Can I argue that my contract has been frustrated?

To respond to the crisis businesses might need to exchange information to a greater extent than they would usually. They might need to discuss capacity and to coordinate supply chains (both upstream and downstream). They might need to purchase or sell jointly to ensure vital supplies are maintained. In general agreements or collaboration which:

• Avoid a shortage, or ensure security, of supply
• Ensure a fair distribution of scarce products
• Continue essential services
• Provide new services such as food delivery to vulnerable consumers

The definition of a relevant establishment is a question of fact for an Employment Tribunal. Guidance from case law says that ‘establishment’ should be interpreted very broadly (so as to avoid employers escaping the need to collectively consult), and may consist of:

• A distinct entity
• With a certain degree of permanence and stability
• Which is assigned to perform one or more tasks
• Which has a workforce, technical means and a certain organisational structure to allow it to do so

However, there is no need for it to have the following:

• Legal, economic, financial, administrative or technological autonomy
• A management which can independently effect collective redundancies
• Geographical separation from the other units and facilities of the undertaking

The Government’s Corporate Insolvency and Governance Act introduces amendments to the current rules for companies on holding meetings, to address the difficulties companies are facing due to the Covid-19 pandemic.

The new provisions apply to meetings held between 26 March 2020 and 30 September 2020 (referred to as the “Relevant Period”). Subsequent regulations by the Government can be used to shorten this period or extend by up to 3 months but not past 5 April 2021.

The provisions will have retrospective effect, so meetings that were held after 26 March 2020 that may not have met the usual legal requirements due to lockdown, will be validated under these new provisions. These provisions under the Act make amends to relevant legislation and override a company’s articles of association.

For general meetings and certain other meetings of companies, the Act states that:

• The meeting need not be held in any particular place;
• The meeting may be held, and any votes may be cast, by electronic means or other means;
• The meeting may be held without anyone being in the same place
• Persons attending the meeting no longer have the following rights: the right to attend in person, the right to participate in the meeting other than by voting, or the right to vote by particular means.

The aim of these changes is to facilitate virtual meetings, and remove the need for a physical venue.

Where a company was required to hold its AGM between 26 March and 30 September 2020, it can be held at any time before 30 September 2020.  The Secretary of State has the power to make regulations to further extend the deadline.

This will depend on the particular facts and the employee’s circumstances but an employee should co-operate with the employer so far as is necessary to enable compliance with any statutory duty or requirement relating to health and safety.

In addition, conduct outside of work can result in an employee’s dismissal if the conduct pertains to the employment relationship. If an employee breaches their lockdown rules and it affects their ability to work, such as it being no longer safe for them to attend work, or the reputation of the employer, these may be grounds for disciplinary action and subsequent dismissal.

Increased hygiene measures should be introduced to limit the spread of infection. Increase the frequency of cleaning, particularly higher risk contact points such as door handles. Avoid the use and sharing of hardcopy in favour of electronic documents; avoid sharing of tools and work equipment; increase the availability of handwashing facilities and hand sanitisers; issue anti-bacterial wipes and tissues to staff, and remind everyone to maintain good personal hygiene practices, including regular hand washing. Prominent and repeat signage will be vital in reminding workers of these steps they can take to protect themselves.

PPE – e.g. disposable gloves and face masks – are not currently legally required in the UK, but especially where social distancing might not be possible, it may be necessary to make appropriate PPE available to staff. If so, you will need to make sure there is enough available train everyone so it used properly and provide for safe disposal of used items.

MOST IMPORTANTLY – communicate with your people; invite their input and suggestions and act on them. Communication and participation in the process of a safe return to work are going to be crucial to its’ success.
Monitor for illness: train managers how to spot the symptoms of COVID-19 and have a clear process if someone is potentially infected. Continue to remind staff to only come into work if they are well and not experiencing any symptoms. A number of businesses are planning on using testing and screening methods, such as temperature checks. Remember, these steps create data privacy considerations which you will need to consider.

Do not forget existing health and safety obligations, such as maintaining sufficient numbers of fire marshals and first aiders on-site. Employers should also be aware that the Health and Safety Executive must be notified under RIDDOR of any workplace incidents that lead to exposure to COVID-19 and any cases where there is “reasonable evidence” that it was caused by exposure in the workplace. Be aware that workers are being encouraged to report to HSE failures of their employers to keep them safe from the threat of the virus.