An employer's guide to lockdown 3

An employer's guide to lockdown 3

Remote working from overseas: sounds idyllic but beware of the legal pitfalls

As we enter a third national lockdown, employers across England will be wondering how to manage their workforce given the latest restrictions. Some employers will be required to close their businesses and many others will have staff impacted by school closures. Businesses will also need to consider their approach where employees are clinically vulnerable or extremely vulnerable to COVID-19. We set out below what all employers need to know about Lockdown 3.

Following the Prime Minister’s announcement of a third national lockdown commencing on 5 January 2021, the government has issued new Guidance outlining the restrictions in EnglandThe snappily named "Health Protection (Coronavirus, Restrictions) (No. 3) and (All Tiers) (England) (Amendment) Regulations 2021 (the Regulations)" came into force on 6 January 2021. 

This note is based on the Guidance available on 5 January 2021 and the Regulations.

Who can go to work?

The Guidance makes it very clear that those who cannot work from home should continue to travel to their workplace. It gives the non-exhaustive examples of people who work in critical national infrastructure, construction or manufacturing. It states explicitly that those employees who work in other people’s homes, such as nannies, cleaners, social care workers and tradespeople, may continue to attend their place of work, provided there is nobody self-isolating at the home in question.

The Regulations provide that individuals may leave their home if it is reasonably necessary for them to do so for the purposes of work, where it is not reasonably possible for the individual to work from home.

What about those employees who can work from home, but either they or their employer prefer them to attend their normal workplace?

The Regulations effectively put all areas of England into Tier 4 and replicate the legal requirement to work from home that was in place for Tier 4 areas in late December 2020. The Regulations provide that working outside the home is only permitted, “where it is not reasonably possible for [the person] to work… from home”. 

The Guidance confirms that individuals “must not leave or be outside of your home except where you have a ‘reasonable excuse’”. A "reasonable excuse" includes attending your place of work but only “where it is unreasonable for you to do your job from home”. Elsewhere in the Guidance, it states that you can attend your workplace “if you cannot reasonably work from home”. 

Neither the Guidance nor the Regulations expands on what is meant by “unreasonable” or “reasonably” in these circumstances, which may leave employers questioning whether the Guidance permits employees to attend their workplace where they cannot work as effectively from home. This may be particularly relevant to employees who now find themselves distracted by children being at home during the working day.

However this latest Guidance omits the word “effectively”, where previous government guidance expressly stated that those “who can work effectively from home should do so” (our emphasis). The government’s COVID-19 Winter Plan, presented to Parliament on 23 November 2020, recognised that there may be “specific reasons why attendance in the workplace may be needed” including mental health issues or concerns. The Winter Plan was, however, drafted before the emergence of the new variant of COVID-19. In view of the increased risk of transmission, it seems such reasons may no longer justify attendance at the workplace for those who can work from home albeit not as effectively as they would in the workplace. 

The Regulations wording, “not reasonably possible”, also suggests a more limited exception to the obligation to stay at home.

How do I manage employees impacted by the school closures?

As a result of the schools closing, many working parents will now find themselves responsible for supervising young children and for overseeing their remote learning and home schooling. 

Fortunately, working parents now have a number of childcare options that were not available to them during the first national lockdown. Nurseries remain open for those under school age, and nannies and childminders are permitted to continue working. Working parents may also be able to form a “childcare bubble” with one other household for the purposes of informal childcare, where they have at least one child under the age of 14. Working parents may also benefit from childcare where they have formed a “support bubble”: for example, working parents could link with a single-person household (such as a grandparent) or a working single-parent could link with another household of any size and share childcare between them. It remains the case, as during the first national lockdown, that vulnerable children and the children of critical workers may continue to attend school although there are unlikely to be sufficient places for all these children.

However, despite the options available, it is likely that a large proportion of working parents will still be without childcare for their school aged children for some or all of the working day. In some cases it may be impossible for such parents to work for a number of reasons. For example, because they are unable to work from home (due to the nature of their role), because of the time taken to carry out home schooling or because it would be unsafe to leave their children unsupervised while they work (due to the age or particular needs of the child). In other cases, perhaps where parents are able to juggle childcare/home schooling between them or with a member of their childcare or support bubbles, they may be able to work part but not all of their contractual hours or they may need to work adjusted hours. 

Are working parents who are unable to work entitled to be paid?

Where an employee is unable to work because of the school closures, they are not entitled to any statutory pay and would need to take unpaid leave or otherwise take annual leave. Given that schools in England are to be closed for at least seven weeks, any annual leave entitlement would quickly be exhausted and, in any event, employers should be mindful of the employee’s wellbeing and the need to reserve some annual leave entitlement for rest and relaxation (rather than home schooling).

Option to furlough employees with caring responsibilities?

Where an employee is unable to work some or all of their normal hours, one option for employers is to agree to furlough the employee under the Coronavirus Job Retention Scheme (CJRS), either on a full-time or part-time (flexible) furlough basis. The government has confirmed here that an employee “is eligible for the grant and can be furloughed, if they are…unable to work because they have caring responsibilities resulting from coronavirus (COVID-19), including employees that need to look after children”. 

The CJRS has been extended until 30 April 2021. Under the CJRS, an employer can claim 80% of an employee’s usual salary for any hours not worked, up to a maximum of £2,500 per month. The employer need only pay employer National Insurance contributions and employer pension contributions. An employer need not have previously submitted a claim under the CJRS to be entitled to claim under it now. However, employers may only claim for employees employed by them on 30 October 2020 (subject to limited exceptions), so the option to furlough will not be available in respect of recent hires.  

Employees do not have a right to be furloughed and employers may have business reasons for deciding not to furlough those unable to work due to childcare issues. However, employers should be mindful that the school closures may impact a higher proportion of female staff and also those parents of children with additional needs so employers should ensure there are good reasons if they do not agree to furlough employees with childcare difficulties. Also, where an employer decides to furlough some employees and not others, it should ensure that its selection is not based on discriminatory reasons.

Are clinically vulnerable and clinically extremely vulnerable employees required to attend work?

Those employees who are defined as “clinically extremely vulnerable” to COVID-19 are instructed not to attend their workplace. Where such employees are unable to work from home, their employer has the option of furloughing them under the CJRS (subject to meeting the eligibility criteria). Alternatively, employees who receive a formal shielding notification may be entitled to statutory sick pay if they cannot work from home.

Although the Guidance acknowledges that employees who are clinically vulnerable to COVID-19 (although not deemed clinically extremely vulnerable) could be at higher risk of severe illness from coronavirus, there is no requirement for such employees not to attend their workplace if they cannot work from home. Employers should ensure that such individuals are considered in their COVID risk assessment and should take necessary precautions to limit the risk of transmission.

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