We are conscious that asking a particular group of people, who have a protected characteristic under the Equality Act 2010, to restrict their duties, could expose the Trust to allegations of discrimination. What steps can we take to avoid someone/a group of people feel that they have been treated differently because of their protected characteristic?
A claim for indirect discrimination is the most likely risk here. The first point to make is that the decision to review duties is being made based on the growing amount of medical evidence that the BAME community is being disproportionately adversely affected by the COVID 19 pandemic compared to other ethnic groups. The key is to ensure that blanket policy decisions are not taken, nor should assumptions be made about the risk to each individual concerned. Decisions should only be made on an individual basis with an open dialogue with the individual concerned. You as their employer, need to ensure that the individual feels listened to and heard; that this is not just a tick box exercise.
Consider having a working group which has an overview of the policy decisions being made. That working group should contain representatives from across the staff groups including staff side, but importantly, representatives from different ethnic backgrounds to ensure the important voices are heard. Accountability should be built into that group. This group should also be a safe environment for staff to raise concerns about their health and safety and safe systems at work.
Related FAQs
If changed circumstances mean that a business wants to exit from a contractual arrangement, then before trying to terminate it, a careful review should be carried out to see whether a right to terminate actually exists. For example:
- Not every contract for the sale of goods contains the right for the buyer to terminate in circumstances where the supplier hasn’t done anything wrong. If a business has entered into a contract on the supplier’s standard terms, it is unlikely to contain any such provision
- A contract for the provision of services is unlikely, if drafted by the customer, to contain a provision that allows the supplier to walk away from the arrangement at short notice, or perhaps at all
If a party tries to terminate a contract when it doesn’t have the right to do so, the other party will likely claim breach of contract and could sue for damages. In the case of a long term or high-value contract, this could amount to a very significant liability.
Even if the right to terminate the contract does exist, there might be particular rules about the following:
- How much notice has to be given
- How such notice has to be served (for example, it might have to be in writing to a particular address)
- When the notice can be served (perhaps on an anniversary of the start of the contract)
- How much a party has to pay if it cancels (for example, for raw materials, for work done to date, or even the whole contract price)
All of these factors must be taken into account, and any contractual processes for termination are followed.
The Government will provide the lender with a partial guarantee (80%) against the outstanding facility balance, subject to an overall cap per lender. Note, the Government guarantee is to the lender only, the borrower will always remain 100% liable for the debt.
We understand that will make an initial claim for recovery against the borrower and will, once its normal recovery procedures have been completed, claim against the Government guarantee.
Under usual rules, workers are entitled to a minimum of 28 days holiday including bank holidays, each year. Except in limited circumstances, it cannot be carried between leave years meaning that workers lose their holiday if they do not take it.
The government passed emergency legislation relaxing the carry-over of the 20 days leave entitlement provided under EU law. Where it is not reasonably practicable for an employee to take leave in the relevant leave year as a result of the effects of the coronavirus then they could be entitled to carry over the untaken leave into the next year.
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.
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.