The global COVID-19 pandemic continues to dominate news headlines and all of our thoughts. Each day sees new measures and new challenges in an evolving situation which is truly unprecedented in modern times.
At Long & Humphrey, we have implemented our business continuity plan and put in place measures to enable us to continue to provide first rate service to our clients, whilst protecting the health and safety of our staff, our clients and our Island.
As the Government’s stringent lockdown measures continue, it is clear that the daily lives of individuals and businesses in the Isle of Man will continue to be disrupted for many months.
Whilst we are living and working in uncertain times, we remain committed to assisting our clients and their businesses. We have compiled this note on some issues and challenges you may face in the coming months. We hope the following information is helpful; we remain available to assist with any issues as they arise. All staff can be contacted by email to their usual address, or by telephoning the usual office number +44 1624 651951.
Contracts that were negotiated at more normal times may now be tested as a result of COVID-19. Many businesses are being put under stress as a result of supply chains and ordinary operations breaking down due to borders and offices closing, and remote working of staff. It is highly likely that breaches of contract will occur, so it is advisable to review your contracts and consider your position now. Parties likely to be in breach should think about any measures they can introduce to reduce that likelihood, for example agreeing an amendment to the terms of the contract. Those who expect that the other party may breach their contract need to plan to mitigate any losses that may arise, perhaps by making alternative arrangements. Where a party fails to perform its obligations under a contract, it may be able to avoid liability by relying on a force majeure clause in the contract or, if no such clause exists, claiming that performance of the contract has been frustrated
A force majeure clause is a contractual clause whereby the contracting parties agree that the contract may be varied or suspended in agreed exceptional circumstances. If a contract contains such a clause and the COVID-19 pandemic constitutes a force majeure for its purposes (which will very much depend upon the terms in which it is drafted and the particular circumstances of the contract) it may be of great assistance to a party which is unable to perform its obligations.
In order to rely upon a force majeure clause, a party will need to demonstrate (1) that the COVID-19 pandemic falls within its scope, (2) that the pandemic affected performance of the contract in the way specified in the clause (e.g. ‘prevented’ or, less strictly, ‘delayed’), (3) that it has taken reasonable steps to mitigate the effect of the pandemic, and (4) that the pandemic actually was the reason that the contract was not performed (if you wouldn’t have been able to perform regardless of the pandemic, you will not be able to rely on the clause). In those circumstances, the force majeure clause will typically provide that the contract (or parts of it) will be suspended whilst the force majeure circumstances subsist, and that the non-performing party will not be liable to the other parties during the suspension, and the clause may provide that the contract can be terminated by either party upon the occurrence of a force majeure event.
If the contract does not contain a force majeure clause, or if the criteria above are not met, a party which is unable to perform its obligations may seek to rely upon the doctrine of frustration.
The doctrine of frustration is a common law remedy that is narrowly construed by the courts. Performance of a contract is frustrated if, after the formation to the contract, an event occurs which makes the contract illegal or impossible to perform or something completely different to what was intended when the parties entered into the contract. The doctrine of frustration is not easy to apply and the contract must not make specific provision for a set of circumstances or an event that might otherwise frustrate the contract.
If the circumstances surrounding the contract are such that an event occurs that is beyond the control of the parties, then the contract may be frustrated, meaning the contract is brought to an end and both parties are released with immediate effect from their obligations under the contact. The Law Reform (Frustrated Contracts) Act 1944 sets out the legal effect of a contact that is discharged due to frustration.
Whether a contract is frustrated as a result of COVID-19 will depend upon its terms and whether, as a result of COVID-19, and as stated above, it is illegal or impossible to perform the contract or the contract has become something completely different to what was intended by the parties when the contract was entered into.
Examples of events that are likely to be considered as leading to the frustration of a contract are:
1. The Isle of Man Government passing emergency legislation in order to deal with the COVID-19 pandemic, as a result of which it is either illegal or impossible for the contract to be performed.
2. An event being cancelled as a result of the exceptional circumstances that have arisen due to the COVID-19 pandemic. The hirer of a hospitality box during the TT races will not be required to pay the agreed fee due to the cancellation of the event frustrating performance of the contract.
3. A personal contract cannot be performed as the party who was to perform it has died.
2. Company administration
In spite of the current situation, the statutory and regulatory obligations of companies remain. In addition, companies must make appropriate provision to enable their day to day operations to continue in as close to a normal fashion as possible.
Many companies will already hold virtual board meetings, where one or more directors attend via telephone or video conferencing facility. Such meetings are generally permitted under a company’s articles of association, but if your articles do not contain such a provision you may be able to rely on the statutory position.
The Companies Act 2006 expressly provides (as section 106(2)) that “(2) A director shall be deemed to be present at a meeting of directors if — (a) such director participates by telephone or other electronic means; and (b) all directors participating in the meeting are able to communicate with each other”.
The Companies Act 1931 does not contain such a provision, so it will be necessary to refer to the articles of association of the company in order to determine how to proceed, but many articles bestow broad powers on the directors as to how to govern their proceedings.
In most cases, it will be possible to propose resolutions to shareholders in the form of a written resolution, although care should be taken as this may result in a greater percentage of votes being required in order for the resolution to be passed.
If a company is required to hold an AGM (companies registered under the Companies Act 2006 are not, and many of those registered under the Companies Acts 1931-2004 have elected to dispense with the requirement to hold an AGM), it may be possible to delay the meeting until COVID-19 restrictions have been eased or lifted, but that will of course depend upon the length of the delay and when the company’s last AGM was held.
If permitted by the Company’s articles of association, it may be possible for general meetings to be held virtually. For detailed information regarding virtual general meetings, please see Eleanor Heywood-Jones’ recent article on our website www.longandhumphrey.com/news.
Filing obligations remain and deadlines will, unless expressly stated, be enforced. Many agencies, such as the tax authorities, have announced concessions, but in some cases these are only available to companies who apply for them.
The Isle of Man Companies Registry is accepting documents, but its public counter is closed, so extra time should be factored in to allow for documents to be sent by post.
In most situations, it should be possible for documents to be signed during the restrictions imposed to combat COVID-19, whether by utilising social distancing, by way of counterpart clause, or by use of electronic signatures (which is expressly provided for under Isle of Man law).
For detailed information regarding the use of e-signatures, please see Kimberley Sorbie’s recent article on our website www.longandhumphrey.com/news.
The Isle of Man Government has introduced emergency legislation which provides assistance to employers and employees affected by the COVID-19 pandemic. See section 4 of this note for further details.
Emergency legislation has also been passed to clarify that, when determining entitlement to incapacity benefit, self-isolating and being in quarantine will both constitute incapacity.
Where an employee is self-isolating in accordance with Government guidelines, they will be entitled to incapacity benefit and may also be entitled to contractual sick pay, though this will of course depend upon the terms of their contract. If the employee is able to work from home, it may be appropriate for them to do so, in which case they should continue to be paid in the normal way.
An employee who is not ill and is not required to self-isolate in accordance with Government guidelines should report for work as normal (which may include working from home). An employee who is not willing to work will not usually be entitled to be paid, but possible discrimination claims could arise where the employee is in a Government prescribed high-risk group, so caution should be exercised.
Due to the scale of disruption arising from the COVID-19 situation and the pressures it is placing on businesses, it is likely that employers will want to make changes to working arrangements, for example by reducing hours, reducing pay, granting unpaid leave or making redundancies. The extent to which each of these steps can be taken will depend upon the specific circumstances and the terms of employment of the employee in question. We would encourage a collaborative and open-minded approach. The assistance provided by the Government (see section 4 of this note) may influence your decisions, as many other factors such as the requirements of the business and an employee’s need for additional time off in order to care for dependants.
A large number of employers have now initiated their remote working policy. If you are allowing employees to work from home but do not have a formal policy, you should consider putting one in place.
Employers must allow remote working to all employees where remote working is possible, or risk a claim for discrimination. If equipment is required to allow employees to carry out remote working, the employer may have to reimburse each employee for their remote working expenses to allow all employees to work remotely on an equal footing.
Cyber security and data protection
Many offices will already have a secure system by which employees can remotely access their work computer, however if you do not already have this, we would recommend this as an essential component of ensuring remote working is GDPR compliant. In addition, employers should also ensure that employees have password protected internet connections. Employees should be reminded to maintain their obligation in relation to reporting any data breaches to the data officer. You may also wish to consider creating a file removal log to ensure the location of physical files being removed from the office are known at all times.
Where possible, social distancing should be adhered to at all times. Utilising video calling on platforms such as Whatsapp, Zoom or Skype will enable businesses to conduct their day-to-day activities in as normal a way as possible whilst preventing the spreading of COVID-19. Caution is advised, however. Concerns have been raised concerning the security of certain platforms, so care should be taken to ensure that any discussions of sensitive information take place in a secure environment.
Health and safety in the workplace
Where remote working is not possible, different considerations apply. To adhere to social distancing and to prevent the spread of COVID-19, health and safety in the workplace is of utmost importance. Individuals in the workplace must be separated by a minimum of two metres at a time; regular hand washing should be facilitated and encouraged, as well as emphasising the importance of practising hygiene etiquette (e.g. sneezing and coughing into a single use tissue) and providing hand sanitizer and cleaning supplies to ensure that all work surfaces are wiped down regularly. The importance of advising employers of any developing symptoms should also be stressed to employees.
4. Government assistance
The Isle of Man Government has introduced two core measures to support businesses and their workers, the Wage Support Scheme and the Earnings Replacement Allowance.
Wage Support Scheme
In order to help businesses retain staff, the scheme will provide them with a flat rate contribution of £280 per week for each full time staff member. Contributions will be for a maximum of 12 weeks, which will be backdated to March’s payroll. The scheme will be available to a range of sectors, although some (such as financial services and legal) are excluded. The scheme is accessed via an online application which will be available from mid-April on the Government website (covid19.gov.im).
Earnings Replacement Allowance
With the purpose of helping those who are out of work having been temporarily or permanently laid off, or who have lost their self-employed work since 2 March 2020, the allowance will be paid for a maximum of 12 weeks between 6 April 2020 and 28 June 2020. The allowance will provide an income of £200 per week. To be eligible, the claimant must have been earning at least £200 per week prior to the date of claim, be over the age of 18 and be capable of returning to work. This allowance can be applied for from 6th April 2020 via an online application on the Government website (covid19.gov.im).
In addition to these, there are a number of other measures put in place to support affected businesses, including:
1. A £3,000 grant for small businesses or self-employed earners operating in certain industries (tourist accommodation; catering, entertainment and leisure; travel and tour operators; logistics; retail; construction; and education). To be eligible for the grant, the business or self-employed person must declare that it has been financial affected by COVID-19, it was operating on 28 February 2020, it intends to continue trading through the pandemic, and it does not have any overdue payments of N.I., Income Tax or VAT exceeding 3 months.
2. A business interruption loan guarantee scheme which will allow Isle of Man businesses with a turnover of up to £10million to apply for loans of £5,000 to £500,000 for up to 10 years with the support of a government guarantee in favour of the lender. The guarantee scheme seeks to support businesses who would otherwise not qualify for bank support, and will not cover existing debt.
3. A VAT deferment initiative to support businesses with their cash flow, under which any VAT payments due before the end of June 2020 will be deferred.
4. A Strategic Investment Fund which will allow the Government to purchase legal title to assets from businesses for cash if the business demonstrates that such purchase will enable it to maintain employment.
5. A Strategic Capacity Scheme for tourist accommodation providers to put them into a sustainable holding position for the rest of the season.
6. Accelerated Capital Projects to facilitate economic recovery post pandemic.
7. An Adaptation Grant whereby the Government will meet 50% of any costs that are shown to be involved in adapting the business due to COVID-19, provided there is a viable business plan.
8. Streamlined processes by suspending the work permit requirements for existing on-island workers who were in employment as at 28th February 2020.
The information in this note is correct as at 14 April 2020, but, due to the rapidly developing nature of many of the issues caused by COVID-19, some of the information is likely to change. The information in this note is provided for the purposes of general assistance and information only and is not intended to be, and should not be taken as, legal advice. You should not rely upon anything contained in this note without seeking advice as to what is appropriate in your specific circumstances. We accept no liability for any reliance placed on the information in this note.
If you have any questions or queries regarding any of the issues or considerations raised above, we are available to help. In accordance with the Government guidelines, we are practicing social distancing but are always available for a telephone chat or a virtual coffee to help support your business. Please get in touch if we can assist in any way.