Are all employees required to stay at home?

As part of the Coronavirus Bill there is some good news for tenants in so far as it included the following:

• All commercial tenants in England, Wales and Northern Ireland missing rent payments are to benefit from a government ban on forfeiture of their lease.
• Landlords then will be prevented from terminating leases and “evicting” commercial tenants.
• The above provisions rules will apply not only to principal rent, but to “any sum a tenant is required to pay”, leaving the burden of supplying services and insuring the premises on landlords. The bill will last until 30 June 2020, with an option for the government to extend this deadline.

Whist this is helpful to any Tenant planning not to pay rent or other payments due under their lease insofar as they will not suffer forfeiture and be evicted, it should be noted that the contractual obligation to continue paying rent and all other costs due under the lease remains and Landlords will still be able to take action to recover any payments due under the lease that are in arrears.

Data on properties, and people, has never been more important.

Given that compliance is at risk here, such a decision must be made by the Board to ensure good governance. Board approval should be sought and recorded for the approach the organisation is taking.

It is essential that you continue to record your data on compliance and report to your board at all times, and that there is a clear audit trail for issues with access, and if appropriate to the Regulator. Access issues as a result of self-isolation should be readily identifiable.

Operatives need to be provided with the tools to operate in as safe a way as possible:

• Checklist of questions to ascertain occupant’s current health
• Protective equipment (masks, gloves, over clothing)

The Gas Safe website is a useful resource for updates: https://www.gassaferegister.co.uk/help-and-advice/covid-19-advice-and-guidance/

All organisations have underperformers. Capability is a potentially fair reason to dismiss and is separate to any redundancy procedures.

Generally, capability falls into either absences through illness or underperformance in the role. Those who are absent through sickness can be furloughed, but when furlough comes to an end they will need to go back onto sickness. If you are looking to tackle absence then you need to tackle long term and short term absence in a different way.

Long term absence: You need to establish whether the employee is able to return to work (with or without reasonable adjustments) in the medium term. This requires medical opinion and be careful of disability issues. Reasonable adjustments are likely to be important.

Short term absence: You will need to demonstrate that you have fair absence triggers in place and there is normally be a 3 stage procedure: warning and final warning followed by dismissal on notice. Each stage needs a fair procedure, with written information, a fair hearing and the opportunity to appeal. Be careful of disability issues.

As for underperformance: To tackle this, you will need to have clear SMART objectives in place and evidence of the employee failing to meet these. There would then normally be a 3 stage procedure: warning and final warning followed by dismissal on notice. Each stage needs a fair procedure, with written information, a fair hearing and the opportunity to appeal.

If you sponsor migrants under Tier 2 or Tier 5, you will not be required to report a sponsored employee’s absence if it is linked to coronavirus and you have authorised this absence e.g. they are self-isolating and you have received an online isolation note.

The Home Office has confirmed that sponsors do not need to withdraw sponsorship for affected employees who have been absent from work for more than 4 weeks if they consider these are exceptional circumstances, which would include absences related to coronavirus. It does however remain extremely important to know where your sponsored workers are and to have up to date contact details.

Many policies will only provide business interruption cover if it arises from property damage. The FCA has acknowledged that insurers are entitled to reject claims in relation to such policies, notwithstanding the success of the FCA’s test case in the Supreme Court, and which was generally favourable to policyholders [Insert a link here to our update on the test case]. In other cases the policy wording will be less clear and businesses may legitimately feel that their insurer is wrongly withholding payment.

One route of challenge to an insurer’s decision is via one of the well-publicised class actions. Another route of challenge is by a complaint to the Financial Ombudsman Service (FOS). This service is open to consumers and small and medium-sized businesses, ‘micro-enterprises’, charities and trusts. The service will be an attractive option for many businesses, as it is free and relatively quick (although it remains to be seen how the service keeps up with an increase in demand as a result of the pandemic). You will need to have complained to your insurer before bringing a complaint with the FOS.

Further details can be found here.