Who should read this and why?

• All Executive Teams, Boards, Income Managers and Tenancy Enforcement Teams.
• The risk from Covid-19 and increased home working means that “wet signatures” may be impractical.

Electronic Signatures

• Electronic signatures have been in use for a number years, but guidance is not always clearly available.
• Electronic signatures come in many forms, including:-
  • Typewritten
  • Scanned
  • Signed by electronic pen
  • Fingerprint or retina scan
  • Cryptosignatures
• There are three categories of electronic signature:-
  • Simple e.g. scanned or typed
  • Advanced e.g. uniquely linked to the signatory and are capable of identifying changes to documents.
  • Qualified e.g. created by a qualified electronic signature creation device.
• Regulation (EU) No 910/2014 provides that a “qualified electronic signature” has the equivalent legal effect of a handwritten signature. The European Union (Withdrawal) Act 2018 confirms that all direct EU legislation (including Regulation (EU) No 910/2014) will be deemed to form part of domestic law on and after the day the UK exits the EU.
• The Electronic Communications Act 2000 confirms that electronic signatures are admissible in evidence.
• Civil Procedure Rule 5.3 allows a signature printed by computer or other mechanical means where the document is required to be signed under a rule or practice direction.
• On 4 September 2019, the Law Commission published guidance on the validity of Electronic Signatures. It published that an electronic signature is capable in law of being used to execute a document (including a deed) provided that (i) the person signing the document intends to authenticate the document and (ii) any formalities relating to execution of that document are satisfied.
• However, formalities may be required under a statute or statutory instrument, or may be laid down in a contract or other private law instrument under which a document is to be executed. The following are examples of formalities that might be required: (i) that the signature be witnessed; or (ii) that the signature be in a specified form (such as being handwritten).
• With specific regard to deeds and the witnessing requirements thereof, a deed must be signed in the physical presence of a witness who attests the signature. This is the case even where both the person executing the deed and the witness are executing / attesting the document using an electronic signature.
• In the event of a challenge to an electronically signed contract it would be for the Court to decide on its legal effect if the parties could not agree.

Practical Advice

• Ensuring all staff and contractors are following all relevant guidance.
• Ensuring staff members and contractors who are unwell and/or have had contact with someone who has the virus stay away from the scheme.
• If printing is available, printing documents and providing a “wet signature” is still the most widely accepted method.
• If using electronic signatures it is advisable to adopt methods to qualify the signature or at the very least be able to provide a chain of information to support the identity of the signature e.g. email correspondence and telephone filenotes.
• You are advised to check you articles of association and any other agreements to ensure that they do not include any restrictions within that would prevent or constrain the use of electronic signing.
• If in doubt as to whether other formalities may be required under a statute or statutory instrument, contact us.

What we will be doing

• Producing further practical guidance.
• Providing on going support to our clients.

How to stay up-to-date with the latest government advice and guidance:

• https://www.gov.uk/government/publications/guidance-to-employers-and-businesses-about-covid-19/guidance-for-employers-and-businesses-on-coronavirus-covid-19
• https://www.hps.scot.nhs.uk/web-resources-container/covid-19-guidance-for-non-healthcare-settings/
• https://www.publichealth.hscni.net/news/covid-19-coronavirus