Would you suggest using a different name for a MHFA, maybe a MH champion, to encompass the wider pro-active role?

Many planning permissions contain a condition restricting the hours within which a developer can carry out construction work or are subject to an approved construction management plan setting out the permitted construction hours.

The Business and Planning Act 2020 entered the statute books on 22 July 2020. Section 16 of the Act incorporates a new S.74B into the Town and Country Planning Act 1990. The effect is that any condition/approved document which limits construction hours on a site could be amended through an application to the local planning authority. The application to the local planning authority must set out the date on which the proposed extension to construction hours shall cease (such date being no later than 1 April 2021, after which the original conditions over construction hours will resume). The local planning authority must determine the application within 14 days (beginning with the day after the application was submitted) otherwise there is deemed approval.

New guidance has been published alongside the Act and is available here

The duty is to inform and consult appropriate representatives of the “affected employees”.

Note that the term “affected employees” means those who may be “affected by the proposed dismissals or who may be affected by measures taken in connection with those dismissals”. The term extends beyond those immediately at risk of dismissal to include those affected by measures associated with the redundancies.

“Appropriate representatives” can be:

• The Trade Union (if recognised)
• (For any roles not covered by collective recognition) any existing standing body of elected or appointed employee representatives (if already in place)
• Employee representatives, who are elected specifically for redundancy consultation

In the event that the worst happens and contractor insolvency occurs, there are a number of steps which the employer should take immediately:

• Confirm that insolvency has actually occurred and the type of insolvency (for example liquidation or adjudication) – actions taken based on rumours can have adverse consequences
• Secure the site and carry out an audit of the plant, equipment and materials present – this may extend to changing the locks on site in order to prevent overzealous contractors and sub-contractors seeking to return and take what they see as their possessions. The building contract may contain a provision that these are the employer’s property, but they can be difficult to recover if they are not within the employer’s possession – possession is 9/10ths of the law!
• Ensure that there are adequate insurance and health and safety arrangements in place for the site – these would usually be dealt with by the contractor and therefore may no longer be in place, so alternative arrangements may be required
• Ensure that any further payments to the contractor are stopped pending a more detailed review
• Consider whether any off-site materials have already been paid for and can be secured. This can however be difficult in practice where the materials are not physically within the employer’s possession

In addition, there are also a number of further actions which the employer should consider in the slightly longer term:

• Investigate the options available and ascertain the cost of completing the works to assist in deciding how best to proceed
• Consider whether termination of the contractor’s employment under the building contract is required, and if so take the necessary steps in accordance with the building contract
• Consider whether there are any bonds or guarantees in place upon which the employer can rely, and if so assess their terms as to whether and how to make a claim
• Make arrangements to complete the works – as a general rule of thumb the cost of completing the works may increase by around 30% if it is necessary to get a replacement contractor
• Consider whether direct payment to subcontractors is possible or desirable
• Although we would say this(!) we would strongly recommend taking legal advice, as insolvency and its implications are complex and it is easy to inadvertently fall foul of the various different requirements

Hopefully, further guidance will provide additional clarification on this, but it is difficult to see how a charity whose operations have been significantly curtailed because of the Covid-19 restrictions, cannot furlough employees and access the scheme, in particular where they have several different income streams. For example if a charity’s retail or fundraising operations have been significantly curtailed due to the restrictions, then it would appear unfair for it not to able to rely on the furlough scheme to assist in the funding of the employment costs associated with this part of the charity.

However, it might be prudent, where there are services that are publicly funded and employees working within those services cannot undertake their normal work, to consider if they can do different roles to work on Covid-19 activities. If there is no such work available then the guidance does appear to allow the furloughing of employees and such organisations to access the scheme.

In our experience, the funding streams and work undertaken by the organisations that could fall into the third category identified above can be exceptionally diverse and we would strongly recommend that you take advice before making such decisions about furloughing employees.

If a business has been provided with a loan from 23 March on commercial terms, providing the borrower meets the CBILS eligibility criteria, lenders have been asked to bring these facilities onto CBILS wherever possible (e.g. where the lender is accredited to offer the same facility through CBILS) and changes retrospectively applied as necessary. Please contact us if this applies to you and we can review facilities and advise upon the potential changes that may be made retrospectively to the benefit of the business.