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How is an establishment defined?

The definition of a relevant establishment is a question of fact for an Employment Tribunal. Guidance from case law says that ‘establishment’ should be interpreted very broadly (so as to avoid employers escaping the need to collectively consult), and may consist of:

  • A distinct entity
  • With a certain degree of permanence and stability
  • Which is assigned to perform one or more tasks
  • Which has a workforce, technical means and a certain organisational structure to allow it to do so

However, there is no need for it to have the following:

  • Legal, economic, financial, administrative or technological autonomy
  • A management which can independently effect collective redundancies
  • Geographical separation from the other units and facilities of the undertaking

Related FAQs

The National Lockdown Guidance states that anyone who is clinically extremely vulnerable should not attend work. What options do I have if an employee is in the clinical extremely vulnerable category but cannot do their job at home?

The now defunct Guidance for the Tier system suggested that the clinically extremely vulnerable would be treated in the same way as those who were shielding in Lockdown 1. This means that anyone who is clinically extremely vulnerable and cannot work remotely, will be entitled to SSP. These employees should receive a letter confirming that they are deemed to be clinically extremely vulnerable/shielding and you should ask for a copy of it as evidence to support a claim for SSP. It is likely that the Lockdown 3 Guidance will be the same.

You could also furlough an employee in the clinically extremely vulnerable category. Again we do not anticipate this changing.

What happens if a patient is admitted to hospital during the pandemic?
What if I get the status wrong?

As long as you can demonstrate that you have exercised reasonable care in determining status you have discharged your obligations in that respect. However, if you are unable to demonstrate this, you may as the end user client be responsible for the contractor’s tax and NIC’s.

What type of bundle will be required by the COP for a remote hearing?

Physical bundles may not be regarded as safe for public health and there are obvious difficulties in providing them with the current restrictions in place. Electronic bundles should be provided in PDF format, preferably paginated, indexed and bookmarked. The bundles should only contain documents and authorities that are essential to the issues required to be decided at the remote hearing and should be filed with the court by email.

I lease commercial premises. Can my landlord forfeit my lease?

As part of the Coronavirus Bill there is some good news for tenants in so far as it included the following:

  • All commercial tenants in England, Wales and Northern Ireland missing rent payments are to benefit from a government ban on forfeiture of their lease.
  • Landlords then will be prevented from terminating leases and “evicting” commercial tenants.
  • The above provisions rules will apply not only to principal rent, but to “any sum a tenant is required to pay”, leaving the burden of supplying services and insuring the premises on landlords. The bill will last until 30 June 2020, with an option for the government to extend this deadline.

Whist this is helpful to any Tenant planning not to pay rent or other payments due under their lease insofar as they will not suffer forfeiture and be evicted, it should be noted that the contractual obligation to continue paying rent and all other costs due under the lease remains and Landlords will still be able to take action to recover any payments due under the lease that are in arrears.