What do I do if I have been endorsed for a Global Talent, Start-up or Innovator visa but my endorsement is due to expire?

Employees on Flexible Furlough can engage in training during hours which you record your employee as being on furlough, as long as in undertaking the training the employee does not provide services to, or generate revenue for, or on behalf of their organisation or a linked or associated organisation.

Where training is undertaken by furloughed employees during hours which you record your employee as being on furlough, at the request of their employer, they are entitled to be paid at least their appropriate national minimum wage for this time.

Hosted by Advanced Manufacturing Forum, Partner, Matt Cormack discussed in this webinar how to avoid risks associated with your customer and supply chain contracts during this challenging Covid-19 period.

The webinar covers common questions such as:

• Can force majeure excuse me or my suppliers from paying on time?
• What are the risks to my business if I can’t perform on time due to Covid-19?
• What will happen to my contracts if the Government takes steps to require me to close down my facility?

To watch the full recording, please click here. (To note the recording begins at 10 minutes)

If you have any follow up questions, please do not hesitate to contact one of our lawyers detailed below or use our ‘ask us a question‘ feature.

A reduction in hours or salary or changes to hours or patterns of work is a contractual change – you can’t just impose it without significant risk. The same applies for lay-off or short-time working where there is no existing contractual right to impose these.

In summary, the process that an employer should follow to implement these measures is as follows:

1. Communicate the Company’s position clearly and the urgent need to achieve temporary cost-saving to ensure the ongoing financial viability of the organisation
2. Explain the proposed changes in detail and seek the employee’s agreement, and
3. Record the agreed changes in a letter which is counter-signed by the employee.

If employees will not agree then employers will be at substantial risk of claims for unlawful deduction of wages, breach of contract and/or constructive unfair dismissal if they seek to impose these changes unilaterally. Employers should be mindful that this approach is likely to cause significant employee relations issues and dissatisfaction if only some employees agree to a reduction in pay. Employers should have a clear strategy for what their approach will be if this is the case – for example, they may wish to instead explore a different measure such as redundancies. This may form part of the employer’s communication when explaining the reason for the changes and seeking the employee’s agreement.

Unions: Employers should also be aware that where there is a recognised trade union in respect of any part of the workforce which is being asked to agree to a change to terms and conditions, the recognition agreement or collective agreement will require the employer to consult and/or negotiate with the trade union in the first instance.

Collective consultation: Where 20 or more dismissals are proposed at one establishment in any 90-day period, there are stringent collective consultation rules which apply (regardless of whether the employees have two years’ service or not). All dismissals count towards this total unless the dismissal is “not related to the individual concerned” – therefore dismissals for things such as conduct or capability do not count, but most other dismissals will count. This will include where you are imposing changes to the contract such as reduced hours or pay.

The rules on collective consultation set out a prescriptive and time-consuming process which must be followed, and minimum timescales before any redundancies can take effect. The cost of any claims relating to failure to follow collective consultation requirements are substantial, and specific advice should therefore always be sought before seeking to implement collective redundancies. We will be publishing further guidance on this on the Hub shortly.

If you consider the factors used to determine status you can include the following terms that are more in line with a self-employed relationship:

• The right to provide a substitute of the contractor’s choice in the event the individual is not able to perform the services;
• The ability to work for other businesses as long as doing so will not affect the services to be provided by the contractor;
• The contractor should have sufficient control over how, when and where (if possible) they provide the services;
• A degree of financial risk can be included for unsatisfactory work or failing to complete a project or task

We have terms that cover all of these points that can be tailored to your needs. The consultancy agreement is included in our IR35 toolkit.

The Commission has provided guidance as to measures which Member States can introduce without notification. These include:

• Measures which apply to all businesses within a Member State (for example the furloughing measures introduced by the UK Government)
• Measures providing support direct to consumers
• Measures which are already exempt from the notification requirement (discussed further below).

To respond to the crisis the European Commission has also issued a temporary framework to provide a basis for emergency aid to be notified for approval. The framework is initially in place until 31 December 2020. The Commission continues to keep this under review and has twice widened its scope to allow more types of aid to be notified. The type of measures covered include:

• The provision of guarantees (including guarantees for 100% of loans)
• The provision of loans at low interest rates, at zero interest rates or subordinated to senior debt
• Measures to support liquidity needs or to alleviate difficulties caused by the current crisis
• Measures to recapitalise businesses
• Measures to assist sectors hit particularly hard by the current crisis (eg transport)
• Measures targeted at COVID-19 such as research and development or production of products related to tackling the virus

The Commission has approved a UK Government “umbrella” notification to allow UK public authorities to adopt the measures permitted by the Commission framework. Therefore public authorities in the UK can use the Framework without notifying individual measures or schemes to the Commission.