Is my business covered by insurance for notifiable diseases?

The Cabinet Office has published a useful Procurement Policy Note (“PPN”) on relief available to suppliers due to Covid-19 (available here). In brief, you should not be penalised by a public sector body, if, in the current circumstances, you are unable to comply (fully or partly) with your contractual obligations. Public sector bodies are expected to work with suppliers and, if appropriate, provide relief against current contractual terms. This is in order to maintain business and service continuity and avoid claims being accepted for other forms of contractual relief, such as the occurrence of a force majeure event.

The types of relief that may be available to suppliers to the public sector will depend on the existing contracts in place. Some contracts may have a payments by result mechanism, whereas others may be based on certain key performance indicators (KPIs) being met. Other contracts may not include any such mechanisms and therefore it will be a matter for discussion between suppliers and the public sector body.

The PPN provides that, rather than a supplier seeking to invoke a clause that would permit the supplier to suspend performance of its obligations (such as a force majeure clause), public sector bodies should first work with the supplier to amend or vary the contract. Any changes should be limited to the particular circumstances and considered on a case-by-case basis. Changes could include:

• Amending the contract requirements
• Varying timings of deliveries
• Relaxing KPIs or service levels
• Extending time for performance (e.g. revising a contract delivery plan), and/or
• Preventing the public sector from exercising any rights or remedies against the supplier for non-performance (e.g. liquidated damages or termination rights).

These should only be temporary variations and the contract should return to the original terms once the impact of the Covid-19 outbreak on the contract has ended. Discussions with the public sector body about any changes that are agreed should be documented, in a variation signed by both parties.

A public sector may also need to take account of regulation 72 of the Public Contract Regulations 2015, to ensure that any changes to a contract (even of a temporary nature) do not trigger a requirement to conduct a new tender process. Whilst this may be unlikely to be the case with temporary variations, suppliers should still bear this in mind when discussing any changes to a contract with a public sector body.

If you are a supplier to a public sector body and you are currently struggling to meet your contractual obligations, we recommend that you take legal advice as to whether it might be possible to take advantage of the flexible approach that the PPN requires public sector bodies to adopt – it could be that you can avoid service credits or other financial deductions, or the need to serve formal notices such as “force majeure” or other relief notices.

• 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.

As the pandemic progresses, more and more people will be forced to self-isolate and, inevitably, both tenants and staff will be affected. Put plans in place to mitigate the impact that this may have, particularly regarding staff shortages. The most important focus here should be communication.

The Covid-19 outbreak will affect the pace of everyday life and delays will be expected. Rather than allowing the pandemic to take over completely, it is important to maintain open communication with tenants as much as possible and inform them of any front-facing challenges that you may face.

The Protocol does envisage that delays may occur and allows for some degree of flexibility. Whilst all efforts should be made to conduct inspections where practical and possible, it should be expected by all parties that timescales will be extended during this crisis. It is fundamental, however, that all changes made to standard practice are communicated and explained to tenants to manage expectations.

Similar flexibility should be afforded to tenants. As households are required to isolate it will not always be possible to gain access to properties as would usually be expected and required. Likewise, vulnerable people will wish to protect themselves and their families and may refuse access on this basis. During this period, a degree of understanding must be exercised and concessions made.

Inspections may be delayed if anyone in the household has  symptoms. A questionnaire should be prepared for those visiting properties to assess so far as possible the risk; Personal Protective Equipment should be issued to those visiting, and government guidelines followed.

The Regulations do not require any prior agreement between an employer and employee that it was not reasonably practicable for holiday to be taken for it to be carried over.

However, if an employee requests holiday then an employer must have ‘good reason’ for refusing it due to coronavirus. The term ‘good reason’ is not defined so the Government will expect employers, employees and (if necessary on any dispute) the Courts to apply common sense.

The Regulations are not confined to key workers so could, in principle, be used by employers for a wider range of employees.

The Government guidance suggests that the following factors should be taken into account when considering whether it was reasonably practicable to take the leave in the relevant year:

• Whether the business has faced a significant increase in demand due to COVID-19 that would reasonably require the worker to continue to be at work and cannot be met through alternative practical measures.
• The extent to which the business’ workforce is disrupted by COVID-19 and the practical options available to the business to provide temporary cover of essential activities.
• The health of the worker and how soon they need to take a period of rest and relaxation.
• The length of time remaining in the worker’s leave year.
• The extent to which the worker taking leave would impact on wider society’s response to, and recovery from, the effects of COVID-19.
• The ability of the remainder of the available workforce to provide cover for the worker going on leave.

Where an employer is proposing to dismiss:

• 100 or more employees at one establishment within a 90-day period, consultation must begin at least 45 days before the first dismissal takes effect
• Between 20 and 99 employees within a 90-day period, consultation must begin at least 30 days before the first dismissal takes effect
• If you are proposing to dismiss less than 20 employees then there are no minimum time limits but you must adhere to a fair process which will involve individual consultation and providing the employee with a right of an appeal