What guidance has the Charity Commission provided?

The duty is to inform and consult appropriate representatives of the “affected employees”.

Note that the term “affected employees” means those who may be “affected by the proposed dismissals or who may be affected by measures taken in connection with those dismissals”. The term extends beyond those immediately at risk of dismissal to include those affected by measures associated with the redundancies.

“Appropriate representatives” can be:

• The Trade Union (if recognised)
• (For any roles not covered by collective recognition) any existing standing body of elected or appointed employee representatives (if already in place)
• Employee representatives, who are elected specifically for redundancy consultation

Yes. With respect to employees you have an obligation to protect their health so you can gather information to do that. You might gather information from your employees on who has the virus, who has had it and recovered and also who has tested negative. You might also want to know if individuals have been in contact with someone who has it or if they are in a vulnerable group. It is reasonable to want to know where individuals have travelled. In the future it may also be reasonable to know if they are planning to travel to a virus hot spot, as the impact of the virus around the world is likely to continue for some time even after the outbreak has been contained in the UK.

It is reasonable to gather some information about visitors to your site, be they customers or suppliers, as this information will also help protect your staff. However, you should keep what you gather to a minimum. For visitors, it’s unlikely that you need to know anything more than they have Covid-19, are displaying symptoms or have recently been in contact with someone who has the virus.

Commercial partner Damien Charlton explains the basic principles of force majeure, and how they are relevant in the current extreme circumstances caused by the Covid-19 pandemic.

Mortuaries are a sui generis use, unless ancillary to some other use of land, a hospital for example.

Sui generis uses are not within any Use Class. Consequently planning permission is required for the:

• Change in the use to a sui generis use
• Subsequently for the change in the use to an alternative use, whether that be another sui generis use or a use within a Use Class

Acknowledging the above, if the scale of the use is above de minimis, planning permission is likely to be required to change the use of a warehouse or factory unit into a temporary mortuary.

Should planning control be breached, a local planning authority must decide whether to take enforcement action or not. That enforcement is discretionary was recently reiterated in a Ministerial Statement issued on 13 March 2020 a link to which is below.

https://www.parliament.uk/business/publications/written-questions-answers-statements/written-statement/Commons/2020-03-13/HCWS159/

Depending on the form of the enforcement action, there could be a right of appeal.

Many will have worked collaboratively with their suppliers and customers to deal with the immediate public health crisis. This will have meant offering flexibility as to contractual arrangements, whether in delivery dates, volumes of goods or services supplied, or even in the specification of what has been delivered.

If this is the case, it is important that businesses now do their legal housekeeping and make sure they have a proper record of what has been agreed. Unfortunately, our experience shows that many legal disputes arise out of amendments to contracts, typically where the parties to the contract each have a different view about what exactly they agreed to change.

We would therefore advise businesses to review any amendments that they might have agreed either verbally, by email, or otherwise, and consider whether they need to be captured in a more formal way which will make clear exactly what has been agreed to be varied, and (where appropriate) how long that variation will remain in force.

It’s also important to remember that some contracts contain provisions that set out specific requirements about how amendments are to be made. For example, they might require that amendments are made in writing (rather than verbally). These “No Oral Modification” clauses are commonly found in commercial contracts, and the courts have recently shown that they are willing to enforce them.

Failing to deal with amendments in accordance with contractual requirements could therefore have a serious impact on businesses as they recover from the disruption caused by the lockdown. If they end up in dispute with a customer or supplier, a business could find that the contract has not actually been amended in the way that they think – potentially leading to legal costs and liabilities at the worst possible time.