On 23 November 2020, the government confirmed that the national restrictions currently in place in England will not be renewed. From 2 December 2020, we will return to a regionally-differentiated approach, where different tiers of restrictions apply in different parts of the country. Although the government will retain the previous three tiered system, there are a number of changes to the restrictions applicable in each of the tiers, and more parts of the country should expect to find themselves in the highest two tiers of restrictions. We set out below what employers need to know about the new restrictions coming into force.
The Prime Minister presented the COVID-19 Winter Plan to Parliament on 23 November 2020, described as his government’s plan “for managing COVID-19 through the winter”. On the same date, the government issued new Guidance on the local restriction tiers that will come into force on 2 December 2020. We expect new legislation to follow shortly, putting these new restrictions on a statutory footing. In this article, we discuss what is known so far about the new restrictions.
Has the instruction to work from home changed?
The Winter Plan reinforces the importance of working from home in reducing transmission of COVID-19 and keeping the virus under control. Both the Winter Plan and the Guidance confirm that, in all tiers, “everyone who can work from home should do so.” The Winter Plan explains that, despite the government renewing its Work from Home guidance in late September 2020, the numbers of employees working from home in recent months has remained relatively low compared with earlier in the year. In view of this, and given the “significant effect” that homeworking can have on reducing transmission, the government “encourages employers to enable a greater degree of home working”. The government does, however, recognise that there may be “specific reasons why attendance in the workplace may be needed” including mental health issues or concerns.
The guidance during the second lockdown was that, “everyone who can work effectively from home should do so” (our emphasis). The word, “effectively”, caused confusion for employers when the guidance was first published: did it mean, for example, that those who can work from home, but work more efficiently in the office, may attend a COVID-secure office? The relevant legislation which followed, The Health Protection (Coronavirus, Restrictions) (England) (No. 4) Regulations 2020, and which took precedent over the guidance, used different terminology. The legislation permitted attendance at a workplace, “where it is not reasonably possible for [the employee] to work from home.” This appeared to clarify the government’s position that everyone who can work from home should do so with very limited exceptions.
It is unclear whether the removal of the word, “effectively”, from the new Guidance marks a substantive change or simply seeks to remove an element of confusion. In any event, employers will still be left grappling with whether their employees’ situations fall within one of the specific reasons permitted for workplace attendance. For example, will employers be expected to identify when an employee’s frustration and boredom with working from home changes into something that threatens their mental health? See our alert here for more details on the obligation to work from home.
How should I protect staff who are clinically extremely vulnerable to COVID-19?
Under the current national restrictions, those identified as clinically extremely vulnerable to COVID-19 are strongly advised not to attend their workplace, even if they are unable to work from home. This guidance will cease to apply once the national restrictions end. The Winter Plan confirms that government will introduce specific advice for such individuals on how they can protect themselves at each tier, which suggests that the advice may vary depending on the relevant tier. We await publication of this new advice.
What if members of staff live in areas to which different restrictions apply?
Although gatherings for work purposes are exempt from the general restrictions on socialising, the restrictions will still apply to colleagues who assemble for purposes other than work (for example, social occasions, including team lunches and after work drinks). When seeking to organise such occasions, an employer may find their workforce is divided into two or even three categories of employees, depending on the employer’s proximity to areas governed by different restrictions.
Those living in Tier 1 areas will be permitted to socialise in groups of up to six people, indoors or outdoors, whereas those living in Tier 2 will not be permitted to socialise indoors with anyone outside their household or support bubble, and those living in Tier 3 must not meet socially indoors or in most outdoor places with anybody outside their household or support bubble. Those travelling to a higher tier will need to abide by the restrictions applicable to that higher tier, and those travelling to a lower tier will still need to abide by the restrictions of the tier in which they live.
It may be difficult and time consuming for an employer to identify which restrictions apply to each member of staff. Employers will not want to be seen as encouraging or “turning a blind eye” to individuals breaching restrictions, so it is advisable for employers to communicate very clearly with staff members that they are expected to comply with the restrictions relevant to them. Employers may also want to consider whether, in order to comply with the restrictions, certain members of staff must be excluded from social events and are left feeling isolated as a result, and take action to counter this.
Lloyd Davey
Sarah Taylor