Who is liable to pay the fine for not wearing a face mask at work, the employer or the employee?

The Government announced on 22 June 2020 that it would be making provisions to enable planning permissions that have lapsed since 23 March 2020, and those that are due to lapse before the end of 2020, to be automatically extended.
The Government’s detailed proposals are set out in section 17 of the Business and Planning Act 2020, which entered the statute books on 22 July 2020. If a relevant planning permission is subject to a condition which requires the development to be begun no later than between 19 August 2020 (when section 17 of the Business and Planning Act 2020 will come into effect) and 31 December 2020, the condition is automatically deemed to instead provide that the development must be begun no later than 1 May 2021.

The Act also makes provision for any conditions requiring development to be begun between 23 March 2020 and 19 August 20202 to be extended to 1 May 2021, although this is not automatic. Where the provisions have such retrospective effect, an application is required to the local planning authority. The local planning authority are only able to grant approval, however, if they are satisfied that any EIA and habitats assessments continue to be valid. Deemed approval provisions will apply if the local planning authority do not determine any application within 28 days. The local planning authority are not able to approve such applications after 31 December 2020 so applications should be made in good time in advance of this date. There is the possibility of an appeal against the local planning authority’s decision but notice of the appeal must be submitted before 31 December 2020.

The Act includes similar provisions in relation to both detailed and outline planning permissions.

With the exception of the Covid-19 Corporate Financing Facility (see below), there was initially little dedicated financial assistance for medium-sized and larger businesses affected by the coronavirus outbreak (the so-called “stranded middle”); however, from 20 April 2020 such businesses (with a turnover above £45 million) have been able to access finance via the Coronavirus Large Business Interruption Loan Scheme (“CLBILS“).

CLBILS operates in a similar manner to CBILS except that a lender can provide:

• up to £25 million to businesses with turnover from £45 million up to £250 million; and
• up to £50 million to businesses for those with a turnover of over £250 million.

Finance is available in the form of:

• term loans
• revolving credit facilities (including overdrafts)
• invoice finance and
• asset finance,

in each case available on repayment terms of up to three years.

Several changes to CLBILS took effect from 26 May 2020. The maximum amount available through CLBILS to a borrower and its group increased from £50m to £200m. Term loans and revolving credit facilities over £50m will be offered by CLBILS lenders which have secured additional accreditation. The maximum size for invoice finance and asset finance facilities remains at £50m. Companies borrowing more than £50m through CLBILS will be subject to further restrictions on dividend payments, senior pay and share buy-backs during the period of the loan. Further information on the most recent changes, including new provisions on seniority of CLBILS facilities, can be found on the CLBILS page on the British Business Bank website. There is also an in-depth FAQs section for businesses, which has the full details of the changes to the scheme.

Unlike CBILS, the UK government will not make payments to cover the interest and any lender-levied fees in the first 12 months of any facility so these larger businesses will not benefit from the no upfront costs and lower initial repayments that smaller businesses eligible for CBILS benefit from. The other key provisions of CLBILS, such as the eligibility criteria, the 80% government-backed guarantee and security, are similar to those of CBILS.

Eligibility is similar to CBILS and businesses must:

• Be UK-based in its business activity
• Have an annual turnover of more than £45 million
• Have a borrowing proposal which the lender would consider viable, were it not for the current pandemic, and for which the lender believes the provision of finance will enable the business to trade out of any short-term to medium-term difficulty
• Self-certify that it has been adversely impacted by the coronavirus (COVID-19)
• Not have received a facility under the Bank of England’s Covid Corporate Financing Facility.

Businesses from any sector can apply, except the following:

• Credit institutions (falling within the remit of the Bank Recovery and Resolution Directive), insurers and reinsurers (but not insurance brokers)
• Building Societies
• Public-sector bodies
• Further-education establishments, if they are grant-funded
• State-funded primary and secondary schools

All lending decisions remain fully delegated to the accredited lenders.

Employers have a statutory right to require employees to take annual leave at their direction, subject to providing staff with notice equal to at least double the length of the leave that you are directing them to take (e.g. 10 days’ notice for five days leave). However, this measure is not likely to achieve any urgent cost savings or alleviate immediate cash-flow pressure as holidays would need to be paid.

Clearly, annual leave can be taken on furlough so you could have staff on furlough and annual leave.

The definition of a relevant establishment is a question of fact for an Employment Tribunal. Guidance from case law says that ‘establishment’ should be interpreted very broadly (so as to avoid employers escaping the need to collectively consult), and may consist of:

• A distinct entity
• With a certain degree of permanence and stability
• Which is assigned to perform one or more tasks
• Which has a workforce, technical means and a certain organisational structure to allow it to do so

However, there is no need for it to have the following:

• Legal, economic, financial, administrative or technological autonomy
• A management which can independently effect collective redundancies
• Geographical separation from the other units and facilities of the undertaking

The courts are seeking to adapt to our new circumstances and have urgently been looking to introduce new ways of working. The courts have been testing out different ways of holding court hearings. The advice is changing almost daily and some courts have been developing local practices. Going forward the court, the parties and their representatives will need to be more proactive about all forthcoming hearings.

Everyone involved in the case is to consider as far ahead as possible how future hearings should best be undertaken and work collaboratively. It will normally be possible for all short, interlocutory, or non-witness, applications to be heard remotely. Some witness cases will also be suitable for remote hearings. The parties just need to ensure that everyone involved can use the technology suggested.

The courts have been looking at and held remote hearings using, non-exhaustively, BT conference call, Skype for Business, court video link, BT MeetMe, Zoom and ordinary telephone call. Bundles for the hearing will be prepared and circulated electronically.

If the hearing cannot be held remotely because the parties do not have the requisite technology or the length of the hearing combined with the number of parties or overseas parties, representatives and/or witnesses make it undesirable to go ahead with a hearing in court at the current time, then it may be that the case will need to be adjourned. We are hearing of trials being adjourned and that they will not be re-listed before at least September.

HMCTS has advised that several priority courts will remain open during the coronavirus pandemic to make sure the justice system continues to operate effectively. It publishes a daily operational update from the courts and they aim to update it by 9am. The link is https://www.gov.uk/guidance/hmcts-daily-operational-summary-on-courts-and-tribunals-during-coronavirus-covid-19-outbreak.

Also, the courts have circulated a civil listing priority list with Priority 1 listing work which must be done and which includes injunctions, any applications in cases listed for trial in the next three months, any applications where there is a substantial hearing listed in the next month and all Multi Track hearings where parties agree that it is urgent.

In the Priority 2 list, which consists of hearings which could be done, are enforcement of trading contracts, trial involving the survival of a business or the insolvency of an individual, small and fast track trials where the parties say they are urgent, and appeal in these kinds of cases.

Similarly, in arbitration proceedings, the parties and arbitrators are being encouraged to utilise technology to make sure that hearings take place. We have heard of Zoom being used very successfully for multi-party proceedings.