Is there a time limit on making an insurance claim?

Some examples of the key questions to ask include:

• Is there still a viable underlying business that is likely to continue beyond the current crisis?
• What does the revised short to medium cash flow look like and will the company continue to be able to pay its liabilities?
• Does the company have the support of all of its stakeholders – lenders, shareholders, customers, suppliers and banks – even though the business might be in breach of its own obligations?
• What measures could (and should) the board put in place to protect creditors, including making sure that exposure to creditors (both collectively and individually) is not increased, assets are not sold at less than value and no creditor is treated more favourably than another?
• Is there still a reasonable prospect of the business avoiding liquidation or administration?

The key question is always whether accepting the money is in the best interests of creditors as a whole bearing in mind that accepting Government support and continuing to trade might increase the company’s overall liabilities. Directors should be mindful that if the business fails, their decisions during this critical time may be scrutinised and it is therefore important that directors have up-to-date financial information and projections to form the basis of any decisions, take stock, get the right advice and document the decisions that are taken.

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.

The change in the law has the potential to place much greater financial risks on suppliers, making it more difficult to exit a contract with a customer of doubtful solvency.  This will place increased emphasis on appropriate financial due diligence and credit checking before entering into supply contracts.

In addition to the obvious issues around financial risk, suppliers will also need to think carefully about how their contracts are drafted.  For example, any form of right that is drafted so as to be triggered on customer insolvency will clearly be problematic.  These could include:

• Retention of Title provisions, which are commonly drafted so that the right to enter premises and retake possession of the goods is triggered on insolvency;
• Provisions for brand protection, which seek to control how goods are dealt with on termination of the contract.

This is potentially a very significant development for many businesses.  We would strongly recommend specialist advice be obtained so that:

• businesses understand the potential increased risks faced; and
• where possible, contracts are updated so that appropriate protections are maintained.

Has there ever been a more important time for all staff to feel that they are able to raise concerns about their working environment?

It is a pertinent time to remind all staff that they should be able to raise concerns without the fear of repercussions. It is a good time to be reviewing and re-issuing your Freedom to Speak up/Whistleblowing policy to all. Likewise it is a good time to remind all staff that they should not treat others unfairly or detrimentally for raising health and safety concerns.

Both subjecting someone to a detriment because they have blown the whistle or raised health and safety concerns (and dismissing someone for the same) is unlawful.

You must only make a report under RIDDOR (The Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 2013) when:

• An unintended incident at work has led to someone’s possible or actual exposure to coronavirus. This must be reported as a dangerous occurrence
• A worker has been diagnosed as having COVID 19 and there is reasonable evidence that it was caused by exposure at work. This must be reported as a case of disease
• A worker dies as a result of occupational exposure to coronavirus.