Second national lockdown: what employers need to know

Implications for employers - business closures, working from home and vulnerable persons: 5 November 2020

The government has announced new national restrictions that will apply from 5 November 2020 and we understand will end on 2 December 2020. Initial guidance on the new restrictions was published on 31 October 2020 (the Guidance). This was followed by the Health Protection (Coronavirus, Restrictions) (England) (No. 4) Regulations 2020 (the Regulations), which came into force on 5 November 2020, along with further guidance for those people who are extremely clinically vulnerable to COVID-19 (the EVP Guidance). 

We set out below what is known so far about the impact of these new lockdown restrictions on employers and their workforce.

The Chancellor has also announced that the Coronavirus Job Retention Scheme (CJRS) will now be extended until the end of March 2021. The Job Support Scheme has been postponed and the Job Retention Bonus will not now be paid in February 2021. Please see our separate article giving details of these changes here.

Business closures

The government has ordered certain businesses and venues to close, including all non-essential retail, indoor and outdoor leisure facilities, entertainment venues, hair, beauty and nail salons, and hospitality venues (other than for takeaway and delivery services). The schedule to the Regulations sets out a full list of the businesses that are required to close and those that can remain open.

Working from home: significant changes

The central provision of the Regulations is that people must stay at home and therefore no one may leave or be outside of the place where they are living without reasonable excuse. One of the circumstances in which a person has a reasonable excuse includes where it is reasonably necessary to leave home for the purposes of work. However, importantly, this only applies where it is not reasonably possible for that person to work from home. This is essentially the same test that applied in the first lockdown from March 2020 onwards and therefore marks a significant tightening of restrictions for employers. It means that employers are going to have to apply a much stricter test when asking or allowing staff to attend work or otherwise leave their home for work purposes.

The Guidance says in one section “everyone who can work effectively from home must do so.” This gave some hope that employers may have some flexibility to allow staff to work in a COVID-secure environment where they considered they could be more effective. However, other parts of the Guidance and the wording of the Regulations do not reflect this. Another section of the Guidance says “You can leave home for work purposes… where you cannot do this from home.”

The Guidance gives those who work in “critical national infrastructure, construction or manufacturing” and “essential services, including education settings” as examples of those exempted from the requirement to work from home. In our view, this suggests that only those in highly practical roles which cannot be performed at home may continue to work outside their home. It is, therefore, likely that the majority of office workers will be required to work from home for most, if not all, of their working time.

The Guidance confirms that those whose jobs involve working in other people’s homes, such as nannies and cleaners, may continue to go to work.

The Guidance and the Regulations confirm that hotels and other similar accommodation may remain open to provide accommodation for certain limited purposes, including for any person who needs accommodation for the purposes of their work. Employees could only make use of this though if leaving the employee’s home was reasonably necessary for work purposes AND it was not reasonably possible to work from home.

Protecting those more at risk from COVID-19 – shielding again?

The Guidance identifies three categories of employees who are considered to be at higher risk of severe illness from COVID-19:

• people over the age of 60
• those who are “clinically vulnerable” to COVID-19 (including anyone with an underlying health condition who is instructed to get a flu jab each year on medical grounds, certain other medical conditions and also pregnant women) and
• those who are “clinically extremely vulnerable” to COVID-19 (people with specific, serious health conditions).

The EVP Guidance states that those who are clinically extremely vulnerable are strongly advised to work from home. If they cannot work from home, they should not attend work during this second lockdown period. If this is the case, the EVP Guidance says that they may be eligible for Statutory Sick Pay, Employment Support Allowance or Universal Credit.Employees in this category may be eligible to be put on furlough, if they were on payroll on or before 30 October 2020.

For people that live with a clinically extremely vulnerable person, the EVP Guidance says that they can still attend work if they cannot work from home, in line with others.

Those over age 60 and those who are clinically vulnerable to COVID-19 are advised simply to be especially careful to follow the rules and to minimise their contacts with others. However, the Guidance does not address the situation where such a person is unable to work from home, which suggests that such individuals should continue to go to work providing their workplace is COVID-secure. The Guidance emphasises the importance of employers following COVID-secure guidelines and requires that employers give extra consideration to those people at higher risk, which may require putting in place additional precautions.