UK & Europe
The government has published guidance on the new restrictions that will apply in England during lockdown, which begins on 5 November and is currently due to continue until 2 December 2020. The guidance, which sets out the latest rules on attending the workplace, travel and protecting people who are more at risk, emphasises, once again, staying at home.
While the guidance says that a full list of business closures will be published and set out in law, those listed in the guidance that must close are: all non-essential retail, indoor and outdoor leisure facilities, entertainment venues, personal care facilities (such as hair, beauty and nail salons) and hospitality venues (except for takeaway and delivery services).
The guidance says that people must work from home if this is possible: "everyone who can work effectively from home must do so. Where people cannot do so (for instance people who work in critical national infrastructure, construction or manufacturing) they should continue to travel to work/attend their workplace. This is essential to keeping the country operating and supporting vital sectors and employers."
This shows a shift in the government’s message. The examples given for when people cannot work effectively from home are very limited: working in critical national infrastructure, construction or manufacturing, as well as public sector employees who work in essential services such as education settings.
The fact that the position appears to have changed is also conveyed in the context of both the requirement to stay at home, and the new travel restrictions. There are limited circumstances in which we are allowed to leave our home, which includes "for work purposes, where your place of work remains open and where you cannot work from home". And one of the five permitted reasons for travelling is "travelling to work where this cannot be done from home". This position is also reinforced by the fact that certain businesses are being ordered to close their doors for a month from 5 November 2020.
The requirement that people must work from home unless their roles cannot be performed at home contrasts with the position from 22 September 2020. Then, working from home was recommended if work could be done "effectively" – and employers had the discretion to decide, in consultation with employees, if that was the case. During lockdown, we appear to be going back to the position we had between May and early July, when offices were effectively closed and office workers were required to work from home.
This indicates that, in respect of any office workers who attend the workplace in England between 5 November and 2 December 2020, businesses will need to show why they need to be in the office and why they cannot work from home. And in showing why it is necessary to attend work during lockdown, in our view the bar is higher than it was from 22 September, when there was in our view more flexibility in determining and considering what was "effective" working.
Essential retail (food shops, supermarkets, garden centres etc) and essential public sector workplaces, and those of other essential services, that can remain open must follow COVID-secure guidelines to protect their workers, customers and visitors.
Where employees need to use public transport to travel to work, employers should advise them to follow the safer travel guidance (including the rules on wearing face masks and advice on car sharing).
The guidance identifies these categories of workers who are considered to be at higher risk of severe illness from COVID-19:
Those who are clinically extremely vulnerable to COVID-19 are advised to work from home during lockdown. Those who cannot work from home are advised not to go to work, and may be eligible for Statutory Sick Pay or Employment Support Allowance. New guidance will be published, and the government will write to those who are clinically extremely vulnerable, setting out detailed advice.
The guidance remains silent on what someone who is pregnant, aged 60 or over or who is clinically vulnerable should do if they are unable to work from home, which suggests that provided their workplace is COVID-secure, they should continue to go to work. That said, the guidance emphasises that employers should give extra consideration to individuals who are at higher risk from COVID-19, which may require employers to take additional precautions.
The emphasis in the guidance on working from home has changed. Previously, the government was recommending that people work from home where this could be done "effectively", and there was some discretion for employers and employees to decide.
From 5 November 2020, it seems that any attendance in the office would need to be for a reason which will stand up to scrutiny in the context of a national lockdown and businesses being ordered to close. Employers would also need to keep a clear, detailed record of why the individual cannot work effectively from home and why it is absolutely necessary for them to go into the office.
The guidance says that the relevant authorities will have powers to enforce the law on the new restrictions, including through fines. This means that a breach of these restrictions will be a criminal offence.