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15 July 2020
Why employers should be ready for local lockdowns
Local lockdowns will affect employers differently
Starting point: employees generally entitled to full pay during lockdown
Refurloughing is an option for now, but not for everybody
Staffing workplaces that are trying to stay open may be challenging
Working from home needs to be made viable for longer term
Planning for local lockdowns
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.
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.
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:
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.
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:
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)
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.
Against that background, employers could consider various steps to plan for a local lockdown:
For further information on this topic please contact James Davies or Gemma Taylor at Lewis Silkin by telephone (+44 20 7074 8000) or email (firstname.lastname@example.org or email@example.com). The Lewis Silkin website can be accessed at www.lewissilkin.com.
(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".
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