Coronavirus - Implications of new national restrictions for employers in England

• United Kingdom

• Employment law

06-11-2020

On 31 October the Prime Minister announced that new “time-limited” national restrictions would apply in England until early December, to replace the previous three- tiered approach. The aim of the restrictions, which are being referred to by many as a “second lockdown”, is to slow the spread of COVID-19, thus easing NHS capacity and ensuring that the health system is not overwhelmed during the winter months.

Introduction

The Health Protection (Coronavirus, Restrictions) (England) (No. 4) Regulations 2020 (the Regulations) were approved by Parliament on 4 November and came into force with effect from 00.01 on 5 November. The Regulations will remain in force until 2 December, when it is anticipated that there will be a return to a more regional approach. Of course the Government has also recently announced financial support for employers’ wage costs via an extension to the Job Retention Scheme from 1 November, which we covered in our recent Q & A alert. (Note: it has now been confirmed this support will be in place across the UK until the end of March 2021, subject to a review in January).

New National Restrictions Guidance (the Guidance) has been published, which seeks to clarify how these Regulations will achieve the following three key measures, namely, that:

• 1. Individuals should stay at home, except for specific purposes.
• 2. Individuals should avoid meeting people they do not live with, except for specific purposes.
• 3. Certain businesses and venues are required to close.

Corporate, and potentially personal, criminal liability attaches to certain of the new restrictions, so employers should ensure that they take careful note of the Regulations.

How will the requirement to “stay at home” affect employers and employees?

The basic premise of the Regulations is that no individual should leave or be outside their household without reasonable excuse. What will constitute such a reasonable excuse is set out in a list of exceptions (Reg 6).

As widely reported, these exceptions include being able to leave home to buy items, e.g. food and medicine, at those shops which remain open, or to take part in exercise outdoors. From an employment perspective, however, the most relevant exceptions are where it is “reasonably necessary” for an individual to leave their home:

• for work purposes where it is not “reasonably possible” for them to work from home
• for education and training purposes or
• to fulfil a legal obligation e.g. attending an employment tribunal as a witness

Of course, many key and front-line workers, e.g. those working in health or essential services, have been unable to work from home during this pandemic. As for other employees, e.g. those who are office-based workers, employers will have already deliberated upon, at some length, which of their staff are able to work effectively from home and who is required to attend at the work premises. However, it seems that the test currently applicable, namely whether it is not “reasonably possible” for an employee to work from home, indicates that a higher threshold must be met before an employer can comfortably permit an employee to attend work.

The underlying message is that the Regulations amount to a tightening of current restrictions, with an onus on the employee to be able to justify the need to travel to attend work (backed by potential criminal sanctions). Also, employers must have a robust process for considering such requests. It appears unlikely that self-certification by employees (e.g. using a “tick box” approach) will be enough. Employers should therefore review and update any pre-existing request schemes, encouraging employees to reconsider the new legal requirements. Employers may potentially also wish to adopt a more rigorous approach, such as reviewing and/or approving requests on a case-by-case basis.

Neither the Regulations nor the Guidance provide any indication of when it might be considered not “reasonably possible” for the employee to work from home. Ultimately, if a prosecution is brought alleging a breach of these provisions, the question of whether it was “reasonably possible” will be an issue for a court to decide and employers can expect that their contract terms, policies and procedures, the exercise of managerial discretion and, in this context, their approach to health and safety issues could be scrutinised. This scrutiny could come from the police, HSE or local authorities but organisations will also be mindful of their reputation with their employees and the wider public. However, where employers have considered, consulted about and documented their approach to providing a COVID-safe working environment, they should be better placed to withstand any such scrutiny, assuming of course that they have satisfied themselves that the new threshold test is met. This means that they must have determined that it is not reasonably possible for the work to be done from home and ensure they have met the COVID-safe guidelines applicable to their business.

Employers will also need to be mindful of their obligations to not knowingly require or encourage someone who is being required to self-isolate to leave their designated area of self-isolation by coming into the workplace in accordance with the Health Protection (Coronavirus, Restrictions) (Self-Isolation) (England) Regulations 2020, given that breach of these Regulations also poses a risk of corporate, and possibly personal, criminal liability.

Which employers will be required to close or will be restricted?

The Regulations distinguish between essentially three categories of business or services (i.e. potential employers): those which are restricted; those which must close; and those that are permitted to stay open. However, it is important to note that both those employers which are restricted, and those which must close, are referred to as “restricted businesses” within the Regulations, even though the repercussions for them are slightly different. (Regs 15, 16 and 17, plus Schedule).

In fact, there are other businesses which are permitted to remain open, other than those which are specified as such in the Schedule to the Regulations. This includes: (i) those offering goods for sale or hire in a shop, not listed in the Regulations, who may remain open for deliver or collection of pre-ordered goods (Reg. 18); and (ii) other businesses which are not listed in the Schedule so are therefore not required to close because they are not “restricted businesses”. Even so, these businesses are still affected by the Regulations because an employer will need to consider whether staff are permitted to attend work under the Regulations.

The exact details of which type of employers fall within which categories, is beyond the scope of this alert. However, as a starting point, new “Closing certain businesses and venues in England” guidance provides a useful overview of the restrictions that certain businesses and venues in England will be required to follow from 5 November, differentiating between the different types of business. It confirms, for example, that businesses providing services (rather than goods) - such as accountants, solicitors, and estate agents – generally are not required to close. However these businesses should still take steps to ensure they are COVID-19 secure including, where possible, providing services remotely or virtually.

Note that this guidance also states “Government cannot provide comments on individual cases of whether or not a business is permitted to open. It is for each business to assess whether they are a business required to close having considered the guidance and Regulations”. We recommend, therefore, that employers should urgently check whether their business or service is affected, preferably by examination of the Regulations. This is because the Regulations set out the various categories of business in significantly more detail and also place an obligation on the “person responsible” for carrying on a “restricted business” (which for these purposes includes the owner, proprietor and manager of that business), or providing a restricted service, to cease carrying on that business or providing that service (Reg 16). For further information please speak to your usual Eversheds Sutherland contact.

Employers may be interested to note that, although the hospitality sector will be restricted to providing services via delivery, click and collect, drive-through and takeaway, where there is no other practical alternative for workers, workplace canteens are exempted. The majority of public services will also continue to operate.

Which employees are permitted to continue to go to work and/or travel for work purposes?

As mentioned, the aim is that all employees who can work effectively from home must do so. Where that is not possible (and according to the Guidance this includes, but is not limited to, people working in critical national infrastructure, construction, or manufacturing) employees should continue to travel to their workplace. Public sector employees working in essential services, including childcare or education, should also continue going into work.

The Guidance states that individuals living in England cannot travel overseas or within the UK unless this is for work, education or other legally permitted reasons. Even then, people should be seeking to reduce the number of journeys they make. Where individuals do need to use public transport, e.g. to travel to work, they are advised to follow the safer travel guidance, which includes rules on wearing face coverings and advice on car sharing.

The Guidance also states that overnight stays away from home (elsewhere in the UK or abroad) will not be permitted, unless one of the exceptions applies, such as where accommodation is required for work purposes.

What about those employees who are particularly vulnerable?

Health conditions are just one of the aspects that should be addressed in workplace risk assessments, whether work is undertaken from home or on-site. Such assessments should ensure that measures to address risk areas are effectively identified, taking account of individual circumstances and supporting those who are at higher risk.

There are effectively three categories of employee: (i) clinically vulnerable; (ii) clinically extremely vulnerable; and (iii) others – everyone else.

Those who are “over 60 or clinically vulnerable” are identified in the Guidance as being “at higher risk of severe illness” from COVID-19. Clinically vulnerable people are those who are aged 70 or over (regardless of medical conditions), have a specific underlying health condition such as chronic (long-term) mild to moderate respiratory diseases, diabetes or who are seriously overweight (a body mass index of 40 or above) or who are pregnant.

Those that are “clinically extremely vulnerable”, are identified in separate, recently updated, Guidance on shielding and protecting people who are clinically extremely vulnerable from COVID-19 as being “at very high risk of severe illness” from COVID-19. That group includes those who have specific cancers or certain severe respiratory conditions or have been notified by the NHS that they have been added to the shielded patients list. It should be noted that the NHS shielded patient list has recently been expanded to include individuals with a wider range of conditions, including those with chronic kidney disease (stage 5) and those undergoing dialysis, as well as adults with Down’s Syndrome.

Although everyone must currently work from home unless it is not reasonably possible for them to do so, this particular government guidance states that, if those that fall into the category of clinically extremely vulnerable cannot work from home, “they are advised not to go to work”. From an employment perspective, this therefore has the effect of reintroducing shielding measures for the clinically extremely vulnerable.

Are employees who are clinically extremely vulnerable and unable to work entitled to pay?

Those who are clinically extremely vulnerable, who are unable to work from home and therefore unable to work, “may be eligible for Statutory Sick Pay (SSP) or Employment Support Allowance (ESA)”. Employer’s absence terms and policies may also provide additional pay/benefits.

In addition, subject to employment law requirements, it should be possible for employers to furlough clinically extremely vulnerable employees who were on the payroll before 30 October 2020 and claim under the extended Job Retention Scheme (although we currently await the detailed rules of the extended Scheme).

What are the penalties for failing to comply with the Regulations?

Environmental health/trading standards officers and the police have been tasked with monitoring compliance with the Regulations. An offence will be committed if, without reasonable excuse, the Regulations are breached: in respect of leaving home; participating in, organising or facilitating gatherings; or business closures or restrictions.

As mentioned, examples of reasonable excuse in the Regulations include the specified exceptions, such as the need to leave home for the purpose of work where it is not reasonably possible to work from home, to provide care or assistance to a vulnerable person, and to access critical public services. However, without any guidelines issued by the Government on what otherwise constitutes a reasonable excuse, it currently remains unclear what type of circumstances, outside the scope of the various exemptions, this concept could cover.

An offence under the Regulations is punishable by fine. It should be noted, however, that it is not only individuals that may commit an offence, but also companies and their officers. In the event of an offence by a company, if that offence is committed with the consent or connivance of a director, manager, secretary or other similar officer, or attributable to any neglect by any such officer, the officer as well as the company may be liable to be prosecuted.

The Regulations provide for fixed penalty notices to be issued (i.e. a notice that allows a person to discharge their liability to criminal conviction on payment of a sum within 28 days of the date of the notice). The amount of the fixed penalty notice is £200 for a first offence, reduced to £100 if paid within 14 days. If a person has already received a fixed penalty notice, the amount of the fixed penalty increases, depending on the number of notices previously issued, up to £6,400.

However, for business restriction offences, the fixed penalty amount starts at £1,000 and increases up to £10,000 depending on the number of notices previously issued. Further, a flat £10,000 fixed penalty applies for the organisation or facilitation of gatherings offences.

What should employers do now?

• immediately check whether, and how, their business or service is affected by the Regulations
• put in place a communication plan to ensure that employees are fully aware of the restrictions and are instructed to adhere to them, confirming that breach will be a serious disciplinary matter
• identify and analyse any roles where it may not be reasonably possible for them to be carried out from home
• ensure that clear policies and procedures are in place for employees who wish to request to attend work or need to travel for work purposes
• ensure managers are briefed regarding the implications of the Regulations and how to respond to employee requests to work at the employer’s business location
• identify any higher risk staff and ensure appropriate measures are in place
• provide clear and appropriate reporting lines for addressing any potential breaches of the Regulations

Click to find out more about our Health, Safety and Employment Clinic discussing Lockdown 2 webinar - 9 November 2020.