Flexible working

• Be alert to the fact that guidance on treating Covid-19 may change with emerging knowledge/scientific data and this may require subsequent modifications to treatment.
• Critical care staff should support healthcare professionals who do not routinely work in critical care but need to do so.

The guidance gives numerous examples of the types of performance adjustment which parties should consider. For example this includes:

• Varying deadlines (e.g. for performance or payment)
• Varying compensation (e.g. to recognise increased costs)
• Varying the nature of performance (e.g. allowing substitute goods, allowing pert delivery of services)

The guidance also encourages a reasonable approach to enforcement, which might encourage delaying issuing formal proceedings, increased use of mediation or providing more information to the other party than would be volunteered under normal circumstances.

Employees on Flexible Furlough can engage in training during hours which you record your employee as being on furlough, as long as in undertaking the training the employee does not provide services to, or generate revenue for, or on behalf of their organisation or a linked or associated organisation.

Where training is undertaken by furloughed employees during hours which you record your employee as being on furlough, at the request of their employer, they are entitled to be paid at least their appropriate national minimum wage for this time.

As the project progresses, it is important to continually monitor the contractor’s performance.  Any one or more of the items below can be early warning signs that the contractor is in financial difficulty, and that further actions may be necessary:

• Decrease in labour or contractor’s personnel on site, and/or rapid turnover of contractor’s personnel
• Slowdown in progress on site
• Plant, equipment or materials suddenly disappearing from site for no apparent reason – unpaid subcontractors may unilaterally decide to remove items from site regardless of their contractual rights to do so
• An increasing number of defects and reduction in the quality of the contractor’s work
• The contractor seeking changes in the payment arrangements, and in particular early payments
• The contractor making spurious claims or contra charges
• The contractor seeking assignment of its benefit of the building contract
• Late filing of accounts by the contractor at Companies House
• Unsatisfied court judgements against the contractor
• Subcontractors and suppliers not being paid or being paid late
• Rumours in the press, in the industry, on site or elsewhere regarding the solvency of the contractor
• Unusual visits to site, for example from the contractor’s senior management or other personnel who had not previously been present or are not expected to be present
• Increasingly aggressive behaviour by the contractor
• The contractor’s parent company or another company within the contractor’s group displaying any of the above signs

Many businesses that supply directly to consumers have been concerned to understand their legal position in relation to services that have been cancelled, or that they have been unable to perform, because of the Covid-19 pandemic, and in particular how to deal with deposits paid by consumers for such services. With some degree of restriction on the hospitality and tourism sectors likely to remain in place for some time, such questions will remain important for the foreseeable future.