Summary


Article updated March 4th 2021. Originally published October 2020.

Summary

So, we now have a roadmap out of lockdown, announced on 22nd February. The Chancellor’s Spring Budget, announced on 3rd March, commits significant extra support for jobs and businesses, notably a long extension of the CJRS furlough scheme until 30th September 2021, as the UK navigates the uncertain road to full lifting of restrictions.

This article continues to cover what employers need to know now and recaps on:

  • managing your workforce and workplace safely when workplaces open up again
  • Things to consider now, and what to keep in mind going forward.
  • A reminder of the Government’s published Covid-19 Secure guidance for 14 different workplace situations, see the list and specific links below
  • Guidance on planning for further disruption, when an employer should close a workplace (aside from government mandated local closures which still remain a possibility), and what to expect.

The roadmap out of lockdown will be see Covid-19 restrictions eased over 4 stages spread across at least 4 months (roughly March, April, May and June), with social distancing rules remaining in the near term.

Latest Government Guidance

For employers, key points to note from the 4 step roadmap are:

  • Work from home if possible’ remains the default until at least 21st June at the earliest.
    The Government’s review on this will conclude around 21st June.
    Time to think about new policies on home working for when restrictions end.
  • Those who are clinically extremely vulnerable continue to shield for now, and not go into work.
    Shielding for this group will end from 1st April 2021.
  • Stage 1 of easing began on Monday 8th March.
    Schools in England reopened with after school outside sports & activities allowed. Twice weekly covid testing of school & college children begins.
  • From end March (29th) ‘Stay at home’ message switches to ‘stay local’. Foreign holidays are banned and returning travellers must quarantine.
    Six people, or a larger group if just 2 households are present, can meet outside including in private gardens. Parents and children groups can return but are capped at 15 and must be outdoors. Indoor groups can take place for vulnerable children and where parents need the groups to go to work.
    It becomes illegal to travel outside the UK for a holiday, with fines of £5,000 for doing so. The Government has promised a review of when international travel can resume by 12th April. But Europe’s self-defeating vaccine roll out plans and it’s third wave of cases, will likely delay holidays to the bloc.
  • From no earlier than 12th April – Stage 2 – general opening up of the economy.
    All non-essential shops can open, along with restaurants and pub gardens allowed to serve food and alcohol but at outdoor table service only. Hairdressers, gyms and spas can open for individuals and households.
    UK holidays away from home are allowed. Employers are wise to anticipate a surge of holiday requests.
  • More details on the plans for easing, and Stages 3 and 4 are here.

The roadmap is underpinned by ‘4 key tests’, which must be met before moving onto the next step of reopening.

In the Spring Budget The Chancellor announced a 5 month extension to the CJRS furlough scheme, which will now run until September 30th 2021. Our furlough Q&A article has full details of the latest extension to September 2021 that employers need to know.

Vaccination roll out

The stellar Covid-19 vaccine rollout programme is entering its next phase, after everyone in the top four priority groups, was offered a jab. The vaccines are having a ‘spectacular’ impact and the Government is hoping to vaccinate all over 50s twice, by mid July and everyone over 18 by the end of July 2021.

Even so, as restrictions ease, both vaccinated and unvaccinated people will be mixing in the community and in workplaces. Not all individuals will have the vaccine, either for medical reasons, because of pregnancy, (pregnant women are not all recommended to have the vaccine unless they are at particular risk) or due to their beliefs. When it comes to employees who refuse the vaccine on the basis of their beliefs, employers can find themselves in un-chartered waters. Pre-Covid employment laws are not adequate to deal with the new working circumstances in which we find ourselves. And being a test-case is something employers would want to avoid.

It would likely be discriminatory to order staff to have vaccines under current contracts. Some firms are saying they will not hire new staff who refuse to have the jab. The legal elements in this issue are many, and beyond the scope of this article. The best course of action is likely to be for employers to encourage staff to be vaccinated, and publicise the benefits. Follow the Government and NHS advice as the vaccination programme is rolled out. Don’t order staff to get a vaccine or refuse to employ someone who has not had a vaccine. Contact us and take advice if you are facing this situation. Employers should consider having a policy around healthcare and vaccinations, including Covid-19.

The CIPD has made available a helpful comprehensive FAQ which includes detail on plans organisations can make surrounding vaccinations and publicising benefits of vaccination.

NHS test & trace

The UK’s test and trace, or contact tracing, is a system for identifying people who have been in close contact with someone who has tested positive for Covid, and asking that individual to self-isolate for 10 days, even if they have no symptoms, and to get a test if symptoms develop. It is deigned to control the spread of the virus. Each UK nation has its own contact tracing service. If an individual is contacted and told to self-isolate, they are under a legal requirement do so. Failure to do so (or encouraging someone not to self-isolate – by asking them to come back to work, for example) can result in a fine from £1000 upwards.
There is also the NHS Covid-19 app, for smartphones, which alerts users if they have been in contact with someone who later shares that they have had a positive test via the app.

Employers are already fully aware of the disruption of staff being asked to self-isolate for 10 days.

Working from home

Home working is still the default until June 21st 2021, the earliest date by which all legal restrictions can be lifted. Until then, people should continue to ‘work from home wherever possible’ and only go to work if it’s impossible to work from home. Shielding for the clinically extremely vulnerable ends from 1st April 2021.

Employers will need to notify staff that they will be working from home; a familiar drill by now. But if you need to recap, read our employers’ guide to homeworking, which includes a template homeworking policy, risk assessment, guidance and resources.

Government’s 5 steps to working safely during COVID-19

The Government guidance for making workplaces ‘COVID- secure published when the first lockdown ended, set out 5 practical measures that employers must adopt to once workplaces can open again, to maintain the critical two metres social distancing, what to do where this is not possible and adopting very good hygiene and cleaning practices at the workplace.

1 work from home if you can

All reasonable steps should be taken by employers to help people work from home. But for those who cannot work from home and whose workplace has not been told to close, our message is clear: you should go to work. Staff should speak to their employer about when their workplace will open

2 Carry out a Covid-19 risk assessment, in consultation with workers or trade unions and implement it

This forms the core of your return to work plan. Take the opportunity to consult with staff, so that when they do return to work on site, they have already been consulted and given their views on making their workplace Covid-19 secure.

If possible, employers should aim to publish the results of their risk assessments on their website; the Government expects all businesses with over 50 employees to do so. Further details on risk and completing risk assessments are contained in the guidance for making workplaces ‘covid-19’ secure.

Following the PM’s announcement, on 12th May 2020 the Health & Safety Executive (HSE) published a toolkit designed to assist employers to manage and assess risks at work arising from the COVID-19 pandemic and more generally.
HSE risk assessment toolkit overview and,
HSE risk assessment detail .

3 Maintain two metres social distancing wherever possible

Employers should re-design workspaces to maintain two metre distances between people by:

  • staggering start times
  • creating one way walk-throughs
  • opening more entrances and exits, and/or
  • changing seating layouts in break rooms.

4 Where people cannot be two metres apart, manage the transmission risk 

Employers should consider:

  • putting barriers in shared spaces
  • creating workplace shift patterns or fixed teams minimising the number of people in contact with one another, and/or
  • ensuring colleagues are facing away from each other.

5 Reinforce cleaning processes 

Workplaces should be cleaned more frequently, paying close attention to high-contact objects like door handles, stair rails, and keyboards. Employers should provide hand washing facilities or hand sanitisers at entry and exit points.

Government guidance for 14 workplace situations

The Government guidance consists of 14 workplace guides for different workplace situations, listed below:

Close contact services: hair & beauty, therapists, tailors
Construction and other outdoor work
Factories, plants and warehouses
Heritage Locations
Hotels & other guest accommodation
Labs and research facilities
Offices and contact centres
Other people’s homes
Performing Arts
Providers of grassroots sport and gym/leisure facilities
Restaurants, pubs, bars & takeaway services
Shops and branches
Vehicles
The visitor economy: hotels, guest accommodation, indoor & outdoor attractions, business events & consumer shows.

Each guide sets out practical considerations for employers on how to set up a COVID-19 secure workplace. You will need to put in place as many as are appropriate for your workplaces. Expect these guides to be updated regularly so check them frequently.  You may of course need to follow more than one guide.

As COVID-19 is a new illness, employers must follow this official guidance as it is updated and adopt any additional steps as required.

The guides also confirm that the wearing of face coverings is optional and not required by law at the workplace, unless there is a specific requirement for PPE because of the industry or workplace setting.

Health & Safety compliance

HSE have the power to undertake spot checks and impose fines and workers can complain to the HSE if they think the workplace is not ‘COVID-19 secure’. HSE says workers should follow up with their employer first before contacting them. HSE have stated that in their experience of complaints so far, employers usually have not understood what is the right thing to do, rather than deliberately breaching health and safety laws, and when HSE has contacted the employer, the employer has worked with HSE to remedy the situation.

Health & Safety case law shows that where the employer has been liable, it has usually been a result of failing to implement the employer’s own system for making the workplace safe in line with its own risk assessment.

Following the guidance above will help employers to comply efficiently, to reassure your staff that theirs is a COVID-secure workplace and is a major part of an employer’s compliance with Health & Safety Law.

Each guide includes a downloadable notice which employers are encouraged to display in their workplaces, to show that they have followed the guidance. 

It goes without saying that employers will still need to follow their legal obligations for Health & Safety, Employment and Discrimination Law.

Continue to communicate very closely with your employees as they return to work and in the coming months if there are changes to the current guidance and / or local lockdowns take place. Be ready to review regularly your risk assessment and update it, and communicate it again with your staff.

Employers have a duty to take reasonable care and steps to ensure the safety of their workers at work – whether in the workplace or at home. This includes physical and mental safety. What is ‘reasonable’ will depend upon the:

  • type of workplace
  • likelihood and gravity of harm
  • costs and practicality or preventing it; and
  • justifications / defence for running any risks

COVID-19 has been designated by the UK Government as a ‘serious and imminent threat to public health‘. This means that the above Health and Safety duties are critical. If employers do not take adequate measures to protect their workers when returning to work, under the Employment Rights Act 1996 (s44), workers have the right to:

  • walk out;
  • refuse to return to work; or
  • take appropriate action to protect themselves or fellow workers

Workers are protected from any detriment they suffer from an employer as a result of workers taking the above protective action and any dismissal would be automatically unfair. Therefore employers should:

  1. carry out a risk assessment, as stated above, and
  2. maintain very good two-way communication with staff so concerns can be addressed.

Further planning for return to work post lockdown

Testing and isolating

Schools will undergo a sustained mass testing regime, testing all secondary school and college age children twice weekly, once they have reopened on 8th March 2021, the Government has said.

As the UK starts gradually opening up from 29th March 2021, the demand for tests is likely to increase once again.

Under new rules from mid February 2021, all passengers arriving in the UK now have to take two coronavirus tests while quarantining for 10 days, as well as show proof of a negative test taken within 72 hours before travelling, to be allowed entry.

Under the NHS Test and Trace system, everyone who has symptoms of Covid-19 must isolate immediately, for 10 days, and get a test, within 5 days of those symptoms appearing. The self-isolation period for contacts of people with coronavirus was shortened from 14 days to 10 in the UK in mid December. The 10 days isolation period includes the date of the your contact with them and the next ten full days.

Hospitality businesses will continue to help Test and Trace respond to local outbreaks by collecting contact details from customers, usually via QR codes.

Where employers are considering securing immunity/antibody testing kits when available so that staff can be tested for Covid-19 before they return to the workplace, employers they will need to consider:

  • how they can require employees to submit to testing,
  • how to manage the privacy and data protection issues involved in processing employee’s health data which is special category data for the purposes of the GDPR,
  • how will the testing be done, and
  • who will conduct the testing.

The Information Commissioner’s Office has also published a new set of FAQs for employers on data protection issues employee temperature testing

Mental Health on return from lockdown

Mental health will have been a real issue for many during the lockdown who will want to return to work for the social effects as well to get “restarted in a more familiar environment”.

Some employees may find prospect of returning to work may be even more worrying than being at home dealing with feelings of loneliness and anxiety. Having been consistently urged to stay at home to protect the NHS and save lives, there will be widespread concern about stepping out beyond home boundaries, sending children back to school, getting back onto public transport, being back in close proximity with colleagues or just having to resume a “normal” working day.

An employer who wants reintegration to be as smooth as possible will be very much aware of these issues and should:

  • Develop a clear communication plan in place to allay concerns by setting out what the employer plans to do to help employees
  • Provide support as necessary to help those who are struggling to deal with the return to the workplace.

Changes to salary and benefits on return from lockdown

Please note that from December 1st 2020, employers cannot use the CJRS grant to fund the (statutory or contractual) notice pay for employees who are being made redundant. Nor can the CJRS be used to fund the statutory redundancy payments for employees with over 2 years service. 

Now may still not be the time for any redundancies which, in the short term use up even more cashflow paying the salary and benefits for employees’ notice periods and the statutory redundancy payment for employees with at least 2 years service. These statutory redundancy payments will need to be made at 100% salary.

Employers who have furloughed workers under the Coronavirus Job Retention Scheme, will need to review the situation each month.

Employees who may have reluctantly agreed to these arrangements while under lockdown and may be more likely to challenge these once they are asked to return to a more normal working pattern.

Therefore, employers will need to justify any decisions to prolong these arrangements or to put in place new measures, ensuring employees are properly informed (and, where necessary, consulted with) to ensure there is a clear understanding of the rationale.

As other industries announce redundancies workers will be concerned and may see the fact that they have been furloughed as indicating they are more at risk of redundancy. Ensure there is a one-to-one return to work and appropriate team meetings to re-enforce returning workers as part of the team.

Flexible working on return from lockdown

Employers would be wise to consult with workers individually about their situations to enable an effect and safe return to work. As we have already stated above the Government is recommending that employers ensure that staff work from home where they can but there is now a drive to get workers back to the workplace.

The lockdown has seen a more wide spread adoption of home working and it may be deployed as the situation requires. For example if a worker has to shield for their own or family reasons or is contacted by test & Trace or home schooling is re-introduced, home working may be required for some weeks and months. Workers may be at times unfit to work and be back into the Statutory Sick Pay (SSP) scheme.

Now is the time to update what is needed for home working on a longer term basis e.g changes to employment contract, risk assessment and identifying the correct way to use secure IT systems and the new video conferencing, messaging, collaboration platforms etc.

Our home working article covers all the elements Employers and HRs need to know in order to get home working right.

Home working going forward

Employers have been implementing remote working since the lockdown of course, and many employees will continue to work from home well into 2021.

In normal circumstances, anyone working from home should undertake a risk assessment of their home workplace.

Employers are still responsible for employees’ Health and Safety and welfare when they are working at home.

Communicate with workers your policy on:
– home working,
– work travel, and
– precautionary isolation.

Read our guidance on managing home working effectively and compliantly, which includes a template risk assessment and home working policy.

What are employees’ rights if working from home.

Consider what pay your employees will receive if they work part-time, to fit around caring for children/elderly relatives.
Be as agile and flexible as you are able to ensure as many employees as possible to continue working.

Conduct internal and client meetings where appropriate using virtual meetings/video conferencing/live streaming.

Workers who are shielding

For the clinically extremely vulnerable in England, who have been asked to shield and not go into work during lockdowns, employers will still need to take a worker’s personal situation into account. This is because of the health and safety risk of forcing them back into the workplace with the risk of them contracting COVID-19 at the workplace. Individual discussions should always take place with these categories of workers. As employees may feel uncertain about returning to work employers can help with the transition for their clinically extremely vulnerable employees, ensuring that robust measures are put in place for them to return to Covid-secure workplaces. This includes agreeing a plan for their returning with employee, taking account of the employer’s policies in relation to COVID-19 and any necessary adjustments to enable the employee’s return. The employer should update their Risk Assessments for these changes and for these particular groups of staff.

The NHS will maintain the Shielded Patient List and, should levels of Covid-19 increase in communities, those at highest risk may be advised to take more restrictive measures to keep themselves safe. Employer should therefore plan for these employees having to work from home again.

Planning for future disruption

There will be continued disruption in the months ahead, so businesses need to continue to:

  1. Identify business critical roles and how they can be maintained.
  2. Identify any vulnerable employees, such as pregnant women, those over 70 and those who originally received a letter from the NHS at the start of the pandemic, explaining that they must shield. Assess and agree the adjustments needed for them for example long term working from home.

    Where travel is absolutely necessary:
    – consider what protective measures should be put in place,
    – ensure that protective equipment is sourced and ordered
    – check the FCO advice for the country in question.

  3. Identify the minimum safe level of workers required to continue operating, and how that can be maintained in the worst-case scenario. Identify the point at which the business may need to cease operating temporarily and speak to us about the employment law consequences.
  4. Plan for staff working from home on a longer term or more regular basis in accordance with the Government guidelines or flexible working requests, because parents are still home-schooling until 8th March 2021 or shortly after.
  5. Plan for a local lockdown which means workers have to work from home again and non-essential travel is curtailed.
  6. Plan for vulnerable and/or shielding staff to have to go back to home working or taking sick leave.
  7. Some staff will be keen to return to the workplace and others may be very nervous of the health risks of travelling to and attending work.

At what point should an employer close the workplace?

Businesses need to comply with any local lockdown imposed as a result of moving into a higher alert level, and imposed by heir local authority. Aside from this, some thoughts on when an employer might close the workplace.

  1. The Acas guidance advises that if someone with COVID-19 comes into a workplace, the workplace does not necessarily have to close.
  2. In England, the local Public Health England health protection team (HPT) will get in contact with the employer to:
    – discuss the case
    – identify people who have been in contact with the affected person.
    – carry out a risk assessment
    – advise on any actions or precautions to take.
  3. A risk assessment of each setting will be undertaken by the HPT with the employer. Advice on the management of staff and members of the public will be based on this assessment.
  4. The HPT will also be in contact with the case directly to advise on isolation and identifying other contacts and will be in touch with any contacts of the case to provide them with appropriate advice.
  5. Advice on cleaning of communal areas such as offices or toilets will also be given by the HPT.

Review the plan each week and communicate regularly to staff.

Things will continue to change quickly as we move along the roadmap out of lockdown, and support for businesses lifts as the restrictions lift. If you want to talk through your plans or need specific advice related to the effect of Covid-19 on your business or workforce planning, please get in touch, details below.


Contact us

For more information or queries about issues discussed in this article, please contact by email.

To speak directly with or any other of The Legal Partners team of specialist business and HR lawyers based at our Richmond UK office, or our partner lawyers in Singapore or Guanzhou, please call +44 203 755 5288

This article explains the main legal issues and common situations to consider. It is not a substitute for legal advice. Please get in contact to discuss your particular issue or queries.

Contact us

For more information or queries about issues discussed in this article, please contact by email.

To speak directly with Richard or any other of The Legal Partners team of specialist business and HR lawyers based at our Richmond UK office, or our partner lawyers in Singapore or Guanzhou, please call +44 203 755 5288

This article explains the main legal issues and common situations to consider. It is not a substitute for legal advice. Please get in contact to discuss your particular issue or queries.