I have essential workers who do home visits. How do I assess the risks?

From 1 July 2020 the furlough scheme has been operating more flexibly.

The key changes from 1 July 2020 were:

• All furloughed employees are subject to the new flexible furlough rules and the new basis for calculating claims
• Furloughed employees can be brought back to work on a part-time basis for any amount of time and can work any work pattern
• Employers can claim for the hours not worked compared the hours the person would normally have worked in that period
• There must be a new written furlough agreement in place to record the agreement with the furloughed employee to return to work part-time
• The new agreement (including a collective agreement) must be made before any period of flexible furlough begins but it may be varied at a later stage if necessary. The agreement must be incorporated into the employee’s contract of employment, either expressly or impliedly
• Employers must keep a record of this agreement until at least 30 June 2025, and they must also keep a record of the hours the furlough employee worked and the hours that they were furloughed
• Employees can be furloughed from 1 July 2020 for any amount of time and more than once
• However, if you re-furloughed an employee after 10 June but before 1 July 2020, they had to be furloughed for an initial period of three consecutive weeks
• Claims for payments under the scheme must not cross calendar months so if you are claiming for the initial three week period of a re-furloughed employee who was furloughed on 12 June for example, you must submit separate claims for the dates in June and July
• Although flexible furlough agreements can last any length of time, you should only submit a claim to HMRC once a week.

CEST stands for Check Employment Status for Tax and, although this should do exactly what is says on the tin, there has been criticism of its accuracy and effectiveness. The CEST tool does not test whether there is ‘mutuality of obligation’ in the relationship which is a key factor in determining status.

You are not obliged to use CEST if you are happy with your own assessment process. If you do use CEST keep a record of the certificate given at the end of the assessment and keep this on the contractor’s file. HMRC will stand by the outcome of a CEST assessment provided the information has been honest and accurate. However, you must have entered information honestly to rely on it – you can’t just say what you want to get the right answer, as HMRC may test what you have said.  Also, many people are unhappy with the CEST tool and consider it leans too much towards employed status.

As the project progresses, it is important to continually monitor the contractor’s performance.  Any one or more of the items below can be early warning signs that the contractor is in financial difficulty, and that further actions may be necessary:

• Decrease in labour or contractor’s personnel on site, and/or rapid turnover of contractor’s personnel
• Slowdown in progress on site
• Plant, equipment or materials suddenly disappearing from site for no apparent reason – unpaid subcontractors may unilaterally decide to remove items from site regardless of their contractual rights to do so
• An increasing number of defects and reduction in the quality of the contractor’s work
• The contractor seeking changes in the payment arrangements, and in particular early payments
• The contractor making spurious claims or contra charges
• The contractor seeking assignment of its benefit of the building contract
• Late filing of accounts by the contractor at Companies House
• Unsatisfied court judgements against the contractor
• Subcontractors and suppliers not being paid or being paid late
• Rumours in the press, in the industry, on site or elsewhere regarding the solvency of the contractor
• Unusual visits to site, for example from the contractor’s senior management or other personnel who had not previously been present or are not expected to be present
• Increasingly aggressive behaviour by the contractor
• The contractor’s parent company or another company within the contractor’s group displaying any of the above signs

The guidance gives numerous examples of the types of performance adjustment which parties should consider. For example this includes:

• Varying deadlines (e.g. for performance or payment)
• Varying compensation (e.g. to recognise increased costs)
• Varying the nature of performance (e.g. allowing substitute goods, allowing pert delivery of services)

The guidance also encourages a reasonable approach to enforcement, which might encourage delaying issuing formal proceedings, increased use of mediation or providing more information to the other party than would be volunteered under normal circumstances.

A quicker and more cost-effective option may be the involvement of the police given their recent allocation of emergency powers to disperse, fine or even arrest persons who flout these rules. Nevertheless, it appears that the Court is willing to support housing providers in their efforts to tackle anti-social behaviour during this time.