COVID-19 and the workplace: A new year, new lockdown, new guidance

8 minute read
11 January 2021

Attending work

In an address to the nation on 4 January 2021, the Prime Minister announced the third national lockdown beginning from 00:01 on Wednesday 6 January 2021.

In his address, the Prime Minister said:

"You may only leave home for limited reasons permitted in law, such as to shop for essentials, to work if you absolutely cannot work from home, to exercise, to seek medical assistance such as getting a COVID test, or to escape domestic abuse."

The Prime Minister's message of "work from home if you can" changed to only go into a workplace "if you absolutely cannot work from home", but what does this change of emphasis mean?



Generally

While the Prime Minister's address uses the strong language that individuals can only leave home for work if they 'absolutely cannot work from home', the 'National lockdown: Stay at Home' Government guidance published on 4 January uses tamer language. It provides that people may only leave home for work if they cannot 'reasonably' work from home, or (elsewhere in the guidance) where it is 'unreasonable' for them to do their job from home. This is different from the November 2020 lockdown guidance which stated that 'everyone who can work effectively from home must do so', and similar wording in the recent Tiers guidance.

On 6 January, the majority of the 14 sector guidance documents in the series 'Working Safely during coronavirus' were updated reiterating that attendance at a workplace is permissible if the individual cannot 'reasonably' work from home rather than the higher hurdle suggested by the Prime Minister's language 'absolutely cannot work from home'. While the wording differs slightly depending on which sector guidance document you are reading, the guidance is:

"Currently, you can only leave home for work purposes where it is unreasonable for you to do your job from home. Anyone who can work from home should do so. Anyone else who cannot work from home should go to their place of work."

Clinically extremely vulnerable

The guidance contained in the 'Working Safely during coronavirus' series is different for individuals classed as 'clinically extremely vulnerable'. Those individuals are strongly advised not to attend their workplace during the national lockdown. If clinically extremely vulnerable individuals cannot work from home, then they should not work.

On 7 January 'Guidance on shielding and protecting people who are clinically extremely vulnerable from COVID-19' (Shielding Guidance) was updated.

There are two ways for an individual to be identified as clinically extremely vulnerable:

  1. They have one or more of the conditions expressly listed in the Shielding Guidance; or
  2. Their clinician has added them to the Shielded Patient List.

Employers should consider whether clinically extremely vulnerable individuals can take an alternative role, or change their working patterns temporarily to enable them to work from home. Where that is not possible, employers should not require individuals to attend work, but have a conversation about alternative arrangements including consideration of the use of the Coronavirus Job Retention Scheme (furlough). If not furloughed, individuals who have been formally advised to shield may be eligible for Statutory Sick Pay (SSP) or Employment Support Allowance (ESA). The formal shielding notification received will act as evidence for the employer that they are advised to shield and may be eligible for SSP or ESA.

The above guidance only relates to the clinically extremely vulnerable individual. As for members of their household who are not themselves clinically extremely vulnerable, the general advice instead applies, being continue to attend the workplace only if they are unable to reasonably work from home. Nevertheless, employers should ensure when carrying out a workplace risk assessment that consideration is given to the impact on those staff living with clinically extremely vulnerable individuals as well as those at higher risk due to factors such as age, ethnicity or health conditions outside the clinically extremely vulnerable classification.

CJRS guidance update

On 17 December 2020, the Government announced the further one month extension to the Coronavirus Job Retention Scheme (CJRS). The CJRS is now due to close at the end of April 2021. Under the scheme, the Government will continue to pay 80% of the salary of employees who are furloughed for hours not worked, until the end of April. Employers are required to pay wages, National Insurance Contributions (NICs) and pensions for hours worked and only NICs and pensions for hours not worked. The eligibility criteria for the UK-wide scheme remains unchanged.

Following the announcement of the third national lockdown and consequent closure of schools, the guidance 'Check which employees you can put on furlough to use the Coronavirus Job Retention Scheme' has been updated. Previously, it simply stated that employees that have caring responsibilities resulting from coronavirus, including employees that need to look after children were eligible to be furloughed (subject to the general eligibility criteria). On 5 January 2021, that guidance has been updated to clarify that employees with caring responsibilities "such as caring for children who are at home as a result of school and childcare facilities closing, or caring for a vulnerable individual in their household" are eligible to be furloughed.

For more detail on the CJRS see 'COVID-19: Back to the future: CJRS Extension Q&A'.

The Chancellor also announced on 17 December 2020 that the Budget will be on 3 March 2021 and "will set out the next phase of the plan to tackle the virus and protect jobs". The March Budget will have particular importance for employers who may need to begin to contemplate large-scale redundancies in the run up to the closure of the CJRS.

Employers should note that:

  • Where the employer is proposing to dismiss 100 or more employees at one establishment within a 90-day period, consultation must begin at least 45 days before the first dismissal takes effect.
  • Where the employer is proposing to dismiss between 20 and 99 employees in a 90-day period, consultation must begin at least 30 days before the first dismissal takes effect.
  • Employers cannot claim under the CJRS for any days on or after 1 December 2020 during which the furloughed employee is/was serving a contractual or statutory notice period for the employer. This includes those working under notice of redundancy or dismissal for any reason and those serving notice of retirement or resignation.

See our article 'Redundancy: the new normal?' looking at the key employment issues both old and new that employers face when conducting a redundancy exercise.


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