BTOverview Newsletter by BTO Solicitors LLP, May 2021 Edition

26 May 2021

BTOverview In this edition 

Back (to the Office) For Good?

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Hybrid Working - An Employer’s Guide

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Commercial Property: Important Lessons

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WEBINAR: To e or not to e...?

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Practical Effect of Brexit on Distributors

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Music to our ears? The Post-Covid Music Industry

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Why do we need marriage and civil partnerships?

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BTO NEWS

www.bto.co.uk

Back (to the Office) For Good?

Lindsay MacNeill outlines the importance of adequately planning any return to the office, including assessing the associated risks, and establishing sufficient control measures to limit transmission.

2021 sees the UK and Scottish Governments announcing their roadmaps to ease restrictions. For many of us, a return to office working, to varying degrees, is on the horizon.

Guidance for Employers During this transition period, businesses should continue to follow the relevant Government guidance on working safely and put in place suitable and sufficient measures to reduce the risk of COVID-19 transmission and to ensure continued “COVID secure” workplaces.

Training is recommended for all staff affected and new rules should be understood by all, with records kept of attendance at necessary sessions.

The UK Government and the Scottish and Welsh Administrations have introduced several public health measures to help reduce transmission. This includes aspects such as:   

Testing, tracking and tracing; Vaccinations; and Face coverings.

Testing Whilst workplaces South of the Border are subject to new rules from 17 May, the current guidance from the Health and Safety Executive remains that employees should continue to work from home if they can. If office working is necessary, the HSE recommend that the following workplace hierarchy of controls remain unchanged:    

Social distancing Adequate ventilation Frequent cleaning Good hand hygiene

The Scottish Government guidance for employers who wish to offer testing for employees notes that the national Test and Protect system works for all those experiencing symptoms. If employers do wish to offer asymptomatic testing, or point of entry testing, this should be factored into the control measures arising from the risk assessment carried out. Temperature checks, for example, are flagged in the Scottish Government Guidance as being an unreliable method, in isolation, of detecting a possible carrier of the virus.

Vaccinations

The HSE has helpful guidance for how all aspects of COVID-19 safety come together to create safer workplaces. Alongside the Scottish Government guidance, which tells us what we can do and when within the established national levels, the HSE has published comprehensive advice on creating and communicating your company’s plan to return to office working safely.

The NHS is currently leading the vaccine programme, which is being offered to the population in the order determined by the Joint Committee on Vaccination and Immunisation (JCVI). There is helpful ACAS advice on getting the vaccine for work which notes that there is no law requiring a person to receive the vaccine before returning to work, although there may be individual contracts governing that.

Returning to the workplace safely It is essential that any return to the office is well planned; there must be a suitable and sufficient assessment of the risks of doing so, coupled with sufficient control measures to limit risk of transmission so far as reasonably practicable. In preparing a risk assessment, employers must consider their individual workspaces, the staff numbers within those spaces and the working requirements for their staff in terms of shared equipment.

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ACAS notes that employers may, however, wish to inform their employees of the benefits of having the vaccine and reinforce that, even when vaccinated, an employee must adhere to the control measures in place regarding working safely in the office environment and any changes to the rules regarding shielding of vulnerable people. The ACAS advice also provides helpful talking points for employers to use where an employee does not want the vaccine.

Face coverings Within the office environment, face coverings are considered to be a public health protection measure largely intended to help protect others. The HSE Guidance does not classify the face coverings we commonly use in public situations as personal protective equipment (PPE) and they are, therefore, not covered by health and safety legislation.

In Scotland, the relevant guidance requires that face coverings should be worn in any indoor communal area in a workplace and wherever there are no measures in place to keep people separated by either a partition or a distance of at least two metres. It is also advised that coverings are worn where social distancing is difficult to maintain, such as at the entrances and exits of buildings.

HSE Visits It should be noted that the HSE is actively carrying out spot checks and workplace visits in light of a significant increase in complaints by concerned employees, so employers should be prepared to show the considered approach they have taken to create a safe working environment. A robust risk assessment should assist employers in keeping workers safe. That, paired with open communication and ongoing discussion with employees about concerns, will chart a safe course for a return to office working in 2021.

Lindsay MacNeill lmn@bto.co.uk / 0141 221 8012 Vikki Watt vwa@bto.co.uk / 0141 225 5317

Helpful Links Scottish Government Guidance: Coronavirus (COVID-19): creating and maintaining safer workplaces.

HSE Guidance on COVID-19 Risk Assessment: COVID risk assessment.

HSE Guidance on return to work communication with employees: We have advice on talking to your workers about returning to work after a lockdown.

Testing: Coronavirus (COVID-19) - employee testing programmes: guidance for employers and Getting the coronavirus (COVID-19) vaccine for work Face coverings: Coronavirus (COVID-19): face coverings guidance — Face coverings in the workplace 1

Hybrid Working - An Employer’s Guide Lesley Grant sets out some points to bear in mind if you are considering implementing a hybrid model in your organisation post pandemic.

According to the Office for National Statistics, prior to the COVID-19 pandemic, only around 5% of the UK workforce worked mainly from home. This increased significantly in 2020 as a result of the Government’s mandates for people to remain at home.

A number of studies, including a YouGov Survey and CIPD research, indicate that after the pandemic, the majority of UK workers will want to continue to work from home at least some of the time. Likewise, in a poll by the BBC, nearly all of the 50 biggest UK employers (ranging from banks to retailers) have said that they do not plan to bring all staff back to the office full-time.

Some 43 of those employers questioned said that they would welcome hybrid working (whereby working time is split between home and attending the workplace) with only four saying that they are keeping their options under review.

With a combination of home and hybrid working looking set to continue beyond the pandemic, here are some things to bear in mind if you are considering implementing a hybrid model in your organisation.

Any permanent change to a hybrid working model should be formalised in employment contracts to avoid any dubiety, rather than just allowing an informal arrangement to drift on. Check if your employment contracts have built-in flexibility already (i.e. a mobility clause) that allows you to change an employee’s place of work. Amendments to work locations, including a move to mostly home-working, must still be reasonable and justified, to avoid the employer breaching the implied term of trust and confidence, which could lead to constructive dismissal.

If there isn’t a mobility clause, you will need to communicate the proposed change to affected staff so that they are aware of what is happening and that it will represent a permanent change to their contract of employment. You should seek their agreement to the change (either directly or via collective bargaining) and ask them to confirm this in writing. Alternatively, if the request for hybrid working is from the employee and you are not certain if the proposed arrangement will work, you could agree to the hybrid arrangement on a trial basis.

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If some (or all) refuse to accept the proposed change the best course of action is to dismiss and offer reengagement on amended terms. This can still carry risk, including a discrimination risk if the reason for the employee rejecting the change relates to a protected characteristic such as sex or disability. Additionally, if there is a proposal to dismiss and re-engage 20 or more employees at one establishment within 90 days, collective consultation obligations will also be triggered.

Other key issues to consider include:  Do any other contractual terms need to be varied?

For example, will there be a requirement for the employee to attend the workplace on a set number of / particular days? Who is required to cover ongoing costs associated with working from home (such as broadband, heating, lighting and electricity etc)? Do working hours need to be amended to reflect new working arrangements such as working compressed hours or having flexible start/finish times?  Do your policies or handbook need updating?

Ensure your Homeworking Policy addresses how employees will be supervised, how the organisation and line managers will communicate with them and how performance and output will be monitored when working at home. Consider including new or amended examples of what amounts to misconduct or gross misconduct in contracts, policies or handbooks.  Remind staff that they should continue to comply with your Sickness Absence Policy and reporting procedures when they are sick and unable to work.  Consider how to approach disciplinary, grievance, performance and absence and consultation meetings. Traditionally this will likely have been in person, but what will your model be going forward?  Who will provide IT or other equipment necessary for home working? This should be agreed and it is advisable to list any equipment supplied in the homeworking agreement, consent or policy. The provision of equipment could be a reasonable

adjustment for some disabled employees and may be the safest option for those with existing health conditions or who are pregnant.  Provide training and development for managers and staff to support successful hybrid working.  Ensure data protection obligations are maintained and that employees using their own IT equipment are processing information in compliance with data protection principles. Remind employees about home security, confidential information, keeping passwords safe and shredding documents securely.  Remember employers are responsible for an employee’s health, safety and welfare, even when working from home. Conduct risk assessments of all work activities carried out by employees working from home (including DSE, pregnancy and disability risk assessments).

of stress and isolation as early as possible; have regular team meetings/contact between employees and line managers and clarify how employees can get assistance and guidance if they need it.  Employers should continue to deal with flexible working requests within the statutory timeframes and in a reasonable manner.

Hybrid working won’t be a one size fits all model. For many organisations, this will require a significant culture shift, the establishment of new ways of working and the implementation of associated policies and practices.

Some employers may want all staff to move to hybrid working, whereas others may be happy to have it as an option for those who want it.

This update contains general information only and does not constitute legal or other professional advice.

 Support staff through good people management.

Please contact our Employment Team should you require assistance in relation to any of the matters discussed.

 Be mindful of employee wellbeing: consider implementing procedures to remain in direct contact with staff working from home and to recognise signs

Lesley Grant ljg@bto.co.uk / 0141 221 8012

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Commercial Property: Important Lessons Jamie Murray outlines some important lessons learned from two notable cases in the Court of Session.

CASE 1: Dilapidations: Fail to repair? Tenants beware!

CASE 2: Can Heads of Terms stop parties from changing their minds?

The decision in Coal Pension Properties Limited v Technip UK Ltd [2021] CSOH 39 is a useful reminder of the binding nature and potentially costly consequences of dilapidation clauses in commercial leases.

In Briggs of Burton v Doosan Babcock Ltd [2020] CSOH 100, two parties entered into Heads of Terms for the Sublease of commercial premises. It was stated that they were not to be legally binding, but the main terms would be included in the Sublease.

The case concerned a tenant’s liability for restoration costs at the end of the tenancy. According to the terms of the lease, if the tenant failed in its repairing obligations, the Landlord could choose between having the tenant carry out necessary repair works, or demanding payment for a sum “certified by the Landlord’s surveyor as being equal to the cost of carrying out such work”.

The solicitors exchanged drafts of the Sublease. During negotiations, the head-tenant’s solicitors changed provisions so that they no longer reflected the Heads of Terms. The sub-tenant’s solicitors did not draw attention to the changes, presuming they were noticeable. The sub-tenant did not notice until after signing.

At the end of the lease, the pursuer elected for the latter option and a schedule of dilapidations was served on the defender intimating this. The defender argued that the sum was unreasonable which led to negotiations between the parties and further notice being sent to the defender enclosing the final sum certified by the Landlord’s surveyor.

The Court has power to rectify a document that fails to express parties’ common intention at the time of making the agreement. The sub-tenant argued that the parties’ common intention was that the Sublease would reflect the Heads of Terms.

The Decision The Court refused to rectify the Sublease.

The defender argued that no valid demand for payment had been made, and that the surveyor’s certificate was not binding because it included the sum for lost rent.

The Decision Lord Tyre stated that it was “unfortunate” the pursuers letter was not “drafted with more careful attention” to the relevant clause, as the sums stated that included lost rent were not due at that time. Nevertheless, the surveyor had indeed certified the repair costs and his fee as per the Lease, and as such, notice was valid.

When addressing the issues regarding the surveyor’s certificate, Lord Tyre held that the quid pro quo benefit of the Tenant’s ability to discharge liability for lost rent was to forgo entitlement to dispute the certified sum. In concluding that the certificate was binding on the parties, he acknowledged the main objective of the payment clause - to achieve a “speedy resolution” to any disputes about the tenant’s repair liabilities at the end of the lease.

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It explained that it is necessary to consider the subjective intention of the parties. The Heads of Terms were explicitly non-binding, which demonstrated the intention to be able to negotiate. To rectify the Sublease to reflect the Heads of Terms would have been to ignore that intention.

These cases highlight how vital it is to review and understand commercial contracts in order to ensure clear agreement between the parties involved.

If you have any questions on how the above cases might apply to you, or you would like assistance with any property concerns you may have, please don’t hesitate to get in touch.

Jamie Murray jmu@bto.co.uk / 0141 221 8012

WEBINAR: To e or not to e...

Wednesday 2 June 2021 13:00 - 13:45, including Q&A With the sale of e-scooters rising in the UK and the spike in media attention following recent incidents, we will take you on a whistle-stop tour of the legal implications, from both a civil and criminal perspective, of the use of e-scooters on UK roads.

Joanne Farrell, Senior Associate: jfa@bto.co.uk / 0141 221 8012 Neil MacDonald, Solicitor: nmd@bto.co.uk / 0141 221 8012

REGISTRATION: CLICK HERE + SEND E: events@bto.co.uk / T: 0141 221 8012 You will receive a reminder email confirming the joining instructions ahead of the event. This webinar will be hosted via Microsoft Teams.

Practical Effect of Brexit on Distributors Michael Cox considers why some EU distributors are refusing to act in the same capacity as they did pre-Brexit and he provides options and recommendations for addressing this scenario.

We are hearing anecdotal evidence from clients that their EU distributors are, in some cases, refusing to act in the same capacity as they were prior to 1 January 2021.

carry out the conformity assessment, set up the technical file, issue the EU declaration of conformity, and affix a “CE” marking to a product. Only then can this product be traded on the EU single market.

Why is this?

These added obligations mean an increase to the distributer’s costs and risk.

Distribution arrangements are typically used as a low risk means of expanding business into new markets or territories. A distributor buys a manufacturer’s goods and sells the goods on, as opposed to an agent that may introduce sales that are made directly by the manufacturer in return for a commission. Brexit has not changed the relevant law relating to distribution or agency. However, it has materially changed the importing regime which has added obligations, risk and cost to the distributer.

Following the end of the transition period, the UK is now deemed a ‘third country’ by the EU. As such, EU distributors who import and distribute UK products on the EU single market are deemed the ‘importer of record’, being the person introducing the goods to the EU single market. This carries increased obligations like checking that the products fulfil all EU safety, health and environmental protection. The importer of record must verify that:  

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Goods are labelled with the importer of records’ address and the manufacturer’s details; The correct conformity assessment procedures have been carried out and that goods have the correct conformity markings; The manufacturer has drawn up the correct technical documentation and complied with the labelling requirements; They maintain a copy of the declaration of conformity for a period of 10 years after the goods they import have been placed on the market; and Goods conform with the relevant essential requirements.

In addition, if the distributor sells goods in its own name, they will also assume the manufacturer’s responsibilities. Manufacturers are responsible for checking that their products meet EU safety, health, and environmental protection requirements. It is the manufacturer’s responsibility to

What options are available?

The options available will depend on the relationship and the circumstances, but they may include: 1.

Renegotiating the arrangement so that the distributer’s added responsibilities and risk are adequately compensated.

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Appointing a separate “Initial Importer”, who takes on much of the obligations and effectively supplies the goods to your distributor. This will have a cost impact but may preserve the relationship with the distributor.

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Changing the relationship from distribution to agency. This has its own set of legal complications (including that the Commercial Agents directive may apply, meaning that compensation may be payable to the agent at the end of the relationship).

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The distributer may simply wish to no longer act in this capacity.

Recommendation Keep your distributor/agent close. If the relationship is working, it offers key benefits to both parties. Be aware that the distributor may be looking for EU alternatives to your product, to lessen their own burden.

It may be best to proactively discuss any additional responsibilities that have been assumed post Brexit.

This way, both parties can continue to trade successfully, prior to the distributor looking for EU alternative partners.

Michael Cox mxc@bto.co.uk / 0131 222 2939

Music to our ears? The Post-Covid Music Industry Jonathan Tait provides an overview of the latest Music By Numbers Report. He considers the changing landscape of the music industry and how Covid will impact on the future

eCreative

of the music industry.

Like many sectors, the UK music industry has been severely affected by the COVID-19 pandemic. The reduction in physical sales, sync opportunities, signings and releases, in conjunction with the decimation of the live music sector (and their ancillary sectors) in particular, has hit the industry hard.

UK Music’s “Music By Numbers 2020” Report (click here) concludes that 85% of live revenue will have been lost in 2020 due to COVID-19. We have heard numerous reports of gigs and festivals being postponed or cancelled. More alarmingly, we have heard of countless venues which have closed their doors indefinitely, unable to recover from the impact of the losses sustained under COVID-19.

The Report also concludes that over 65% of creators’ income will be lost altogether, rising to 80% for creators who are dependent upon live performance and studio recordings for their livelihood. What makes this data doubly painful is that pre-COVID, the UK music industry was experiencing an extremely buoyant 2019, contributing £5.8 billion to the UK economy. The uncertainty in relation to EU touring as a result of Brexit has not helped matters.

During times of crisis, people often turn to music for solace and this time is no different. It was expected that as a result of the removal of the live sector and the lack of opportunities to purchase physical goods, digital music consumption would increase, but figures show that figures during 2020 were lower than in comparative months in 2019. All is not lost, however, as streaming services are experiencing an marked increase in use, vinyl sales are up, on-demand consumption has increased and publishing figures show a significant increase.

There is a lot of speculation as to how the industry has changed and what will be the lasting impact of COVID19. One thing is for sure, the landscape is changing dramatically and as with most seismic shifts in cultural output and consumption, this shift will bring about innovation and creative flair. It is a given that artists are more aware than ever of the value of their creativity.

Given the lack of income from live performance, it is therefore inevitable that artists will move en masse to more artist friendly streaming platforms. It is not the 3

intention here to widen the debate on those platforms in the spotlight which offer poor returns on revenue, suffice to say that new platforms are emerging which offer more artist-friendly opportunities. As the reliance on streaming is set to rise given the lack of livegenerated revenue, we predict that the platforms providing fairer returns will undoubtedly flourish.

Given that it is extremely likely that there will be less artist and fan interaction and disposable income, at least in the short term, artists and the industry alike will have to offer more to the consumer in terms of a tangible return for consumer investment. This may mean making music a more experiential art form, diversifying and opening up any live experience and investing in tech to allow for this….no mean feat.

What has been incredibly gratifying throughout this period, however, is how the industry has pulled together in solidarity. From #TimsTwitterListeningParties and Bandcamp Friday, right through to the Rod Jones helmed #LottaRoadies project, artists and industry have pulled together in order to support one another, and that can only be a good thing, right?

BTO’s niche team BTO BeCreative advises the Scottish music industry and artists on streaming agreements, licences, artist management contracts, venue contracts, production rights and royalties.

Competitive rates can be agreed to suit all budgets.

For more information, contact:

Jonathan Tait jta@bto.co.uk / 0131 222 2939 Follow us: @BTObecreative

www.btobecreative.com

Why do we need marriage and civil partnerships?

Morven Douglas explains why same–sex and mixed-sex couples will soon have the same options available to them when formalising their relationships.

With the coming into force of the Civil Partnership (Scotland) Act 2020, civil partnerships in Scotland will soon not only be available to those in same-sex relationships, but also to heterosexual couples.

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All those who view marriage as a patriarchal institution are provided with an alternative process to obtain the same legal rights and obligations as those who marry.

As with those who intend to marry, a notice of intention to enter a civil partnership requires to be submitted at least 29 days before the civil partnership is to be registered. Under the new legislation a notice of intention can be submitted from 1 June 2021 and accordingly, civil partnerships between men and women can be entered into from 30 June 2021.

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Bisexual people would no longer have their choice limited based on the sex of their partner, and

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It would enable a trans person to remain in their civil partnership after obtaining a gender recognition certificate.

What is the legal difference between marriage and civil partnerships?

In practice, there is no significant legal difference between the rights and obligations of spouses and the rights and obligations of civil partners towards one another.

If the legal implications are the same, why do we need both marriage and civil partnerships?

The purpose of extending civil partnerships to mixed sex couples is to ensure that both same-sex and mixedsex couples have the same options available to them if they wish to formalise their relationship. In England and Wales, the Supreme Court ruled that preventing mixedsex couples from entering into a civil partnership is incompatible with the European Convention on Human Rights. As a result, the Scottish Government acknowledged that they would also need to review Scots law on civil partnerships and they launched a consultation requesting views on whether registration of civil partnerships should be closed or, alternatively, whether civil partnerships should also be available to mixed-sex couples. Based on the responses to the Consultation, the latter option was chosen.

There are many reasons why a heterosexual couple may not want to marry, for example, due to religious reasons. The Civil Partnership (Scotland) Act 2020, therefore, provides couples with an alternative way to formalise their relationship whilst still obtaining the same rights and corresponding obligations. Further interesting comments received during the consultation in support of extending civil partnerships included: 3

There were of course some consultees who were not in favour of extending civil partnerships to mixed-sex couples and a common argument in support of this stance was that civil partnerships are now redundant and only serve as a reminder that same-sex couples were not, until relatively recently, permitted to marry. It is positive, we think, that this position was not adopted by the Scottish Government. This would have alienated numerous couples who simply do not agree with the institution of marriage. With the advent of the 2020 Act, all couples now have the choice as to how to formalise their relationship – that surely can only be a good thing!

Whilst we remain living under lockdown restrictions, including a limit to the number of people who can attend events, restrictions will continue to apply both to weddings and civil partnership ceremonies. This may, therefore, limit the number of couples wishing to take advantage of the extension of civil partnerships in the immediate future.

Going forward, and as we emerge from the pandemic, it will be interesting to see how many couples decide to sign on the dotted line of a civil partnership contract, or skip down the aisle to wedding bells - watch this space!

Morven Douglas mdo@bto.co.uk / 0141 221 8012

www.btofamilylaw.co.uk

BTO NEWS

Caroline Carr - One of Five Solicitors in Scotland Accredited as an Employment Law Specialist for 20 Years+ A partner and head of BTO’s Employment Law team, Caroline has been accredited

by The Law Society of Scotland as a specialist for the fifth consecutive time in her career. Caroline said: “I remain very enthusiastic about, and thoroughly enjoy, employment law and this recognition from a panel of my legal peers spurs me on to continue delivering excellent results and a first-class service to my clients.”

Caroline Carr cac@bto.co.uk / 0141 225 5263

New Chairman Eyes Growth for Outsourced Data Protection Officer provider We are pleased to announce that partner Paul Motion has become the new Chairman of RGDP (Really Good Data Protection). A Solicitor Advocate and an accredited specialist in freedom of information and data protection law, Paul is one of only two such specialists in the private practice legal sector in Scotland.

In the last three years, as a Board member, Paul has helped oversee the establishment and growth of this Data Protection Officer (DPO) services provider, including steering RGDP through the current pandemic during which time RGDP’s customer numbers have continued to rise.

Paul Motion

Completing the changes, Alastair Dunn becomes an RGDP Board member. Alastair is a highly experienced partner of BTO specialising in corporate and commercial law.

He acts for a range of clients from national and international organisations, ownermanaged companies, entrepreneurs, funders, shareholder groups and investors.

Paul Motion commented:

Alastair Dunn

“I am delighted to assume the role of RGDP’s Chairman. RGDP provides DPO services to organisations that choose to outsource their data protection requirements and a number of organisations have turned to RGDP since the start of the Covid pandemic, recognising that it provides a very cost-effective solution to their data protection requirements. I am pleased to report that the company services a growing and diverse range of organisations including housing associations, airports, legal firms, public bodies in the sporting and business sectors, charities and more.”

RGDP’s General Manager, Mark Chynoweth, said:

Mark Chynoweth

“With data protection rightly becoming an increasingly important and essential aspect of an organisation’s thinking, and with the data protection landscape continuing to evolve following the UK’s departure from the EU, RGDP’s customers can remain assured that our range of DPO services and our growing and highly experienced team will remain one-step ahead”.

Paul Motion prm@bto.co.uk / 0131 222 2932

www.rgdp.co.uk 3

Alastair Dunn akd@bto.co.uk / 0141 221 8012 Mark Chynoweth mark@rgdp.co.uk / 07741 738842

Whatever your legal needs, we are ideally placed to assist.

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BTO Solicitors LLP (SO305583): 48 St. Vincent Street Glasgow G2 5HS T: 0141 221 8012 One Edinburgh Quay Edinburgh EH3 9QG T: 0131 222 2939 77-81 Sinclair St, Helensburgh G84 8TG T: 01436 671 221 Follow BTO on Twitter: @btosolicitors The material in this publication contains general information only and does not constitute legal or other professional advice.

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