As Covid-19 restrictions in England continue to ease, the Government’s range of Covid-19 support measures to help businesses survive the pandemic is also coming to an end. So, what steps should directors be taking or considering now? Fox Williams LLP highlights the following points.

 

1. Moratorium on winding up petitions and statutory demands

Restrictions on filing a statutory demand and winding-up petition for Covid-19 related debts have now been extended (again) by three months to 30 September 2021.

This means that creditors are prevented from presenting a statutory demand or winding up petition unless the creditor has reasonable grounds for believing that: (1) Covid-19 has not had a financial effect on the company; or (2) that the circumstances forming the basis of the winding-up petition would have occurred even if Covid-19 had not had a financial effect on the company.

If you are owed or owe monies, you should be aware that the 30 September moratorium is unlikely to be extended. So, you should be prepared to look to press for repayment or repay from such date.

2. Wrongful trading

The announcement about the extension of the Moratorium on winding up petitions and statutory demands did not mention a further extension on the suspension of personal liability for wrongful trading. It is therefore implied that directors could be liable for wrongful trading post 1 July.

In the current environment due to Covid-19, many directors will be concerned about their personal exposure; particularly if the businesses they help manage are experiencing financial distress. Directors should consider purchasing a Directors’ & Officers’ liability insurance policy (“D&O Policy”), which can provide peace of mind for any directors who are concerned about their personal exposure if their business enters into an insolvency procedure.

It should be noted that a D&O policy is no substitute for taking appropriate precautions to avoid liability in the first place.

3. Protection from eviction enforcement

The moratorium on “aggressive” action by landlords against their commercial tenants that breach the terms of their leases has now been extended until 25 March 2022. This means that whilst the moratorium is in place, a landlord will not be able to evict a tenant for non-payment of rent.

The legislation does not apply to short leases and after 25 March 2022, landlords will still be able to claim for forfeiture for both payments that became due during the moratorium period. Also, for any becoming due, but remaining unpaid, after it ends.

4. Coronavirus Job Retention (Furlough) Scheme

The Furlough Scheme is being fully withdrawn on 30 September 2021. For employees who are placed on furlough, there is no guarantee that they will be retained once the scheme ends.

If you have employees currently placed on furlough, you should now be considering their return to work. And, importantly, the prospect of dealing with redundancies once the scheme ends.

5. Coronavirus Remote Right to Work concession

As a result of the Government’s announcement on 14 June 2021 to extend the date for the easing of lockdown restrictions and social distancing measures, the temporary Covid-19 adjusted right to work checks in respect of overseas workers will now end on 31 August 2021.

From 1 September 2021, employers will revert to face-to-face and physical document checks as set out in legislation and guidance.

6. Deferred VAT

If you deferred VAT payments due between 20 March 2020 and 30 June 2020, the following options are available:

1. if you joined the VAT deferral payment scheme you will pay the deferred VAT in line with the instalment scheme available to you;
2. the deferred VAT payments can be paid in full; or
3. you should contact HMRC by 30 June 2021 if you need extra help to pay.

A 5% penalty or interest may be imposed if your deferred VAT is not paid in full. Or, you have not made alternative arrangements to pay by 30 June 2021.

7. Your supply chain

And finally, on 30 June 2021, the Trade Credit Reinsurance (“TCR”) scheme will close. The scheme assisted suppliers to secure insurance protection in respect of supplies to their customers.

However, whilst the TCR will end, the question remains about exposure to retailers; some of whom may well ‘over trade’ in the months ahead and, as a result, default on their creditors.

As such you should give thought to:

• the terms on which you trade; or
• whether your standard terms and conditions of sale will protect you; or
• if your standard terms and conditions of sale are being properly incorporated into contracts made with customers.

Priya Mattu is a corporate law associate, Paul Taylor is a corporate law partner, and Stephen Sidkin is a commercial law partner at Fox Williams LLP.

2021 Fox Williams LLP