What should businesses do now?
Many will have worked collaboratively with their suppliers and customers to deal with the immediate public health crisis. This will have meant offering flexibility as to contractual arrangements, whether in delivery dates, volumes of goods or services supplied, or even in the specification of what has been delivered.
If this is the case, it is important that businesses now do their legal housekeeping and make sure they have a proper record of what has been agreed. Unfortunately, our experience shows that many legal disputes arise out of amendments to contracts, typically where the parties to the contract each have a different view about what exactly they agreed to change.
We would therefore advise businesses to review any amendments that they might have agreed either verbally, by email, or otherwise, and consider whether they need to be captured in a more formal way which will make clear exactly what has been agreed to be varied, and (where appropriate) how long that variation will remain in force.
It’s also important to remember that some contracts contain provisions that set out specific requirements about how amendments are to be made. For example, they might require that amendments are made in writing (rather than verbally). These “No Oral Modification” clauses are commonly found in commercial contracts, and the courts have recently shown that they are willing to enforce them.
Failing to deal with amendments in accordance with contractual requirements could therefore have a serious impact on businesses as they recover from the disruption caused by the lockdown. If they end up in dispute with a customer or supplier, a business could find that the contract has not actually been amended in the way that they think – potentially leading to legal costs and liabilities at the worst possible time.
Related FAQs
The Flexible Furlough Scheme, ‘FFS’ an unfortunate acronym, allows employees to work for some of the week and be furloughed for the rest.
The amount an insurer charges for providing cover is a critical aspect of the underwriting process. The premium must be sufficient to cover expected claims but must also take into account the possibility that the insurer will have to access its capital reserve –it is risk assessment based and the greater the risk, the higher the premium. Historically, insurers of high-rise buildings would have only had to prepare for a loss caused by damage to just a few flats within a building. That is because the design and construction of that building, with the right materials and fire safety provisions in place, should have limited the spread of fire and allowed the damage to be contained –or at least make this an extremely low risk. Now we know that many buildings have been designed, built and signed off in a regulatory system that an independent Government review has found was not fit for purpose. Premiums will reduce overtime but will be dependent upon the perceived level of risk reducing as the regulatory regime, BSA and BSR become more established.
It is absolutely critical to creating a safe workplace and to making workers feel secure.
This could include floor markings every 2m (as we’ve seen in grocery stores), stopping or limiting/staggering access to communal or common areas such as toilets and kitchens, rearranging workstations to maintain a 2 metre distance or, where this is not possible (for example in manufacturing facilities or production lines), erecting physical barriers and avoiding face to face working, encouraging the use of stairs and discouraging lift-use, designing a one-way system for entry and exit and looking at aircon/heating systems to see if any modifications are possible to prevent the spread of airborne particles. If you can increase ventilation in your workplace, it will help reduce risk.
The government has published detailed social distancing guidance for workplaces across sectors including manufacturing, retail, offices, construction and transport; it has also promised to continue to add to this.
The Home Office has provided useful guidance on how to carry out a compliant Right to Work check using the temporary adjustments in place for Covid-19. In summary:
- You will need to ask the job applicant to send you digital copies of their original documents, for example by scan, photo or mobile app.
- Hold a video call with the job applicant and ask them to show their original documents on camera so you can check them against the digital copies you have already received.
- On the date you made the check, record that you have done this by using the following wording “adjusted check undertaken on [insert date] due to Covid-19”. Evidence of right to work checks still need to be held securely either in paper or electronic format.
- You can use the online RTW checking service where the job applicant has Biometric Residence Permit or pre-settled or settled status under the EU Settlement Scheme. You should do this whilst on the video call with the applicant/employee, and you must first obtain their permission to view their details on this scheme.
The current situation with the coronavirus pandemic has presented obvious challenges to the effective and fair operation of the Court of Protection (COP). Remote access to the COP has therefore become a necessity to ensure that hearings continue to provide proper access to justice. All parties involved in such cases have a responsibility in achieving this primary aim.