts and the impact of losses of deposits for services ranging from wedding suppliers to summer school programmes. For example, cancellation of wedding suppliers or school summer programmes cancelling services and citing force majeure as a reason to retain customer deposits.
Recently the French High Court ruled COVID-19 a Force Majeure event. Given the unprecedented nature of the Covid-19 pandemic and the actions of governments around the world in response, it is likely that Covid-19 would constitute a force majeure event under many force majeure clauses.
A contract with a force majeure clause may have a variety of consequences for both parties however, does not necessarily mean that the parties will be protected from liability for failing to perform or delay in performance .Multiple visitors to the forum are already reporting cancellations of contract invoking the force majeure clause as a reason to be excused from obligations and/or liabilities under the contract, without any damages being payable.
There are 4 key themes relating to COVID-19 and employment at the moment:
Furlough pay: questions are still arising on whether furlough pay has been calculated correctly, particularly in unusual circumstances (e.g. variable pay, or recent joiners before the furlough date). We also believe that as flexible furlough is introduced this could potentially lead to a resurgence of questions related to whether someone has been paid correctly
Redundancy/restructuring: As the furlough scheme tapers off in the next couple of months and companies start assessing their potential to re-open, many will be concerned about their ability to meet salary obligations. This will likely lead to the need for redundancies which for some will require a 30- or 45-day consultancy period. As we move towards October, we may see further rises in redundancy consultations as the furlough scheme winds down, depending on companies’ ability to recover post re-opening.
Safe working environments: Whilst guidelines for some industries have been put in place, there is concern amongst employees as to whether these are sufficient or are being adhered to in their specific company. This has led to questions around an employee’s right to refuse to work if they feel they are in an unsafe working environment and what the impact on their job will be if they do this.
Return to work: Employees have raised questions about their obligations to return to work when requested if other extenuating circumstances exist such as childcare obligations, due to schools remaining closed. An employer asking an employee to return to work is a reasonable instruction which – if not actioned by the employee – could legitimately lead to disciplinary action and potential dismissal. However, in light of the current situation, further consideration of individual circumstances are necessary. As the childcare burden falls disproportionately on women, there is potential for significant discriminatory removal of female workers from the workforce.
It is becoming clear from multiple users’ descriptions of their ongoing claims that the civil courts are currently struggling to implement the administrative procedures necessary to deal with the backlog of cases whilst also maintaining social distancing requirements. One claimant described being given a court date, then being offered a telephone hearing or a paper hearing. Another describes being given a telephone hearing but no date. Users have also described being given hearing dates for low-value money claims, despite in- person hearings not going ahead for low-value claims. They describe being given dates they cannot attend, then receiving no reply when they call or email. Overall, courts appear to be encouraging claimants towards decision on papers or mediation and settlement.
The Good, the Bad and the Ugly
In this section, we highlight best practice, who’s not doing enough and what could be improved.
The Competition and Markets Authority (CMA) is being pro-active in investigating travel services, wedding suppliers and education providers and launching a taskforce into unpaid refunds. The CMA has also made statements on wedding suppliers’ duties, but greater understanding of force majeure clauses is needed to prevent consumers issuing a raft of claims against suppliers and/or suppliers issuing claims against consumers for non-payment of contracts for supply.
There have been reports of local authorities not dealing with issues such as noise complaints and anti-social behaviour due to concerns over social distancing. It seems clear that solutions must be found to address this, particularly as the lockdown starts to lift and the number of potential issues begin to rise.
Similarly, there have been reports of housing associations refusing to carry out visits. Again, it is necessary to implement solutions that protect the safety of both residents and association representatives, whilst also allowing for visits to take place.
Could do better
There have been a number of questions raised seeking clarification of the rules around mask-wearing and medical discrimination. Individuals are seeking to understand private business’s right to refuse service if consumers don’t wear a mask, and if this constitutes discrimination if they have a medical condition. This also applies to passengers’ rights to refuse to wear a mask for medical reasons on public transport and what the potential punishment could be for this. There is clearly a need for more nuanced advice on mask-wearing in public places as the population begins to move around more and private businesses start to re-open.
Greater transparency and communication from employers as to whether the furlough calculation is simply 80% of the basic salary or if there are other contributing factors. This will be an ongoing need as the flexible furlough scheme is introduced with further complexity added to the calculations, employers need to take the time to explain how pay is being calculated.
What can be done by Policymakers?
On force majeure – Meaningful information and guidance on understanding contracts and the limits of force majeure clauses is urgently required for individual consumers and small businesses in order to avoid some of the inevitable disputes that are likely to arise from this issue. The HM Courts & Tribunals Service, Citizen Advice, Association of Business Insurers and others can contribute to bringing clarity to both businesses and consumers as to their rights in relation to cancellations and refunds.
On employment – The Health and Safety Executive have a staff resource that regularly performs risk assessments on all manner of working environments. This should be leveraged to allow employees to request inspections from an assessor if their employer is not meeting guidelines.
The 21-day notice period for parental leave should be waived allowing more parents to use this for childcare. Equally, it should be highlighted to employers that parental responsibility is considered legitimate grounds for extending furlough if they have been furloughed since the 10th June. Whilst this would be on a tapering scale, it may again provide a solution for many employers.
On Courts – Significant work needs be undertaken to implement new processes in the civil courts system to manage the ever- increasing backlog of cases. A recent review by the Civil Justice Foundation and the Council for Legal Education suggests that remote hearings continue to be a viable option for many kinds of claims, with Remote Courts Worldwide suggesting that the crisis could be a catalyst for increased use of remote courts. However, the report suggests that this would require investment in the system and support for judges in order for it to be implemented effectively. This would suggest that a unified and process-driven approach should be implemented allowing for the expansion of remote courts in order to cover the backlog of cases and for future management of certain types of cases, where appropriate, freeing up courts for in-person hearings when these are required.
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