As national lockdown restrictions begin to ease, employers can expect local lockdowns to become more common. This article explores the relevant HR and employment law issues.

Why employers should be ready for local lockdowns

On 3 July 2020 the prime minister set out his plan for controlling COVID-19 by targeting action at local outbreaks. In Leicester, a local lockdown is now in place, backed up by regulations. This followed the earlier closure of a factory in Kirklees where 165 employees tested positive for COVID-19.

Several pubs were also closed shortly after they reopened when customers revealed that they had received a positive diagnosis. As national lockdown eases, these types of emergency local lockdown are likely to become more common and could affect whole regions, cities or smaller communities or just individual workplaces, schools or blocks of flats.

Local lockdowns will affect employers differently

Businesses will not necessarily need to close just because they are inside an area under local lockdown or because an employee or customer tests positive for COVID-19, but they may be affected in various ways:

  • Some businesses within the affected area may be required to close (eg, shops and restaurants).
  • Offices that have reopened may need to require employees to work from home again. (The current advice is that anybody who can work from home should be doing so, but if this advice is relaxed in future, it could be reintroduced in the event of a local lockdown.)
  • Employees may be unable to work due to sickness, self-isolation or school closures or may be concerned about the risks of travelling to work, especially if they or someone they live with are vulnerable.
  • Employees may also be affected by travel restrictions. The Leicester regulations provide that travelling for work is a reasonable excuse, and future local lockdowns will presumably take the same approach. However, more restrictive lockdown measures could be introduced if necessary.
  • Individual workplaces could be required to close in the event of an outbreak.

Starting point: employees generally entitled to full pay during lockdown

Most employees are entitled to full pay if they are ready and willing to work, even if their employer is unable to provide them with work. This is not true for all staff – casual workers, for example, are generally entitled to be paid only for the hours that they actually work. However, in the event of an emergency temporary closure, most employees would be entitled to their normal pay unless employers take steps to renegotiate this position – for example, by agreeing that the business has the right to place employees back on furlough (see below) or lay them off without pay.

Refurloughing is an option for now, but not for everybody

The government has reassured employers in Leicester that the furlough scheme remains in place and that they can continue to furlough employees under the scheme or refurlough employees who have come back to work. The furlough scheme is usually the best option where there is no work to be done, but employers must be aware that it will not necessarily help them to cover all employment costs in the event of an emergency closure:

  • The furlough scheme is now closed to new entrants, so will help only businesses that have previously used the scheme in respect of employees that they have previously furloughed.
  • Thus, if a business takes on new staff when reopening, it cannot furlough them in the event of a local lockdown.
  • Employers that did not furlough employees during the national lockdown cannot place those staff on furlough if ordered to close due to an outbreak on their premises.
  • Employees cannot be furloughed unless they agree. When the national lockdown was imposed, employees generally agreed to be furloughed because the alternative was likely to be redundancy. However, for temporary closures, employees may be less willing to agree – at least without a top-up to their pay. If they refuse, employers may have to consider redundancies, but these are not quick to implement and may be difficult to justify if the lockdown promises to be relatively short.
  • The furlough scheme will require employer contributions from August 2020 and will end altogether at the end of October 2020. The chancellor of the exchequer has so far ruled out any extension of the scheme. It is possible that it could be revived for local lockdowns, or that local authorities may be asked to provide support using funds supplied by the central government, but there are no signs of this currently.

Staffing workplaces that are trying to stay open may be challenging

In the event of a local outbreak, employees may fall ill or be required to self-isolate as a result of contact with someone who displays symptoms, whether at home, work or elsewhere. Employees who are sick or self-isolating will be entitled to statutory sick pay and possibly also company sick pay, depending on their employer's contracts and policies.(1) If employers are keeping the workplace open during any local lockdown, they may need to source temporary cover for employees who are sick or self-isolating (if they cannot work from home).

If schools and nurseries close, many staff will be unable to get to work even if the workplace remains open. This could affect employers outside an affected area, as well as those within it. If an employee cannot work because of childcare or school disruption, they need not be on full pay (unless their employer's policy provides for this), but they do have a right to unpaid emergency time off for dependants. Employees could also be refurloughed in these circumstances. Employers may also need to source temporary cover for the employee's absence.

What if employees are unwilling to come to work because of concerns about contracting COVID-19 at the workplace? All employees have a statutory right not to be subjected to any detriment or dismissed for refusing to come to work in circumstances where they have a reasonable belief that they are in serious and imminent danger.(2)

In situations where the statutory protection applies, employees would be entitled to stay at home on full pay. If the local infection rate is high, employers can expect employees to argue that it is too dangerous to come to work, especially if they are vulnerable. There may even be pressure to close the workplace.

Employees who must use public transport may also raise concerns about the safety of asking them to come in to work during a local outbreak (for further details please see "COVID-19: does employers' duty of care extend to commuting to work?").

Employers cannot eliminate the chances of these sorts of argument being raised, but there are various practical steps that they can take to mitigate the risks.(3)

Working from home needs to be made viable for longer term

The current government advice is that everyone who can work from home should be doing so, and many offices remain closed. This advice could be relaxed in the coming months to allow more offices to reopen. However, in the event of a local lockdown or temporary workplace closure, office workers will likely need to start working from home again. Many employees will welcome this, but others will have struggled with an unsuitable homeworking set-up or fragile mental health.

The UK Health and Safety Executive has stated that there are no increased risks associated with using display screen equipment (DSE) for those working at home temporarily. However, as any period of temporary homeworking extends, employers should have regular discussions with workers to assess whether additional steps are needed (eg, where they report discomfort). Employers must also safeguard workers' mental health and wellbeing.

Planning for local lockdowns

Against that background, employers could consider various steps to plan for a local lockdown:

  • If hiring new joiners, employers must remember that they cannot furlough them. Employers should consider negotiating a lay-off provision that would allow them to send such employees home for a short period without pay in the event of a temporary closure. Employers should also decide what to state regarding homeworking in new-joiner contracts and whether they want to include an explicit requirement to work from home if needed, or at least an acknowledgement that employees may be working from home during the pandemic. Employers should also consider whether they need a new approach to hours or flexibility.
  • Employers must consider whether they have the right to redeploy individuals to other sites. If not, it could be useful to introduce such a right so that employers can ask employees who live in a locked-down district to work at another site for a temporary period (if permissible and risk assessed as safe). Employers may also need to redeploy existing staff to cover for employees inside the locked-down area who are affected by school closures, sickness, self-isolation or other disruption.
  • Employers should consider whether they can require employees to take annual leave at short notice. This could also be useful as a means of managing temporary closures.
  • If employers have furloughed employees, they must consider whether they should secure their agreement to refurlough or whether they will deal with this if the need arises.
  • Employers should ensure that they have advised homeworkers on completing their own DSE risk assessment at home and explained the steps that people can take to reduce the risks from display screen work. Employers should consider what steps they are taking to safeguard employee mental health and wellbeing.
  • Employers should consider what employee representation structures and channels they have in place for workplace health and safety issues, as well as how they will liaise with safety representatives over the arrangements for any temporary lockdown.
  • Employers should consider whether any of their policies need updating now that it is clear that COVID-19 is not going to be eradicated any time soon. For example, employers should consider whether they need to have a clear position on how COVID-19-related sickness or self-isolation will be treated under their sickness absence policy.
  • Employers in the middle of a restructuring or redundancy programme may need to be ready to switch to remote consultation for some or all workers in the event of a local lockdown.(4)
  • Finally, some employers are considering other changes to employment contracts for existing employees to provide greater flexibility over the coming months, including reduced pay, deferred pay or the introduction of lay-off provisions.

Endnotes

(1) For further details please see "Sickness and sick pay – FAQs for employers as lockdown restrictions ease".

(2) For further details please see "Coronavirus – FAQs on staffing decisions when reopening workplaces" (in particular, see "What if the employee says that they cannot come to work, citing serious and imminent danger?").

(3) These steps are summarised in this table.

(4) For further details please see "Restructuring the workplace post Covid-19 - FAQs for employers".