COVID-19: What Lockdown 3 means for employers in England

The government has published new guidance and amendment regulations setting out the restrictions that will apply in England during Lockdown 3. They set out the latest rules on attending the workplace, travel and protecting people who are more at risk – and emphasise, once again, staying at home.

Under Lockdown 3 all areas in England move into Tier 4 (first introduced in certain areas, mostly in South-East England, on 20 December 2020). Tier 4 brings with it far tighter restrictions than Tiers 1 to 3 (which, for now, no longer exist in England) and crucially, unlike the other Tiers, makes it an offence to leave home without a reasonable excuse.

The amendment regulations, which tighten the Tier 4 restrictions, came into force on 6 January 2021. The guidance on Lockdown 3 National lockdown: Stay at Home - GOV.UK, was first published on 4 January 2021.

Business closures

The revised rules set out a full list of businesses that must close and those that can remain open, which includes essential retail. These lists can be found in Part 3 of Schedule 3A of the regulations, as well as in the guidance on closing certain businesses and venues in England.

Requirement to stay at home, except for specific purposes

As was the case for the previous lockdowns, the Lockdown 3 rules provide that people cannot leave home in England without a “reasonable excuse”. There are 17 listed exceptions to this rule and they include, for example, going out for essential activities such as buying goods or services or leaving home to take exercise, move house, attending a place of worship or an educational establishment if the child is eligible to attend.  

Working from home

In relation to the workplace, under Lockdown 3 people may leave or be outside their home for the purposes of work or to provide voluntary or charitable services, where it is reasonably necessary to do so but only if it is “not reasonably possible” to work, or provide those services, from home.  

Those people who should continue to go into work include public sector workers in essential services (including childcare and education) and those who work in critical national infrastructure, construction, or manufacturing, where this is essential to keep the country operating and support sectors and employers. And those whose work necessarily involves working in other people’s homes (such as nannies, cleaners or tradespeople) can continue to do so.

The rules and guidance on working from home are very similar to the position in Lockdown 1. The guidance emphasises that employers and employees should discuss their working arrangements, and employers should take “every possible step” to facilitate homeworking, including providing suitable IT and equipment to enable remote working. It also says that “extra consideration” should be given to those individuals who are at higher risk.

Taking “every possible step” appears to be a high threshold. It was used in the guidance in Lockdown 1, and is again now, but was not used in Lockdown 2 in November 2020. There also seems to be a change of emphasis in the wording from previous guidance applicable over Autumn 2020 when working from home was recommended if the work could be done “effectively”; but employers had the discretion to decide, in consultation with their employees, if that was the case. For Lockdown 3, there is no longer any reference to working “effectively” from home, and there is a movement from considering “everyone who can work from home should do so”, to not being able to leave home to work unless it is “unreasonable” to work from home.

In conclusion, we are of the view that employers should instruct their employees to work from home unless a two stage test is met. The two stage test, for someone to leave home for work purposes is:

1. It is concluded that it is “unreasonable” for that person to work from home; and
2. It is concluded that there is nothing else which it is possible to do to enable them to work from home.

For those who will then leave home to work, a record should be kept to explain the decision reached, with appropriate levels of sign off.

The wording used in the guidance and the regulations, along with the closure of schools as the “last resort”, appears to raise the bar at which individuals should leave home to work as compared with Lockdown 2.  

Attending the workplace

Workplaces that can remain open must follow COVID-secure guidelines to protect their workers, customers and visitors.

Travel is severely restricted under Tier 4 because of the stay at home requirement. However, travel to work is permitted where work cannot reasonably be done from home. Where employees are travelling to work, they should follow the safer travel guidance (including the rules on wearing face masks and advice on car sharing). The guidance advises walking or cycling where possible, and to “plan ahead and avoid busy times and routes on public transport”. International travel is only permitted for work purposes, but only if the work cannot reasonably be done from home.

Protecting people more at risk from COVID-19

The guidance on shielding and protecting extremely vulnerable people was updated in December 2020.

People who are “clinically extremely vulnerable” are at very high risk of severe illness from COVID-19. There are two ways in which a person might be identified as clinically extremely vulnerable:

• those who are automatically deemed to be clinically extremely vulnerable by having a specific, serious health condition which falls within the list set out in the guidance; and
• those who have been added to the Shielded patients list because, based on the clinical judgement of their hospital clinician or GP, the individual is deemed to be at a higher risk of serious illness if they catch the virus.

A person falling into either of these categories should also have been advised by letter from the NHS or told by their GP that they are on the Shielded patients list. The letter acts as evidence for employers or the Department for Work and Pensions (DWP) that the employee is advised to follow shielding guidance and should not work outside their home for the period stated in the letter.

Those who are clinically extremely vulnerable should follow resumed shielding guidance and are strongly advised to work from home. If they cannot work from home, they should not attend work. Employers of such individuals have two options for the period of the lockdown:

• employees may be eligible for Statutory Sick Pay (SSP) or Employment Support Allowance (ESA), depending on their individual circumstances;
• they may also be eligible to be furloughed under the extended furlough scheme.

The clinically extremely vulnerable category does not include those who are otherwise identified as more at risk from COVID-19. The guidance provides they are:

• anyone aged 60 or over; and
• anyone who is “clinically vulnerable” to COVID-19, ie those who are aged 70 or over; anyone who has an underlying health condition who is instructed to get a flu jab every year on medical grounds; and pregnant women.

Childcare

Unlike during the March lockdown, there are a number of ways parents and carers can continue to access childcare, principally to enable them to work, and these are set out in the guidance. As to childcare provision in the home:

• nannies can continue to provide their services in the home;
• parents can form a childcare bubble with another household to provide informal childcare where at least one of the households has a child under 14;
• some households can also benefit from being in a support bubble which allows a single adult household to join another household (for example, where a single grandparent lives alone and provides childcare to their grandchildren living in another household).

Employees who are unable to work, including from home or working reduced hours because they have caring responsibilities resulting from Coronavirus, may be furloughed under the extended furlough scheme. The Eligible employee guidance updated on 5 January 2021 clarifies that this would include caring for children who are at home as a result of school and childcare facilities closing, or caring for a vulnerable individual in their household. Notably, it does not expressly refer to furloughing an employee because someone in their household is shielding.

Penalties

Anyone who leaves home without “reasonable excuse” will commit an offence and may be served with a fixed penalty notice. For a first offence, the fine will be £200, doubling for further offences up to a maximum fine of £6,400.