Can I ask my employees to stay away from home overnight during the national lockdown?

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.

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.

According to the guidelines laid down by the Treasury, many Start-up businesses will not be considered “viable” as they are at an early stage in the investment cycle (i.e. delivering negative returns but with strong growth prospects). This means they are unlikely to qualify for CBILS although for primarily UK based Start-ups it is still worth making enquiries as policies are rapidly evolving.

For early-stage businesses in their first two years of trading, the British Business Bank’s Start-Up Loans programme (loans £500 to £25,000 at 6% p.a. interest) may be more suitable. Visit www.startuploans.co.uk for more information.

For start-up businesses that are unable to access CBILS, the Government launched The Future Fund in May 2020 via the British Business Bank, which provides convertible loans to UK-based innovative companies ranging from £125,000 to £5 million, subject to at least equal match funding from private investors. This scheme is available until 30 September 2020 initially.

Your business is eligible if:

• it is UK-incorporated – if your business is part of a corporate group, only the parent company is eligible
• it has raised at least £250,000 in equity investment from third-party investors in the last five years
• none of its shares are traded on a regulated market, multilateral trading facility or other listing venue
• it was incorporated on or before 31 December 2019, and
• at least one of the following is true: (i) half or more employees are UK-based; and/or (ii) half or more revenues are from UK sales.

Further information is available on the Government website, www.gov.uk/guidance/future-fund

The Government is also offering additional support for small and medium size firms that are primarily focused on research and development. This targeted support is available through a continuity grant and loan scheme. The grant scheme is only available until 29 May 2020 while the loan scheme is open for applications until all the money is allocated or 31 December 2020 (whichever is earlier). This scheme is administered by Innovate UK, the national innovation agency, and this support will mostly only be available to existing Innovate UK customers.
Further information is available on the on the Government website, www.gov.uk/government/publications/access-coronovirus-business-innovation-support-package

An employer has a duty of care to its workforce and must take reasonable precautions to protect the health and safety of employees. Employers also have a duty of care towards anyone entering or using their place of business, such as visiting clients or customers.

This means that if an employer reasonably believes that wearing face masks at work is appropriate and necessary, it can issue an instruction to employees to this effect and employees should abide by this as far as possible.

However employers should be cautious about introducing and enforcing a policy across its business which requires its staff to wear face masks as there is the risk of unlawfully discriminating against people who are exempt from wearing face coverings or have legitimate reasons for not doing so. An employer should also consider the duty to make reasonable adjustments for disabled employees and discuss any concerns raised by employees who do not want to or feel unable to wear a mask.

A claim for indirect discrimination is the most likely risk here. The first point to make is that the decision to review duties is being made based on the growing amount of medical evidence that the BAME community is being disproportionately adversely affected by the COVID 19 pandemic compared to other ethnic groups. The key is to ensure that blanket policy decisions are not taken, nor should assumptions be made about the risk to each individual concerned. Decisions should only be made on an individual basis with an open dialogue with the individual concerned. You as their employer, need to ensure that the individual feels listened to and heard; that this is not just a tick box exercise.

Consider having a working group which has an overview of the policy decisions being made. That working group should contain representatives from across the staff groups including staff side, but importantly, representatives from different ethnic backgrounds to ensure the important voices are heard. Accountability should be built into that group. This group should also be a safe environment for staff to raise concerns about their health and safety and safe systems at work.