As national lockdown restrictions begin to ease, employers can expect local lockdowns to become more common. This article explores the relevant HR and employment law issues around potential local lockdowns.
Employers should be ready for local lockdowns
On 3 July 2020, Boris Johnson set out his plan for controlling COVID-19 by targeting action at local outbreaks. In Leicester, a local lockdown is now in place, backed up by regulations.
Several pubs were also closed shortly after they reopened when customers revealed that they had been tested positive for COVID-19. As national lockdown eases, these types of emergency local lockdown are likely to become more common and could affect whole counties, cities or smaller communities or just individual workplaces, schools or residential areas.
Local lockdowns will affect employers in different ways
Businesses will not necessarily be required to close just because they are in an area that has been placed under local lockdown or because an employee or customer tests positive for COVID-19, but they may be affected in the following ways (this is a non-exhaustive list):
- Some businesses within the affected area may be required to close.
- Offices that have reopened may need to require employees to work from home again. (The current advice is that anybody who can work from home should be doing so. If this advise is relaxed in the near future, it may be a measure that is put back in place due to a localized lockdown.)
- Employees may be unable to work due to illness, self-isolation or school closures or may have concerns regarding the risks of travelling to work, especially if they they are vulnerable or live with someone who is vulnerable.
- Employees could be affected by travel restrictions. The Leicester regulations provide that commuting to work is a reasonable excuse, and future local lockdowns will presumably take a similar approach. However, more restrictive lockdown measures could be introduced if it becomes a necessity.
- Individual workplaces could be required to close in the event of an outbreak of COVID-19.
Starting point: employees generally entitled to full pay during lockdown
Most employees are entitled to full pay if they are willing to work, even if their employer is unable to provide them with work. This is not true for all employees. For example, casual workers, are generally entitled to be paid only for the hours that they actually work. However, in the event of an emergency temporary closure, most employees would be entitled to their normal pay unless employers take steps to renegotiate this position. For example, it may be agreed that the business has the right to place employees back on furlough (see below) or terminate the employee without pay.
Re-furloughing is an option for the meantime, but not for everybody
The government has reassured employers in Leicester that the furlough scheme remains in place and that they can continue to furlough employees under the scheme or re-furlough employees who have returned to the work place. The furlough scheme is usually the best option where there is no work to be done, but employers must be aware that it will not necessarily help them to cover all employment costs in the event of an emergency closure:
- The furlough scheme is now closed to new entrants, so will help only businesses that have previously used the scheme in respect of employees that they have previously furloughed.
- If a business decides to take on new staff when reopening, it cannot furlough them in the event of a local lockdown.
- Employers that did not furlough employees during the national lockdown cannot place those staff on furlough if ordered to close due to an outbreak on their premises.
- Employees cannot be furloughed unless they agree to it. When the national lockdown was imposed, employees generally agreed to be furloughed because the alternative was likely to be the loss of their job. However, for temporary closures, employees may be less willing to agree – at least without a top-up to their pay. If they refuse, employers may have to consider redundancies, but these are not quick to implement and may be difficult to justify if the lockdown is likely to be relatively short.
- The furlough scheme will require employer contributions from August 2020 and will end altogether at the end of October 2020. The chancellor of the exchequer has so far ruled out any extension of the scheme. It is possible that it could be revived for local lockdowns, or that local authorities may be asked to provide support using funds supplied by the central government, but there are no signs of this currently.
Staffing workplaces that are intending to remain open could be challenging
In the event of a local outbreak, employees may become sick or be required to self-isolate as a result of contact with someone who displays symptoms of COVID-19. Employees who are self-isolating or fall ill will be entitled to statutory sick pay and potentially company sick pay, if provided in their employer’s contracts. If employers are keeping the workplace open during any local lockdown, they may need to source temporary cover for employees who are sick or self-isolating (if the employee is unable to work from home).
If schools and nurseries close, many employees will be unable to come into work even if the workplace says open. This could affect employers outside an affected area, as well as those within it. If an employee cannot work because of childcare or school disruption, they need not be on full pay (unless their employer’s policy provides for this), but they do have a right to unpaid emergency time off for dependents. Employees could also be re-furloughed in these circumstances. Employers may also need to source temporary cover for the employee’s absence.
What if employees are unwilling to come to work because of concerns about contracting COVID-19 at the workplace? All employees have a statutory right not to be subjected to any detriment or dismissed for refusing to come to work in circumstances where they have a reasonable belief that they are in serious and imminent danger.
In situations where the statutory protection applies, employees would be entitled to stay at home on full pay. If the local infection rate is high, employers can expect employees to argue that it is too dangerous to come to work, especially if they are vulnerable or live with a vulnerable person. There may even be pressure to close the workplace.
Employees who must use public transport may also raise concerns about the safety of asking them to come in to work during a local outbreak due to the risk of infection on their commute.
Employers cannot eliminate the chances of these sorts of argument being raised, but there are various practical steps that they can take to mitigate the risks.
Working from home needs to be made viable for longer term
The current government advice is that everyone who can work from home should be doing so, and many offices remain closed. This advice could be relaxed in the coming months to allow more offices to reopen. However, in the event of a local lockdown or temporary workplace closure, office workers will likely need to start working from home again.
The UK Health and Safety Executive has stated that there are no increased risks associated with using display screen equipment (DSE) for those working at home temporarily. However, as any period of temporary homeworking extends, employers should have regular discussions with workers to assess whether additional steps are needed. Employers must also safeguard workers’ mental health and wellbeing.
Planning for local lockdowns
Against that background, employers could consider various steps to plan for a local lockdown:
- If hiring new joiners, employers must remember that they cannot furlough them. Employers should consider negotiating a lay-off provision that would allow them to send such employees home for a short period without pay in the event of a temporary closure. Employers should also decide what to state regarding homeworking in new-joiner contracts and whether they want to include an explicit requirement to work from home if needed, or at least an acknowledgement that employees may be working from home during the pandemic. Employers should also consider whether they need a new approach to hours or flexibility.
- Employers must consider whether they have the right to redeploy individuals to other sites. If not, it could be useful to introduce such a right so that employers can ask employees who live in a locked-down district to work at another site for a temporary period (if permissible and risk assessed as safe). Employers may also need to redeploy existing staff to cover for employees inside the locked-down area who are affected by school closures, sickness, self-isolation or other disruption.
- Employers should consider whether they can require employees to take annual leave at short notice. This could also be useful as a means of managing temporary closures.
- If employers have furloughed employees, they must consider whether they should secure their agreement to re-furlough or whether they will deal with this if the need arises.
- Employers should ensure that they have advised homeworkers on completing their own DSE risk assessment at home and explained the steps that people can take to reduce the risks from display screen work. Employers should consider what steps they are taking to safeguard employee mental health and wellbeing.
- Employers should consider what employee representation structures and channels they have in place for workplace health and safety issues, as well as how they will liaise with safety representatives over the arrangements for any temporary lockdown.
- Employers should consider whether any of their policies need updating now that it is clear that COVID-19 is not going to be eradicated any time soon. For example, employers should consider whether they need to have a clear position on how COVID-19-related sickness or self-isolation will be treated under their sickness absence policy.
- Employers in the middle of a restructuring or redundancy programme may need to be ready to switch to remote consultation for some or all workers in the event of a local lockdown.
- Finally, some employers are considering other changes to employment contracts for existing employees to provide greater flexibility over the coming months, including reduced pay, deferred pay or the introduction of lay-off provisions.
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