How is an establishment defined?

Employees continue to accrue leave during furlough (whether they are on full furlough or flexible furlough) and can take leave during periods of Flexible Furlough (so long as you top the grant up to full pay for any days taken as holiday).

Government guidance has been updated to state that “Employees should not be placed on furlough for a period simply because they are on holiday for that period.” If a period of furlough happens to coincide with an employee’s holiday then you should ensure that there are business grounds to support furlough being used in that instance so that it isn’t just being used as a means to fund holiday utilisation.

The outbreak is certainly going to have an impact on new lease negotiations.

Undoubtedly many transactions will be put on hold or indeed stop entirely. Where matters are ongoing, tenants may well look to strengthen rent suspension provision.

It is also possible that tenants and their representatives will also now seek to include termination rights for unseen events. In this regard, the concept of force majeure may start to appear more often in leases.

In both of the examples above, such attempts are not likely to be well received from landlords who will undoubtedly suggest that tenants ensure that their business interruption insurance policies are robust enough to protect the tenant in the event of any future pandemic events.

Another approach tenants might adopt going forwards in negotiations for a new lease (or indeed seeking to vary existing leases), is to move away from the traditional market rent model to a turnover rent arrangement. This will offer some protection going forward if trading conditions deteriorate, but again getting institutional landlords to agree such an approach may prove difficult.

In appropriate cases, disciplinary action and then dismissal may be fair if an employee refuses to wear a face covering in the workplace. For example, if this is in breach of the government guidance or if  employer has issued a reasonable management instruction to this effect due to an identified health and safety risk.

It is important that employers use a fair and reasonable procedure when deciding whether to discipline and/or dismiss an employee and that its actions does not unlawfully discriminate against employees who have legitimate reasons for not wearing masks, such as those individuals who have health conditions like asthma.

You must exercise reasonable care in assessing status and making a status determination, considering what the position would be if the contractor was engaged directly by the end user client instead of via a PSC.

Status is usually determined by looking a number of factors and how they apply to the contractor’s working arrangements. This is a difficult exercise that is usually carried out by employment and tax lawyers and it is full of grey areas. We have a toolkit that can help you navigate this process which Paul will tell you more about at the end of the session.

The key factors used to determine status  are:

• Control:
  • How much control does the end user client have over the contractor in terms of working arrangements (hours, place of work) and how the work is carried out? Or is the individual contractor able to determine how and when they work and without direct supervision of the end user client?
• Personal service:
  • Is the contractor required to perform the services personally without the right to send a substitute? If there is a right to appoint a substitute is this subject to end user client approval?
• Mutuality of obligation:
  • Is the end user client obliged to provide the contractor work with a mutual obligation on the contractor to accept that work?

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.