FAQs: Post-lockdown legal considerations

To see the video of Ceri, Seth and Patrick’s original presentation on Thursday 6 August 2020 go to post-lockdown legal considerations for productions.

Employment and production considerations:

Read here what Seth Roe has answered in response to FAQs about a range of topics including furloughing and SSP. 

How do we bring furlough leave to an end?

This will depend on the terms of your furlough agreement.

Assuming that your furlough letter gives you the ability to end the furlough leave on a date of your choosing, you should simply need to inform the individual (ideally in writing) that their furlough leave is ending and that you expect them to return to the production by a particular date.

Further contractual considerations will be required if the furlough agreement did not address how the furlough leave would end or if you intend to terminate the engagement rather than bring the person back to work. You may also want to consider whether any new contractual changes are required to an individual’s contract after they return.

What changes were made to the job retention scheme with effect from 1 August 2020?

The job retention scheme will continue to run from 1 August to 31 October 2020 but it will operate differently during this period. Productions will be required to contribute towards the furlough pay being received by their crew members but will be able get the relevant individuals to perform some work for them on a part time basis – this has been labelled by the Government as ‘flexible furloughing’.

Given there are a number of considerations to bear in mind here, we would recommend you take further advice if you are considering utilising the job retention scheme during the period.

Are individuals entitled to sick pay if they are unable to work due to Covid-19?

Most production contracts do not oblige the production to pay individuals when they are unable to work due to sickness. However, productions should ensure they are aware of their Statutory Sick Pay (SSP) obligations particularly given the recent changes to these as a result of the Covid-19 pandemic.

SSP should only be payable to eligible individuals who are paid via PAYE. Loan outs and Schedule D workers will not be entitled to SSP. They should therefore not need to be paid if they were unable to work due to sickness or self-isolation unless their contracts stated otherwise, which would be unusual.

In what circumstances is SSP payable?

The usual position is that eligible individuals will be entitled to receive SSP if they are unable to work due to illness for four or more days. However, for Covid-19 related sickness absences SSP will be payable from day one of absence and individuals will be deemed to be unable to work if they need to self-isolate because they:

  • have Covid-19 symptoms (i.e. a new continuous cough, a high temperature or a loss of, or change in, their normal sense of taste or smell) or have tested positive for Covid-19
  • live with someone (or are in an extended or linked household with someone) who is displaying the symptoms of Covid-19 or who has tested positive for Covid-19; or
  • are shielding in line with a shielding notification that has been sent to or in respect of them; and/or
  • have been told to isolate further to the Government’s ‘Test and Trace’ system.

SSP is not payable to individuals who are self-isolating after entering or returning to the UK unless they also need to self-isolate for one of the above reasons.

How much is SSP?

SSP is payable for up to 28 weeks. It is £95.85 per week and generally cannot be reclaimed from the Government. However, small companies which had a PAYE payroll scheme on or before 28 February 2020 and which had fewer than 250 employees on 28 February 2020 will be able to reclaim SSP paid in respect of the first 14 days of any Covid-19 related sickness absence.

We have prepared our Covid-19 risk assessment. Does this need to be shared with our production staff and be made public?

The Government’s guidance states that Covid-19 risk assessments must be shared with a company’s workforce. If possible, they should also be made public by publishing the risk assessment on the company’s website and the Government expects all businesses with over 50 employees to do so. It is also important that productions demonstrate to their workers and those visiting set that a proper assessment of risk has been made and appropriate measures have been taken to mitigate these risks. This can be achieved by displaying a notification in a prominent place on set and on the company website (template notifications are available here).

Will the production need to implement any new policies?

Once a production has carried out its Covid-19 risk assessment and identified what measures it will be taking to minimise the risks of Covid-19, it is likely that additional production policies will need to be implemented to ensure these measures are adhered to.
This may include health monitoring policies (e.g. covering temperature checks), policies on quarantining, policies on staggered call times as well as specific departmental policies (e.g. policies for costume / hair and make-up departments).

Given the likelihood of potential sickness absence over the coming weeks, it would also be advisable to review or introduce a production specific sickness absence policy.
Productions should ensure they refer to the relevant Government guidance and the BFC guidance ‘Working Safely During COVID-19 in Film and High-end TV Drama Production’ when preparing their risk assessment and when drafting and implementing any new policies.

Which individuals are defined as “vulnerable”?

Individuals are “vulnerable” if they are at moderate risk from coronavirus. This includes people who:

  • are 70 or older
  • are pregnant
  • have a lung condition that's not severe (such as asthma, COPD, emphysema or bronchitis)
  • have heart disease (such as heart failure)
  • have diabetes
  • have chronic kidney disease
  • have liver disease (such as hepatitis)
  • have a condition affecting the brain or nerves (such as Parkinson's disease, motor neurone disease, multiple sclerosis or cerebral palsy)
  • have a condition that means they have a high risk of getting infections
  • are taking medicine that can affect the immune system (such as low doses of steroids)
  • are very obese (a BMI of 40 or above).

Vulnerable individuals are advised to follow the advice on social distancing and stay at home as much as possible but they can go to work if they cannot work from home.

What can we do if a vulnerable individual refuses to return to work?

As noted above, under the Government guidance vulnerable individuals are able to attend work if they cannot work from home. You should therefore firstly consider whether there is a need for the individual to attend physical production or whether they can carry out their work from home.

Assuming that the individual cannot work from home, we would recommend that you seek to understand why they are unwilling to return and whether there is anything you can do which would make them feel comfortable to do so.

You cannot force an individual to attend work so, if you aren’t able to reach agreement, the issue comes down to whether you will continue their engagement and, if so, whether you will pay them. Furloughing may also be an option (provided that the individual had previously been furloughed for a minimum of 3 weeks prior to 30 June 2020).

If the individual is unwilling to return because of concerns about their health and safety and their employment status is that of “worker” or “employee”, care should be taken to mitigate the risk of employment disputes arising. You should also bear in mind that individuals in this category may be regarded as having a disability and be protected from discrimination under the Equality Act 2010. It would therefore be advisable to seek specific legal advice in such circumstances.

Which individuals are defined as “extremely vulnerable”?

Individuals are “clinically extremely vulnerable” if they are at high risk from coronavirus. This includes people who:

  • have had an organ transplant
  • are having chemotherapy or antibody treatment for cancer, including immunotherapy
  • are having an intense course of radiotherapy for lung cancer
  • are having targeted cancer treatments that can affect the immune system
  • have blood or bone marrow cancer
  • have had a bone marrow or stem cell transplant in the past 6 months, or are still taking immunosuppressant medicine
  • have been told by a doctor that they have a severe lung condition
  • have a condition that means they have a very high risk of getting infections
  • are taking medicine that makes them much more likely to get infections
  • have a serious heart condition and are pregnant.

Individuals in this group were previously advised to shield and not leave their homes. In England, individuals are now no longer advised to shield but they are still advised to work from home if possible. If they cannot work from home they are able to return to work.

What should we do if an extremely vulnerable individual wants to come back to work?

We would advise that you first consider whether they are able to carry out their work from home, in which case they should remain at home. If they are unable to work from home you can (pending any changes to the guidance or any “local lockdowns”) allow them to return to work. However, you will need to ensure that the workplace is Covid-secure and that you have taken the necessary steps to ensure that they can work safely, given their increased risk.

How should we deal with crew who have protected characteristics?

If individuals have a protected characteristic (e.g. they are disabled or pregnant) they will be protected from discrimination on the grounds of that characteristic. You will therefore need to ensure that any measures you take do not discriminate against individuals on the grounds of these characteristics.

For individuals with disabilities, you should also remember that you have a duty to make reasonable adjustments and this may include putting in place extra health and safety measures for those who may be at greater risk from coronavirus. Similarly, for pregnant individuals you are required to carry out a risk assessment and any Covid-19 risks should be factored into this.

We would always recommend that you seek specific legal advice when dealing with any individual who has or may have a protected characteristic.

Can we send someone home if we are worried they have Covid-19?

Yes, you can send an individual home. However, assuming they are fit to attend work under Government guidance (e.g. they don’t have symptoms or live with someone who has COVID-19) and they are ready, willing and able to attend work, they should technically receive full pay for the time they spend at home unless their contract permits otherwise. In some circumstances, it may therefore be more advisable to terminate the engagement although care should be taken with this option particularly with employees who have more than two years’ service or with individuals who have a protected characteristic.

What can we do if an individual doesn’t follow the measures we have put in place?

If you have put in place measures to help mitigate the risk of Covid-19 and these measures have been communicated to cast and crew, but an individual fails or refuses to comply with them, it is likely that you could legitimately terminate that individual’s engagement. If the individual is an employee with more than two years’ service, we would advise that you follow your internal disciplinary procedure before making any decision to dismiss and that you take legal advice in the event that you do wish to dismiss the individual.

What are the options available in the event major script rewrites are required due to impacts on the production as a result of Covid-19?

In all likelihood this would come down to making a commercial deal with the writer to render further services, and the additional fees coming from contingency or overages agreed with your financier. Going forward there will likely be provisions in various development/production templates to cover the lessons learned from Covid-19 and perhaps a pre-agreed rate (assuming they are not subject to any specific guild rate) included with writers to cover work on this scale so that it’s not entirely down to negotiation at the time it is required. It would also be subject to their availability, and any provisions requiring them to remain/be available in the event this work were required would impact the rate they are paid.

IR35 considerations:

Read here what Ceri Stoner has answered in response to FAQs about IR35 considerations. 

What’s the current position?

The purpose of the UK’s IR35 rules* is to ensure that individuals who work like employees pay same tax as employees, regardless of the structure through which they provide their services.

In broad terms, the IR35 rules determine whether an individual engaged via a personal service company (also known as a ‘loan-out’ in film and TV) is genuinely self-employed or whether they are in fact a ‘disguised’ employee of the client. At present, in the private sector the IR35 rules require the individual whose services are engaged via a personal service company to determine their correct tax status and, if the engagement is found to come within the IR35 rules, any resultant employment tax liability falls on the individual’s personal service company.

*The IR35 rules were originally introduced in 2000 by the Inland Revenue Budget Press Release no. 35 ‘Countering Avoidance in the Provision of Personal Services’.

What’s changing in April 2021?

From 6 April 2021*, as a result of perceived tax avoidance, the IR35 rules are being changed for those in the private sector, where the engager is a medium or large company. The impact of the changes will be to shift the responsibility for determining whether an individual engaged via a personal service company is deemed an employee from the individual to the engager. This will mirror the position in the public sector. In both sectors, this assessment must be performed with ‘reasonable care’ and, if the individual is found to be an employee, it will be the production company who will be liable for accounting for any consequent tax liability to HMRC via pay as you earn (‘PAYE’).

*this change was scheduled to be introduced 6 April 2020, however, due to broader challenges posed by Covid-19, implementation has been delayed by a year.

Which engagements will be affected by the change?

As indicated above, the change in the IR35 rules will impact medium or large companies in the private sector who engage individuals via personal service companies or loan outs. The detailed definition of a personal service company is outside the scope of this note but to be an intermediary for the purposes of the new IR35 rules, the individual must generally exercise a degree of control over the loan-out through which they contract.

A company (or group of companies where applicable) operating in the private sector will be medium or large if 2 or more of the following criteria are met at either an individual or group level:

  • Annual turnover of more than £10.2m;
  • Balance sheet total of more than £5.1m; and/or
  • More than 50 employees.

There are also some detailed rules that apply to new companies or those companies which border on the cusp of qualifying as a medium company. Due to the nuances of this test, application is not always straightforward and as such we recommend seeking confirmation from your advisors before proceeding.

Any contract which will run over 6 April 2021 or any new contract after that date will be covered.

What exactly will companies affected need to do?

From April 2021 all but the smallest of private sector production companies will need to:

  • assess whether individuals engaged via ‘loan-outs’ (or other intermediaries) are self-employed or not;
  • inform the individuals (and any relevant agents in the chain) of the outcome of the determination;
  • account to HMRC for any resultant employment taxes (including where a self-employed determination is subsequently challenged by HMRC; and
  • establish a compliant appeals process for contractors.

Who should perform the IR35 assessment?

The IR35 rules are not prescriptive as to who within the organisation performs the test. However, the IR35 assessment needs to be undertaken with reasonable care and therefore logically the assessor will need to have a suitable level of awareness of the rules. The assessor should also have sufficient knowledge of the engagement and how it works in practice (as opposed to being solely reliant on the contract terms when assessing).

How difficult is the IR35 assessment?

The IR35 rules and associated body of case law is complex and the assessment is multi-faceted.

HMRC has a digital online tool ‘Check Employment Status for Tax’ (known as ‘CEST’) which can be used to run IR35 assessments. This is a source of some frustration to many, however, with people finding it either difficult to navigate or else that it does not provide an accurate result on their particular facts or even a non determination.

Fortunately, HMRC has produced specific guidance for determining the employment status of individuals working behind camera in the media sector. These are roles such as camera operators, producers, writers, directors, gaffers, carpenters, electricians and stage managers. Wiggin worked closely with stakeholders and HMRC to update this list last December. The application of the various role descriptions and applicable criteria to any particular engagement is relatively complex and care must be taken to produce a reliable result.
HMRC has also provided specific guidance about the status of actors (and others) who perform in front of camera in the media sector.

We recommend seeking further advice if this is an area in respect of which you need more detail.

What can I do to prepare for the April 2021 changes?

In our view, the following measures are business critical for production companies in order to be ready for the changes to the IR35 rules in 2021:

  • Identify scope of IR35 risk for those returning to work and potential costs
  • Review and update template contracts with contractors
  • Incorporate a robust IR35 assessment into your onboarding policy
  • Train and support those responsible for assessing
  • Consider digitalising IR35 process for consistency, accuracy and time savings
  • Develop a dispute resolution policy that incorporates your statutory obligations
  • Communications with contractors, including status determination statements.

Given the scale and frequency of the testing required, together with the complexities of determining employment status in the media sector, our view is that the only real, long-term solution is an electronic tool. In partnership with leading sector stakeholders, Wiggin have developed the IR35 Manager to assist with this burden. The IR35 Manager incorporates our expertise and experience with the relevant guidelines and practical real-world examples to facilitate accurate IR35 determinations and mitigate risks for production companies. It also has a range of automated support functions, including template documents, and a legal support package, all designed to save time and costs and offers quality and consistency.

Please click here to access further information about the IR35 Manager and IR35 advisory services on our website.

Data protection considerations:

Read here what Patrick Rennie has answered in response to FAQs about data protection considerations. 

Will data protection prevent me issuing Covid-19 questionnaires/temperature testing cast/crew before allowing them on set?

No, but as this is information relating to an individual it will constitute personal data and therefore you will need to comply with the GDPR in collecting and using this data. It will only be permitted where the purposes for processing this personal data are fair – i.e. in order to manage post-Covid-19 filming and to protect the cast/crew from infection. These FAQs apply only on the basis that questionnaires/temperature testing is being conducted in good faith and to help prevent the spread of Covid-19 on set.

Will I need to get cast/crew consent in order to take their temperature/issue them with a questionnaire?

No. Data protection requires if you process personal data you have lawful bases for each purpose. Consent is one such lawful basis but it is not the only lawful basis and often not applicable.

The most applicable lawful basis that production companies should rely on is that the processing is in the legitimate interests of the production company. This lawful basis is only applicable where such interests do not prejudice the rights, freedoms and interests of the individual in question. Given the challenges that Covid-19 presents to many industries, including film and TV, it is likely that the legitimate interests of the production company in collecting cast/crew temperatures will not prejudice the interest of the individual. Of course, this will only be true where the information is being collected for the purpose of ensuring that those on set (and their families) are being protected from contracting Covid-19.

What if someone refuses to let the production take their temperature/complete a questionnaire?

This is unfortunately not straightforward. If the individual was not obviously exhibiting any Covid-19 symptoms, they wouldn’t be entitled to SSP (if eligible) so if you sent them home it is possible you may need to pay them full pay. You could consider not paying them on the basis that they have refused to comply with a reasonable management instruction. However, such measures could easily lead to an employment dispute with the particular individual.

As a first step, we would therefore recommend that you talk to the individual to understand why they are not willing to have their temperature taken and to see if you are able to address their concerns. Further advice may then be required at that stage depending on their response.

Will their responses to a questionnaire/temperature result be considered health data?

Personal data relating to someone’s health is considered “health data” under the GDPR and this means that it is deemed to be a ‘special category’ of personal data.

Are there any specific rules regarding health data?

Special categories of personal data should be processed with extra consideration and protection as there could be a heightened risk of harm to individuals if this information is not handled fairly and lawfully. It is vital that this information is kept secure and only those who require access to this information are able to access it.

Special categories of personal data also require an additional lawful basis in order to be processed. As discussed, the lawful basis for processing personal data will be legitimate interests, but the lawful basis for processing health data will be that it is necessary to comply with legal obligations in the field of employment, specifically the Health and Safety at Work Act 1974.

If someone has Covid-19 or has a high temperature indicating Covid-19 can I tell other cast/crew about this?

Where possible you should refrain from naming individuals who have tested positive, although you will be able to inform cast/crew that there has been an incident of Covid-19/ a high temperature being recorded which will allow them to more closely monitor their own health and take any necessary steps to prevent infecting others. In some cases it will be apparent who may have Covid-19 even without naming the person (i.e. where someone is suddenly absent from a small working group). You should still avoid naming the individuals but you can still notify other cast/crew that an individual may have Covid-19.

Can I ask cast/crew if anyone that they live with is suffering from Covid-19?

You may ask for cast/crew’s family’s health data, but as this personal data will relate to an individual who is not a part of the production you will only be able to collect this with the person’s consent. In practice, this means that cast/crew will be able to refuse disclosing this information.

In practice, if a cast or crew member lives with someone who is suffering from Covid-19, they should be isolating in accordance with Government guidance. The production should therefore make clear to cast and crew that, even if they choose not to specifically disclose it to you, you expect them to follow Government guidance which means that if an individual in their household is suffering from Covid-19 they should self-isolate and not attend the production. If you were to find out that an individual had attended work against Government guidance you should at the very least send them home and order them to stay at home for the requisite period of time (14 days). However, you may also wish to consider whether it is appropriate to terminate the individual’s engagement in such circumstances.

How long should I retain information about someone’s health with regard to Covid-19?

You cannot retain personal data for longer than is necessary. In the case of a cast/crew member with a high temperature or responses indicating they may have Covid-19 the period of time that it will be necessary to retain this personal data will be short – i.e. 14 days – but it will be up to the production companies to make this determination.

What do I need to tell people about collecting and processing their personal data?

You should have in place a cast/crew privacy notice which informs cast/crew about what personal data is collected, the purposes for using this personal data, the lawful bases for processing this personal data, how long data will be retained, as well as other information required under GDPR. This will need to be updated to address Covid-19 questionnaires/temperature testing. In addition, you should consider posting signs at the entrance to set informing people that temperature testing and Covid-19 questionnaires will be taking place.

Do I need to put in place a risk assessment for data protection?

Where you rely on legitimate interest to process personal data you will need to carry out a documented assessment as to whether or not your interests prejudice the individual’s interests. In addition, where processing personal data is likely to result in a high risk to individuals you will need to carry out a data protection risk assessment. Finally, GDPR requires that those who process personal data are able to demonstrate their compliance with GDPR. For these reasons you should carry out a risk assessment around the collecting of cast/crew temperature with regard to data protection.

What other steps do I need to take in respect of data protection?

It will also be very important to ensure that whoever is taking the person’s temperature or issuing the questionnaire has been informed of the data protection considerations and the steps taken by the production company. This person will most likely be required to field most questions that cast/crew will have, including on data protection, and as such should be able to address these questions.

You should also seek legal advice before implementing temperature testing or issuing questionnaires. These FAQs are a guide only and legal advice will be required to ensure that the steps taken with regard to temperature testing do comply with data protection.

What if I want to implement contact tracing?

If you wish to implement contact tracing then you should seek specific legal advice.

What if I want to utilise thermal cameras to take cast/crew temperature?

If you wish to utilise thermal camera technology to test cast/crew temperatures then the rules set out in this guidance will generally still apply, however it will be vital that additional consideration is given to notifying individuals about the use of this technology before they are subject to it. You will also need to give additional consideration to this technology in your risk assessment. If you are appointing a contractor to implement this technology there will be additional data protection considerations regarding the appropriateness of the contactor, the contact in place with them, and restriction to access. You should also obtain additional legal advice.

Are there any third parties I need to notify regarding questionnaire/temperature results (i.e. track and trace)?

You will not need to disclose any results unless contacted to do so. Guidance can be found here.

Disclaimer:

This FAQ was produced in August 2020 and is for general information purposes for members of ScreenSkills only. It is not to be distributed more widely. It is not addressed to any specific parties and does not constitute advice (legal or otherwise) to any person. ScreenSkills and Wiggin LLP do not accept any ongoing responsibility for updating these FAQs in line with the latest legislation, regulations, guidance or case law after the date of publication of these FAQs. Furthermore, please note that ScreenSkills and Wiggin LLP do not accept any liability in any circumstances to any other parties for any losses arising in relation to any actions, inactions or determinations made in relation to these FAQs. We recommend that anyone with any specific concerns or questions seek up to date advice in respect of their particular circumstances.


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