The hidden cost of COVID-19 #SolicitorChat with The Law Society.

The COVID-19 pandemic has impacted us all. Whether it’s our most vulnerable citizens, struggling to access justice when they need it most, employees feeling badly treated, or any one of us going for a walk, unsure of whether we’re following the rules or about to be hit with a fine.

We can all have a level of understanding that we’re living through unprecedented times but what should we do if we feel we’re being unfairly treated or taken advantage of? And how can a solicitor help?

Bethan Campbell, Hannah Green, Lucy Densham Brown, and Michael Brierley provided answers to these and more live on Twitter this morning during #SolicitorChat.

Join The Law Society and other firms discussing on Thursday mornings 0900-1000.

My mother is in a care home, but I am concerned about her welfare. Can I remove her?

It depends. If she lacks mental capacity and you are appointed as attorney under a registered Health and Welfare Lasting Power of Attorney or Health and Welfare Deputyship Order (which are rare), yes.

In the absence of these documents, no and you should consider other safeguarding measures.

You should discuss your concerns with your mother and if possible obtain her agreement before reporting your concerns.

Depending on the nature of the concerns it may be appropriate to address these with the Care Home Manager in the first instance before contacting your Local Authority to advise you have a safeguarding concern.

The Local Authority have a duty to investigate and should action be needed then a protection plan will be put in place.

In certain cases the Local Authority may apply to the Court of Protection for specific orders concerning a person’s care which may include moving them.

It may also be appropriate to contact the Police (if a crime has been committed), the NHS safeguarding team (if the individual is an NHS facility) or the Care Quality Commission.

Can my former partner use the pandemic to ignore a child arrangement order?

No, the Court’s will want to see contact with the non-resident parent continuing and will likely consider any disruption not to be in the child’s best interests. There is a specific exemption to the ban on households mixing which allows children (under 18) to move between separated parents whether or not there is a Court Order in place. The only exception to this is if one household is self-isolating either due to having COVID, being contacted by track and trace or returning from a holiday (once foreign travel is allowed). The guidance suggests that it would not be reasonable to put the child at risk by visiting a potentially infected household. Under these circumstances only, contact can be suspended until the period of isolation is over.

Alternative contact should be offered (i.e. video or telephone) and if appropriate, the time made up once the self-isolation period is over. It should be noted that there is provision for a child to visit the other parent if they are self-isolating. This is because the child is a member of both households and is not required to isolate from their own household.

However, the parent who the child is visiting may also need to self-isolate should they have contact with the child.

The Courts do not have sympathy with a parent who uses COVID as an excuse to stop contact and if an order was already in place, the parent who is missing their contact could issue enforcement proceedings.

Should you wish to amend the contact, you should consider agreeing this with the other parent, using out of court dispute resolution options (e.g. mediation) or issuing a variation application rather than unilaterally stopping contact.

The general approach is that COVID should not be used merely as an excuse to amend the status quo.

Could my employer insist I prove I have been vaccinated as a condition of employment?

Employers may lawfully be able to make it a condition of future employment for new employees to prove they have had the vaccine. This will be ok, as long as they don’t discriminate against candidates who are unable to have the vaccine because of a disability or pregnancy.

However, an employer cannot force an existing employee to be vaccinated if you do not want to be. They may be able to take action though if they have good reasons to think it necessary for the job, e.g. if you work in a care home or travel abroad for work.

If not having the vaccine means you can’t do the job, for example because you’re a threat to the people around you, or you won’t be let into a foreign country, then they may be able to dismiss you unless you prove you’ve had the vaccine.

Can my employer reduce my pay if I am off sick due to COVID-19?

If you are off sick due to COVID-19 you could get Statutory Sick Pay (SSP), which is £95.85 per week for up to 28 weeks. An employer cannot pay you less than this figure if you are eligible for SSP. For COVID you could get SSP from day 1 of being off sick.

Your employer does not have to pay you more than this figure unless there is a sick pay clause in your contract of employment which says they will pay more. Look out for words like ‘company’ or ‘occupational’ sick pay. If you aren’t sure, it’s best to get some legal advice.

What are the main risks if I sign a will virtually without expert advice from a solicitor?

Whilst the law has been temporarily changed to allow Wills to be signed without having two witnesses physically present this should only be done as a last resort. Changes to the law, especially to very established law inevitably creates uncertainty.

Without a solicitor assisting not only is there the risk the Will doesn’t do what the person wants it to do, but if signed virtually there is the added risk that it will be invalid. A Will signed virtually still needs clear evidence that the signing was witnessed by two independent witnesses. Logistically this can be quite complicated with a significant number of requirements that need to be followed to give the best chance of the Will being considered valid. Even if you don’t want to come to a Covid secure solicitors’ office, the best way to ensure you have a valid Will in place is to use an expert.

If you require any further information from any legal services, please contact any of our teams, whether individual services or business services.

The contents of this article are intended as guidance for readers. It can be no substitute for specific advice. Consequently we cannot accept responsibility for this information, errors or matters affected by subsequent changes in the law, or the content of any website referred to in this article. © Mundays LLP


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