Are permitted development rights now in existence for the creation of emergency medical facilities?

If an employee is required under government guidance to wear a face mask during the course of their employment and there is no applicable exemption, any fine issued would be payable by the employee, not the employer.

The Government acknowledges that there may need to be some flexibility to enable developers to meet any existing s106 obligations, in particular financial contributions, during the current health crisis and in recent guidance it encourages Councils “to consider whether it would be appropriate to allow the developer to defer delivery”. However, the Government considers that the existing arrangements for varying a section 106 agreement by way of a deed are sufficient and will not be legislating for any additional temporary mechanisms.

In the absence of any formal variation, the Government does however advise Councils to take a “pragmatic and proportionate approach” to enforcement of planning obligations at the current time.

The Government’s advice does not refer to concerns over the quantum of any planning obligations but is concerned only with the timing for delivery. However, the viability behind many sites is likely to change as a result of temporary site closures, or the availability of construction materials and labour once sites can re-open. Where there is already a s106 agreement in place, a developer may wish to renegotiate their position on the basis that certain planning obligations are no longer affordable.

Where a s106 agreement was entered into longer than 5 years ago, an application can be made to the Council to formally vary a planning obligation that is now “without purpose”. Any refusals can be appealed to the Secretary of State.
Where a s106 agreement was entered into within the last 5 years, the agreement can only be modified with the agreement of the Council. The ability to renegotiate a s106 agreement will therefore come down to the willingness of the Council to accept the revised viability position. Where Councils are willing to consider this, a robust viability assessment agreed with the Council is likely to be needed.

The workplace will not revert to its pre-Covid-19 state overnight, with social distancing in the work place likely to remain in place for quite some time to come.

This could mean that businesses will need to think carefully about how their capacity will be impacted, and how this will affect their ability to perform contractual obligations.

For example, if a business has an outsourcing contract under which it has to perform a business process, or produce a particular output, will it be able to comply with contractual performance standards whilst social distancing is still in place? In the context of a manufacturing business, what will be the impact on production schedules and delivery dates? There might also be an impact on operating costs, for example if processes are changed and additional shifts are introduced – can these additional costs be sustained?

Businesses need to plan a safe system of work for their employees to ensure they comply with Health and Safety legislation, but they also need to consider how this will impact on their ability to perform pre-existing contractual obligations. Ultimately, contractual arrangements with customers might need to remain on a revised footing for a number of months.

Getting to a point where agreement is reached on allocation of additional costs and/or changes to key elements of a contract such as scope of work, performance standards and delivery date will require co-operation between contracting parties. Again, it is important that any variations that are agreed are recorded properly and follow the required contractual procedures.

It is unlikely that an employer can place such a requirement on staff without infringing the employee’s privacy. If the employee is acting in accordance with the rules, limiting their activity would likely be considered unreasonable.

• Before any agreed reduction in wages, actual changes to earning patterns (loss of overtime, for example) may impact the pensionable salary as defined under the scheme rules, with knock-on effects to a number of benefit calculations, such as death in service benefits.
• Contractual changes to member salaries may adversely impact accrued benefits as the final salary figure may be reduced to a greater or lesser extent depending on the duration of furlough and the severity of any reductions in wage, and hence reductions may be difficult to agree with staff.
• Reducing employer contributions will be subject to a number of the same considerations applicable to a DC scheme listed above. There will also be a need to change the rules and interact with the trustees, although it may be possible to override the rules with a direct contractual agreement with members.
• Reducing employee contributions will also depend on the scheme rules, particularly as to whether there are any discretionary powers to suspend contributions, or pensionable service.
• The rules will need to be considered for any unexpected consequences of furlough: depending on the wording of the rules, furlough may or may not be considered a leave of absence and may or may not have the effect of terminating pensionable service. This could have far-reaching consequences.
• In particular, if the workforce’s pensionable service is inadvertently terminated as opposed to suspended in accordance with any relevant rule, this could trigger a statutory employer debt on an employer participating in a multi-employer scheme, if pensionable service continues for employees of other employers. This sort of issue is unlikely to be spotted until after the event, and therefore difficult to untangle. However, an employer should be able to take advantage of the “period of grace” provisions by notifying the trustees of its intention to re-admit employees to pensionable service within the next 12 months.
• Clearly the impact of the Coronavirus Job Retention Scheme on DB schemes is complex and legal advice should be sought before any changes are considered.