So here we are again then huh?!  Lockdown 3.0 we see it is being called, so here is your Lockdown 3.0 Employers Update (as of today anyway). We notice that the legislation being voted upon runs to 31 March with Boris reported as stating that this is “not because we expect the full national lockdown to continue until then, but to allow a steady, controlled and evidence-led move down through the tiers on a regional basis”.  So we’d suggest plan for the worst & hope for the best seems to be the order of the day…week…year so far. 

To confirm – there have been no major changes to furlough announced this year so that continues as per our most recent updates in December.  The guidance was updated slightly in December to clarify holiday rules & then again on 5 January regarding furloughing those with caring responsibilities but this only clarifies what was in effect previously. Note that the furlough guidance says you must confirm to your employees in writing that they are furloughed but that employees do not need to respond.  We’d still suggest that having a record confirming their agreement may be useful in future as it is a variation to their contract (and pay) even if it is on a temporary basis and without agreement there is a risk an employee could make an unfair deductions of wages claim at a later date.  Remember to keep accurate records of hours worked and hours furloughed.   Note that the guidance explicitly states that those who are deemed Clinically Extremely Vulnerable (shielding) and those who have caring responsibilities can be furloughed (at the employer’s choice) even if the business has no downturn in work.

There has been a fair degree of discussion, particularly (but not exclusively) in education regarding employees refusing to attend work (but being entitled to normal pay) quoting Section44 of the Employment Rights Act if they feel there is a real and imminent danger to their health and well-being by either being at work or travelling to work.  Of course that legislation was not written with a pandemic in mind!  If your business absolutely cannot have employees working from home and furlough is not appropriate but the Government has said you can continue to operate, then it will be up to you to ensure you have carried out adequate risk assessments and put appropriate infection control measures in place – we’d suggest taking expert advice on this. 

If you do this then there is an argument to say that your position with employees could be that if they don’t come to work you would agree to unpaid leave as there is no significant threat to their well-being over & above say going to the supermarket.  We’d suggest that it isn’t appropriate to impose any other consequences such as disciplinary action if people are genuinely concerned about their risks.  There is the potential for a breach of contract claim for the non-payment which of course is as yet untested in court in these pandemic circumstances.  The advice we were given last year by a barrister was that giving unpaid leave was potentially the “least worst option” (out of disciplinary / dismissal / unpaid leave / full paid leave) – give us a call if you want to understand more.

However – if there is any reasonable way of employees working from home, even if you think it might be a bit more inconvenient, or a bit harder to manage, this is absolutely what you should do and an insistence on people attending work in that situation would, we think, give rise to a very successful claim under Section 44 if an employee refused to do so.  That legal and financial risk aside – as an employer you of course need to consider your duty of care and the best way to treat employees in order to get the best out of them in such tricky times.

We’ve heard the happy news of a fair few new arrivals on the way in 2021 – let’s face it TV got quite dull after a while didn’t it?!  There was new Gov guidance on Covid & pregnancy published at the end of December that it may be useful for employers to be aware of if you have pregnant employees. 

New guidance on Sick Pay or other entitlements if employees need to isolate was also updated at the end of December – it looks to us as if it says what we already knew but a quick re-read to refresh your own understanding may be useful.  This link also details the fines if you ask employees to attend work when they should be isolating.  Note that the furlough guidance itself still clearly states that the CJRS is not intended for short term absences from work due to sickness and that short term illness or self-isolation should not be a consideration in deciding whether to furlough employees – the isolation & sick pay guidance are not so explicit on this point. 

We really hope our Lockdown 3.0 employers update information doesn’t have to go on for too long but we will of course be providing updates as long as they are needed.

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