March 23, 2020

COVID-19 UK: Employment guidance for key workers

The government has asked parents to keep their children at home from 23 March 2020 to limit the chance of the coronavirus spreading and said that schools will remain open only for certain children. On 19 March 2020, the government published guidance for schools on maintaining limited childcare provision while schools are closed.

Guidance for schools, childcare providers, colleges and local authorities in England on maintaining educational provision

Key principles

Schools, and all childcare providers, have been asked to continue to provide care for a limited number of children – where they are:

  • vulnerable children; or
  • their parents are "key workers" – that is workers who are critical to the Covid-19 response and cannot be safely cared for at home.

The key principles are:

  • If it is at all possible for children to be at home, then they should be.
  • If a child needs specialist support, is vulnerable or has a parent who is a critical worker, then educational provision will be available for them.
  • For childcare, parents should not rely on those who are advised to be in the stringent social distancing category such as grandparents, friends, or family members with underlying conditions.
  • Parents should also do everything they can to ensure children are not mixing socially in a way which can continue to spread the virus - they should observe the same social distancing principles as adults.
  • Residential special schools, boarding schools and special settings will continue to care for children wherever possible.

It is the definition of "key workers" which has been most debated since the guidelines were announced. 

Who are key workers?

The guidance says: 'If your work is critical to the Covid-19 response, or you work in one of the critical sectors … and you cannot keep your child safe at home then your children will be prioritised for education provision:…'.

So key workers are those parents whose work is critical to the Covid-19 response, including individuals who work in health and social care, and certain individuals who work in other key sectors outlined below:

  • Health and social care - including but not limited to doctors, nurses, midwives, paramedics, social workers, care workers, and other frontline health and social care staff including volunteers; the support and specialist staff required to maintain the UK’s health and social care sector; those working as part of the health and social care supply chain, including producers and distributers of medicines and medical and personal protective equipment.
  • Education and childcare - including childcare, support and teaching staff, social workers and those specialist education professionals who must remain active during the Covid-19 response to deliver the government's approach to schooling.
  • Key public services - including those essential to the running of the justice system, religious staff, charities and workers delivering key frontline services, those responsible for the management of the deceased, and journalists and broadcasters who are providing public service broadcasting.
  • Local and national government - this only includes those administrative occupations essential to the effective delivery of the Covid-19 response or those delivering essential public services, such as the payment of benefits, including in government agencies and arms length bodies.
  • Food and other necessary goods – including those involved in food production, processing, distribution, sale and delivery, as well as those essential to the provision of other key goods (for example hygienic and veterinary medicines).
  • Public safety and national security - including police and support staff, Ministry of Defence civilians, contractor and armed forces personnel (those critical to the delivery of key defence and national security outputs and essential to the response to the Covid-19 pandemic), fire and rescue service employees (including support staff), National Crime Agency staff, those maintaining border security, prison and probation staff and other national security roles, including those overseas.
  • Transport – including those who will keep the air, water, road and rail passenger and freight transport modes operating during the Covid-19 response, including those working on transport systems through which supply chains pass.
  • Utilities, communication and financial services – including staff needed for essential work in:

        - financial services provision (including but not limited to workers in banks, building societies and financial market infrastructure)

        - oil, gas, electricity and water sectors (including sewerage)

        - information technology and data infrastructure sectors and primary industry supplies to continue during the Covid-19 response

        - the civil nuclear, chemicals and telecommunications sectors (including but not limited to network operations, field engineering, call centre staff, IT and data infrastructure, 999 and 111 critical services)

          and staff needed for:

       - postal services and delivery

       - payments providers

       - waste disposal sectors.

Financial services and insurance

The Financial Conduct Authority (FCA) has set out steps firms should take to help identify key workers in financial services. They note that they expect only a limited number of people to be identified as being key financial workers.

The FCA says that a key financial worker - at a dual-regulated, FCA solo-regulated firm or PSR-regulated firm, or operators of financial market infrastructure - fulfils a role which is necessary for the firm to continue to provide essential daily financial services to consumers, or to ensure the continued functioning of markets.

To help firms identify who those individuals are, the FCA recommends that firms should identify:

  1. The activities, services or operations which, if interrupted, are likely to lead to the disruption of essential services to the real economy or financial stability
  2. The individuals that are essential to support these functions
  3. Any critical outsource partners who are essential to continued provision of services, even where these are not financial services firms.

It also lists the types of roles that may be considered as providing essential services. These include roles within the insurance sector, and Graeme Trudgill, Executive Director of British Insurance Brokers’ Association (BIBA), has stated that the categories identified by the FCA cover various areas relevant to insurance brokers. He has also identified the ones that could be of relevance to brokers.

Key Workers Financial Services

Key Workers Insurance

What this means for employers

Some employers are being asked to confirm whether particular workers are key workers.

It won't be clear in every case whether an individual is a key worker. In the guidance, the categories of key workers, and the roles encompassed within them, are broad and open to interpretation – particularly in relation to 'utilities, communication and financial services'. There is very little by way of guidance for employers and it is largely left to their discretion to decide if an employee qualifies as a key worker.

Given it is grey, what steps should an employer take?

Our view is that the Government has probably left the categories generic and grey on purpose.  The Government does not want to miss out a worker who is required or needed for the Covid-19 effort.

This does mean that trust is placed in employers.  So what should employers do?  Our view is to step back and consider "is this person critical to the Covid-19 response?"  And could it be explained to a third party why the view adopted has been adopted.

For those in insurance and financial services there is also the FCA guidance above to assist.

For any questions please contact your usual advisor at Clyde & Co.