The elementary principle of the Health Protection (Coronavirus Restrictions) (England) (No.4) Regulations 2020 is that “no person may leave or be outside the place they are living without reasonable excuse”. You can then find a long list of allowances which form a “reasonable excuse”.
One of these allowances relates to work and allows someone to leave their home for the purposes of work if it is “not reasonably possible for [them] to work from home”.
It is important to mention here that this phrasing of the guidance this time around is very alike to that covered in the regulations in place for the original lockdown in March 2020, and consequently eradicates some the allowances that we got used to from the last few months.
Should my employees return to working from home during this new lockdown?
The main concern for most employers will be whether the same rules apply for their workplace and whether their employees should work from home again. Best practice suggests that the business is to look at returning to the stance they took during the first lockdown. If business offices were shut during Lockdown I and employees were able to work from home – even if possibly not as efficiently as they or their employers may have wished – that is likely to be the safest and most appropriate method to take now.
Can I force my employees to work from the office?
Whilst you cannot force employees to work from the office, many businesses have learnt from the first lockdown and put safety measures in place now to ensure that the health and safety of their staff remains to be a priority.
It would be ill-advised for us to say employers can try to force or make mandatory than employees physically attend the workplace over the restriction period if they could work from home during the first lockdown.
Gatherings which are rationally vital for work reasons are also legitimate reason to work from the office, which might include client meetings which can only be carried out face-to-face. There is also an exception whereby someone can leave their home “to avoid injury or illness”. While not specifically stated, this could theoretically give employers capacity to permit employees whose mental health is genuinely suffering while working at home, to continue to attend their workplace if it will help avoid further health issues. Employers need to ensure they can justify their reasoning behind WFH or working from the office.
It may be that additional guidance is delivered over the coming days which gives employers room for greater leeway. At this stage, though, and bearing in mind that a breach of this legislation could bring criminal sanctions, the securest and most accountable approach to last Thursday’s lockdown for many employers is most like to be to reverse any return to the office, which they have been practising in recent months. Remember, this is only for 4 weeks, so this does not have to mean a permanent protocol.
Update on the extended furlough scheme
On 2nd of November 2020, the government published a document containing guidance on financial for jobs and businesses. We have also written a blog on the new Job Support Scheme made available for employers who are struggling. These updates corroborate that the scheme is being extended until 2 December (when the lockdown restrictions are due to finish) and that claims can be made starting this week.
This renewed guidance also sheds more light on the entitlement conditions for employees. Specifically, it is confirmed that employees who were employed as of 23 September (i.e. the qualifying date for the original Job Support Scheme) and notified to HMRC by Real Time Information on or before that date, but who have then been made redundant, can be rehired and furloughed under the protracted scheme. Nevertheless, as before, there is no obligation on employers to rehire any employees in this situation.
The government has also confirmed that it is increasing the support being given to the self-employed for November.
Guidance on shielding
The government recently also updated its guidance on shielding, which applies to anyone who has been recognised as clinically vulnerable with underlying health conditions in the previously.
From an employment law point of view, it is advisable that anyone that falls into this group are advised not to attend work from the office, for the next few weeks. If the employees are unable to work from home, then they can be placed on furlough under the new scheme if they meet the criteria.
The guidance only concerns to individuals who are clinically exceptionally vulnerable. It settles that those who live with someone in this group are not instructed to follow this guidance and should continue to come into work if they cannot work from home.
JMR Solicitors Office is open during Lockdown 2
JMR Solicitors are on hand to help with any legal concerns, during this second lockdown. We have a wealth of experience and have had a contingency plan should another lockdown be announced, which has left us in a better position than last time.
If you require further information related to the second lockdown, what it means for your business or your employees, then you can JMR Solicitors on 0161 491 3933 or email firstname.lastname@example.org