When does Flexible Furlough start?

To qualify for a grant under the scheme you must pay your furloughed staff the wages you are claiming for. Failure to do so may result in a HMRC investigation and/or claims from furloughed staff for unlawful deductions from wages and possibly constructive dismissal claims.

Normal benefits including non-monetary benefits should continue during furlough unless the individual has agreed in writing to reduce or remove a benefit during this time.

Employers are expected to apply for one or more of the financial support schemes available to be able to continue to pay staff.

Due to the new guidance on social distancing and remote working, the Planning Inspectorate initially stated that site visits, hearings and inquiries would be cancelled. However, there is very much a push from the Secretary of State to keep the planning system moving notwithstanding the requirements to adapt to new ways of working. The Government now expects all hearings to be conducted virtually and where a virtual hearing is not possible, the expectation is that alternative arrangements will be put “speedily” in place and in accordance with social distancing requirements.

The Planning Inspectorate have been exploring ways of conducting hearings and inquiries remotely using technological means and conducted their first “digital” hearing on 11 May .

The Business and Planning Act 2020, which entered the statute books on 22 July 2020, includes provisions which allow more flexibility in relation to how appeals are determined including an ability for the Secretary of State to decide to adopt a procedure which is a combination of written representations, a hearing and/or an inquiry.

Site visits have re-commenced where it is safe to do so. The Inspectorate is looking at whether a site visit is necessary and has conducted a trial of “virtual site visits” where sites are assessed by means of photographs or video evidence.

The Planning Inspectorate have subsequently been scaling up conducting digital hearings, which also includes holding virtual local plan examination hearings.

As their employer, you have an overriding duty to provide a safe system of work. The Trust would not be able to run a defence to say that an employee “waived their rights” and chose to continue to work. Provided the decision around restricting duties has been carefully thought out, a full risk assessment undertaken and the employee has been truly consulted about the impact on them, then the decision taken will be a reasonable management instruction. Failing to follow that reasonable management instruction could amount to a disciplinary offence.

The courts are seeking to adapt to our new circumstances and have urgently been looking to introduce new ways of working. The courts have been testing out different ways of holding court hearings. The advice is changing almost daily and some courts have been developing local practices. Going forward the court, the parties and their representatives will need to be more proactive about all forthcoming hearings.

Everyone involved in the case is to consider as far ahead as possible how future hearings should best be undertaken and work collaboratively. It will normally be possible for all short, interlocutory, or non-witness, applications to be heard remotely. Some witness cases will also be suitable for remote hearings. The parties just need to ensure that everyone involved can use the technology suggested.

The courts have been looking at and held remote hearings using, non-exhaustively, BT conference call, Skype for Business, court video link, BT MeetMe, Zoom and ordinary telephone call. Bundles for the hearing will be prepared and circulated electronically.

If the hearing cannot be held remotely because the parties do not have the requisite technology or the length of the hearing combined with the number of parties or overseas parties, representatives and/or witnesses make it undesirable to go ahead with a hearing in court at the current time, then it may be that the case will need to be adjourned. We are hearing of trials being adjourned and that they will not be re-listed before at least September.

HMCTS has advised that several priority courts will remain open during the coronavirus pandemic to make sure the justice system continues to operate effectively. It publishes a daily operational update from the courts and they aim to update it by 9am. The link is https://www.gov.uk/guidance/hmcts-daily-operational-summary-on-courts-and-tribunals-during-coronavirus-covid-19-outbreak.

Also, the courts have circulated a civil listing priority list with Priority 1 listing work which must be done and which includes injunctions, any applications in cases listed for trial in the next three months, any applications where there is a substantial hearing listed in the next month and all Multi Track hearings where parties agree that it is urgent.

In the Priority 2 list, which consists of hearings which could be done, are enforcement of trading contracts, trial involving the survival of a business or the insolvency of an individual, small and fast track trials where the parties say they are urgent, and appeal in these kinds of cases.

Similarly, in arbitration proceedings, the parties and arbitrators are being encouraged to utilise technology to make sure that hearings take place. We have heard of Zoom being used very successfully for multi-party proceedings.

The Coronavirus pandemic will have impacted businesses in many different ways, but some of the most likely impacts that could have a legal implication are as follows:

• Services were not performed in accordance with contract during the period of disruption. This could be a reduction in volume of services performed, a suspension of services, or performance in a way that does not comply with contractual KPIs
• Late delivery or non-delivery of goods because of factory closures, or disruption in the supply chain
• Changes being agreed between parties to contracts to deal with the consequences of the Covid-19 outbreak