The Government has introduced a set of new Regulations (The Health Protection (Coronavirus, Restrictions) (England) (No. 4) Regulations 2020) for England to deal with the second lockdown from 5 November until 2 December in order to provide clarity as to what activity is allowed and not allowed during lockdown. As part of the national lockdown, the Government has ordered certain businesses and venues to close. These include:
- all non-essential retail, including, but not limited to, clothing and electronics stores, car washes, tobacco and vape shops;
- pubs and restaurants (takeaways and deliveries can continue, however, takeaway of alcohol will not be allowed);
- indoor and outdoor leisure facilities including gyms;
- entertainment venues; and
- personal care facilities.
The general restriction of the new Regulations is that ‘No person may leave or be outside of the place where they are living without reasonable excuse.’ Reasonable excuses are all set out in in Regulation 6 and those applicable to employment state that individuals are only allowed to leave home:
- for the purposes of work or to provide voluntary or charitable services, where it is not reasonably possible for a person to work, or to provide those services, from home; or
- for the purposes of education or training.
The guidance on the exemptions states that everyone who can work effectively from home should do so. However, where certain sectors are not able to work from home, such as those who work 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 continue to go into work. Where it is necessary for people to work in other people’s homes e.g. nannies, cleaners or tradespeople, they should also continue to do so.
It may be that exceptions can be made for certain employees or specific tasks. For example, if there is work which can only be undertaken from the workplace, perhaps because it involves a large number of hard copy documents, then that may fall within the work exemption.
Furthermore, the exemptions state that individuals can also leave their home "to avoid injury or illness". Although not expressly stated, this could potentially give employers scope 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. However, these are the exceptions rather than the norm, and employers should ensure they can be justified before relying on them.
The Regulations also impose restrictions on what ‘gatherings’ are allowed, both inside a premises and outside. The general position is that no gatherings are allowed by two or more people, whether it’s indoors or outdoors. However under Regulation 11 an indoor or outdoor gathering is permitted if it is reasonably necessary for work purposes and among some other unrelated work purposes. This may include providing voluntary or charitable services, or for the purpose of education or training. Further exemptions include where:
- it is reasonably necessary to facilitate a house move;
- the person concerned is fulfilling a legal obligation or participating in legal proceedings;
- the person concerned is an elite sportsperson and the gathering is necessary for training or competition; and
- the gathering is reasonably necessary for the purposes of childcare.
Employers should review whether it is reasonably possible for employees to work from home. If it is, then all such employees should work from home from 5 November until 2 December 2020. If employees are required to come in to work to perform their normal duties, because it is not reasonably possible for them to do so at home, then the employer should provide a statement in writing to explain this to ensure that they can both demonstrate that they remain compliant with the Regulations.
Guidance for the Clinically Extremely Vulnerable during lockdown
In addition to the lockdown regulations, on 5 November 2020 the Government updated its guidance for those who are Clinically Extremely Vulnerable. Formal shielding notification letters will be issued to those affected and the general advice is that Clinically Extremely Vulnerable individuals are advised to stay away from work even if they cannot work from home. The guidance confirms that people falling within this category may be furloughed (if they were on payroll on or before 30 October 2020) or may be entitled to Statutory Sick Pay (SSP).
The Guidance advises Clinically Extremely Vulnerable individuals to stay at home as much as possible, except to go outdoors for exercise or to attend essential health appointments.
For employees living with a Clinically Extremely Vulnerable person the guidance states that they should work from home if they can, but may attend their workplace if they cannot “work effectively from home”.
Taylor Walton’s employment team are available to assist employers with matters relating to the implications of the Government’s guidance in relation to the coronavirus. If you have any queries relating to the issues raised in this guidance note, please contact Alec Colson in the first instance on 07711 589574 or firstname.lastname@example.org.