Greetings to all following a week absorbing the implications of what a second lockdown might look like and how it will affect us all.
Following the Prime Minister’s announcement of a new national lockdown for England, the UK Parliament has passed formal regulations implementing the lockdown which came into effect at midnight Wednesday.
The new regulations
The new regulations implement a similar regime to the March 2020 lockdown. The key points are:
- No-one may leave home without “reasonable excuse”. The definition of reasonable excuse includes working, but only where “it is reasonably necessary to leave home for the purposes of work, where it is not reasonably possible to work from home”.
- With noting though is the current version of the government’s online guidance, which explains this as follows: “To help contain the virus, everyone who can work effectively from home must do so. Where people cannot do so – including, but not limited to, people who work in critical national infrastructure, construction, or manufacturing – they should continue to travel to their workplace.”
- The regulations also prohibit a gathering of two or more people unless an exception applies. One exception applies where the gathering is reasonably necessary for work purposes.
- Businesses organising gatherings must take preventative steps, including a risk assessment, and “all reasonable measures to limit the risk of transmission of the coronavirus” having regard to relevant government guidance.
- 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.
- The Guidance confirms that those whose jobs involve working in other people’s homes, such as cleaners, may continue to go to work.
- Office working should under these rules, only be permitted where homeworking is not feasible
- Breach of the regulations is a criminal matter, with both individuals and firms potentially liable.
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 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 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.
This leaves businesses at where they were in the earlier lockdown in that any staff should be instructed to remain at home as the default option. This 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.
Coronavirus Job Retention Scheme extended
Following the recent government announcement, the Guidance confirms that this will now remain open, with furloughed employees receiving 80% of their salary up to a maximum of £2,500 per month. Employers will only be required to pay National Insurance Contributions (NICs) and pension contributions in respect of any employees furloughed in November, making the CJRS more generous than in October (when employers were also required to contribute 20% of the employee’s salary). The Guidance also confirms that employers will retain the option of flexibly furloughing employees.
Conclusion
Whilst we expect this guidance to be updated by government over time, the regulations once they become law, will take precedence over the online guidance and should be the starting point for any employer wanting clarification.
How businesses should come to an assessment under the above will depend on a variety of factors, any individual factors for employees, any special factors of demand around work etc..
If a business had shut down in the first lockdown, but then had serious issues, might highlight that as a relevant factor in deciding to remain open for some categories of employees for this lockdown.
Businesses struggling to put IT solutions for home working in place might find it easier to remain closed if they have worked on their processes.
The key takeaway is that hard and objective evidence based on robust risk assessments, having consulted with employees, will be key.
Please drop us an e mail or call if you need any further details and stay safe and well.
Lucy and Roger
