Does a sponsor need to report a change in workplace if a Tier 2 visa holder is working from home as a result of Covid-19?

• Delays in preparing and submitting applications to comply with pre-commencement conditions. In this respect there can be lengthy timescales gathering evidence to support applications to comply with pre-commencement conditions, ecology, contamination and archaeology are examples of matters which can require significant periods of survey work
• Following on from the above the ability to get required experts on the site necessary to undertake the required survey work
• Delays in the determination of applications to comply with pre-commencement conditions. In this respect whilst there are deemed discharge provisions/procedures concerning certain matters, the provisions cannot be used to discharge all types of conditions
• The ability to get people on site to undertake material operations

In the circumstances, it is advisable to start considering the implementation of the planning permission early and the earlier the better. Under current legislation whilst it is possible to vary conditions, albeit potentially leading to wider issues, it is not possible to extend the life of a planning permission meaning that lawful implementation is essential to avoid the loss of that permission.

If a planning permission is lost, amongst other things it may not be granted again or may not be granted on similar terms. In the circumstances, it is advisable to seek advice given the specific facts of the case to minimise the risk of a planning permission not being lawfully implemented and expiring.

In the event that the contractor is displaying one or more of the above signs, then it is worth considering the following actions to protect the employer’s position as far as possible:

• Closely monitor the financial and on-site performance of the contractor in order to assess the likelihood and timing of potential insolvency
• Ensure all bonds, guarantees and collateral warranties have been obtained under the building contract, and if not take steps to obtain them immediately
• Consider the terms of any guarantees to ensure that the guarantor’s obligations are not inadvertently discharged
• Bonds may require adjudication to have been commenced (or even completed) prior to insolvency so as not to be stayed pursuant to insolvency laws
• Carry out an audit of the on-site plant, equipment and materials, and evidence this (for example with photographs and written records)
• Ensure that copies of all relevant documentation have been obtained, for example drawings, specifications and anything required to comply with CDM requirements. If not, take steps to obtain these
• Review the payment position under the building contract, including whether any over payments have been made to the contractor which should be reclaimed, what retention is held or has been released, whether any payment notices may be necessary, and whether there are rights of set-off which should be exercised
• Check whether the involvement of any third party is required, for example funders, landlords, tenants or purchasers who may have rights in relation to the building contract and how it is administered
• Review the terms of the building contract relating to contractor insolvency – hopefully the parties will be fully aware of the building contract terms and have been administering it correctly to date, but if it has been hiding in a draw then now would be a good time to dust it off and ensure familiarity with the relevant provisions!

In general. there is often a stick or twist decision.  If the employer chooses to financially support the contractor (for example by agreeing different payment arrangements), this may help to keep the contractor solvent and more likely to complete the project, but it also exposes the employer to greater risk if the approach is not successful.  Conversely, withholding payments  from the contractor may make insolvency a self-fulfilling prophecy.  The precise advantages and disadvantages of the approach will be dependent on the specific circumstances of each case.

Unfortunately, losses caused by pandemics are not often covered expressly under standard policies, as the risk has been difficult for insurers to price and understand.

Even where additional cover in respect of notifiable diseases has been purchased, it typically will not include Covid-19 within the range of diseases covered by the policy. If the policy includes a list of notifiable diseases, and which does not include Covid-19, it is very unlikely that cover will be available for pandemic-relates losses.

The most common types of covers that could be afforded by insurance policies for coronavirus-related losses and liabilities are traditional business interruption insurance, contingent business interruption insurance, liability insurance, as well as cancellation and abandonment insurance.

This free Getting back to business webinar was held on Thursday 7th May.

On this video, employment partner Edward Nuttman and Graham Vials went through what a consultation exercise is and when you are required to hold one. They then took you step by step through the process, describing all you will need to do to ensure legal compliance whilst at the same time being sensitive to the emotional and motivational impact on your employees and managers.

The latest Cabinet Office guidance published Monday 6 April 2020 titled ‘Procurement Policy Note PPN 02/20: Additional guidance. FAQs and model terms for construction’ provides model deeds of variation for JCT and NEC3 contracts to provide for such payments to be made. As the Cabinet Office guidance states, legal advice is likely to be required to make sure that the model variations work with your specific contracts. Please contact one of our construction specialists if you need advice and assistance.

For a copy of the guidance note click here: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/878338/PPN_02_20._Additional_guidance__FAQS_and_model_terms_for_construction.pdf