Can you ask employees for evidence of the requirement to self-isolate under the Test and Trace scheme?

A reduction in hours or salary or changes to hours or patterns of work is a contractual change – you can’t just impose it without significant risk. The same applies for lay-off or short-time working where there is no existing contractual right to impose these.

In summary, the process that an employer should follow to implement these measures is as follows:

1. Communicate the Company’s position clearly and the urgent need to achieve temporary cost-saving to ensure the ongoing financial viability of the organisation
2. Explain the proposed changes in detail and seek the employee’s agreement, and
3. Record the agreed changes in a letter which is counter-signed by the employee.

If employees will not agree then employers will be at substantial risk of claims for unlawful deduction of wages, breach of contract and/or constructive unfair dismissal if they seek to impose these changes unilaterally. Employers should be mindful that this approach is likely to cause significant employee relations issues and dissatisfaction if only some employees agree to a reduction in pay. Employers should have a clear strategy for what their approach will be if this is the case – for example, they may wish to instead explore a different measure such as redundancies. This may form part of the employer’s communication when explaining the reason for the changes and seeking the employee’s agreement.

Unions: Employers should also be aware that where there is a recognised trade union in respect of any part of the workforce which is being asked to agree to a change to terms and conditions, the recognition agreement or collective agreement will require the employer to consult and/or negotiate with the trade union in the first instance.

Collective consultation: Where 20 or more dismissals are proposed at one establishment in any 90-day period, there are stringent collective consultation rules which apply (regardless of whether the employees have two years’ service or not). All dismissals count towards this total unless the dismissal is “not related to the individual concerned” – therefore dismissals for things such as conduct or capability do not count, but most other dismissals will count. This will include where you are imposing changes to the contract such as reduced hours or pay.

The rules on collective consultation set out a prescriptive and time-consuming process which must be followed, and minimum timescales before any redundancies can take effect. The cost of any claims relating to failure to follow collective consultation requirements are substantial, and specific advice should therefore always be sought before seeking to implement collective redundancies. We will be publishing further guidance on this on the Hub shortly.

The Government expects the use of bespoke contractual documents to implement temporary arrangements relating to your PFI contracts.

With time and resource precious commodities, focus should be given to documenting:

• The key changes to your PFI requirements
• The temporary nature of the measures
• The requirement for best efforts on behalf of the PFI Contractor
• The importance of continued health and safety measures at all times

If changed circumstances mean that a business wants to exit from a contractual arrangement, then before trying to terminate it, a careful review should be carried out to see whether a right to terminate actually exists. For example:

• Not every contract for the sale of goods contains the right for the buyer to terminate in circumstances where the supplier hasn’t done anything wrong. If a business has entered into a contract on the supplier’s standard terms, it is unlikely to contain any such provision
• A contract for the provision of services is unlikely, if drafted by the customer, to contain a provision that allows the supplier to walk away from the arrangement at short notice, or perhaps at all

If a party tries to terminate a contract when it doesn’t have the right to do so, the other party will likely claim breach of contract and could sue for damages. In the case of a long term or high-value contract, this could amount to a very significant liability.

Even if the right to terminate the contract does exist, there might be particular rules about the following:

• How much notice has to be given
• How such notice has to be served (for example, it might have to be in writing to a particular address)
• When the notice can be served (perhaps on an anniversary of the start of the contract)
• How much a party has to pay if it cancels (for example, for raw materials, for work done to date, or even the whole contract price)

All of these factors must be taken into account, and any contractual processes for termination are followed.

Local government legislation formerly stipulated that councillors must be physically present to vote and this requirement has already led to the widespread cancellation of Council meetings.  There is a limit to what can be achieved under the chair’s emergency powers and delegation to officers.

The Government has now legislated to allow for remote voting until 7 May 2021. The secondary legislation required was issued in draft on 2 April and has been in force since Saturday 4 April.

The legislation allows for committee meetings to go ahead where members and any members of the public attending remotely can all times “hear (and where possible see) and be heard (and where possible be seen) by the other members in attendance”.

It remains to be seen how many local authorities take up the opportunity to hold a virtual committee meeting. Concern has been expressed that the demographic of local councillors may mean that members have difficulty with the technological mechanisms for holding such meetings. However, the message from the Secretary of State is clear that wherever possible, the planning system should keep moving in these current times.

This is critical. The guidance remains clear – IF YOU CAN WORK FROM HOME YOU SHOULD CONTINUE TO DO SO. Bringing people back into work unnecessarily is a big mistake.

Think about how many employees should physically return to the workplace – the fewer the people on site, the lower the risk AND the less pressure on public transport.

Employers will need to be very careful to recognise workers in vulnerable groups or who develop or live in a household with someone who develops symptoms of Covid-19 – again, look at government guidelines. You should understand that this will mean a higher number of staff absences and consider how this might be managed.

Look to keep smaller teams of workers together, minimise physical meetings and if you MUST have them, keep them short and under 15 minutes. Be imaginative – use online platforms like Teams and Zoom wherever you can.