New COVID Lockdown Restrictions Announced: Do Non-Essential Offices Need to Close?

Today’s announcements from UK Prime Minister Boris Johnson, which was for the most part mirrored by Scotland’s First Minister, outlined a number of new lockdown restrictions for people and businesses throughout England and Scotland.

The new restrictions include pubs, bars and restaurants being restricted to table service only, 10pm curfews for hospitality venues, more rigid rules for wearing face coverings and in Scotland, a nationwide ban on visiting other people’s homes, except for those living alone, or alone with children, who form extended households, couples who do not live together, or to tradespeople or for the provision of informal childcare – such as by grandparents.

What Does Today’s Announcement Mean for Non-Essential Offices?

Today’s announcement has left many Employers with non-essential offices that have only recently reopened and who have just welcomed staff back to work wondering whether they need to again shut their offices, at a time where the CJRS (Furlough Scheme) is imminently due to end and they are only just starting to get back on track.

In Scotland, the guidance from the Scottish Administration, which is, “everyone who can work from home should continue to do so”, has not changed since lockdown restrictions were first introduced.

In England, today’s guidance changed to, “office workers are being told to work from home again if possible.”

Do Non-Essential Offices Now Need to Close?

In short, NO. There is nothing in the legislation and/or guidance that says they cannot remain open and there is no reference to non-essential offices in Schedule 1 of the Regulations explicitly requiring them to close.

Accordingly, the decision to keep non-essential offices open is entirely in the hands of Employers.

What Does the Law Say About Non-Essential Offices?

In Scotland, the Health Protection (Coronavirus) (Restrictions) (Scotland) Regulations 2020 sets out the legal requirement to close premises and businesses during the emergency period.

Part 1 of these Regulations, states that the ‘emergency period” starts when these Regulations come into force and ends in relation to a restriction or requirement imposed by these Regulations on the day and at the time specified in a direction published by the Scottish Ministers terminating the requirement or restriction.

Part 1 of the Regulations also sets out the requirement for a review and termination of restrictions, namely:

Scottish Ministers must review the need for restrictions and requirements imposed by these Regulations at least once every 21 days.

As soon as the Scottish Ministers consider that any restriction or requirement set out in these Regulations are no longer necessary to prevent, protect against, control or provide a public health response to the incidence or spread of infection in Scotland with coronavirus, the Scottish Ministers must publish a direction terminating that restriction or requirement.

Part 2 of the Regulations sets out the requirement to close premises and businesses and Schedule 1 (Parts 1, 2 and 3)sets out those premises and business that were/are required to close during lockdown.

Part 3, Regulation 5 sets out the restrictions on movement which, in the early phases of lockdown, meant people could not leave their homes unless they were a key worker, an essential worker or otherwise had a valid reason to under regulation 8(4).

Part 3, Regulation 6 sets out the restrictions on gatherings in public places, which during the emergency period was limited to no more than two people, subject to certain exceptions.

So, following today’s announcements the official guidance for non-essential offices appears unchanged however, what is clear from the legislation is the following:

The restrictions set out in Part 3, regulation 5 and 6 have now been relaxed and there are no longer restrictions on travelling within the UK.

Indoor non-office workplaces can reopen if guidance on physical distancing and other hygiene measures are in place. This includes places like factories, warehouses and labs.

“Non-essential offices” is NOT listed in Schedule 1 of the Regulations.

Considerations for Employers Choosing to Keep Offices Open

Employers choosing to remain open must consider carefully the following questions:

Is what you do essential or material to the effort against the virus or to the wellbeing of society?

Is your business able to open in accordance with the current position in Scotland’s Route Map?

Are you able to demonstrate and give confidence to your workforce that you can consistently practice safe physical distancing and comply with ALL other standard health and safety requirements?

Employers who can answer yes to any of the above questions and who decide to keep their offices open must continue to follow any sector specific guidance and where there is no sector specific guidance, they should ensure that as a minimum they take the following steps:

Continue to assess the risks to yourself, your employees, your suppliers and your customers. If you employ 5 or more employees, this must be recorded in writing and if you employ 50 or more employees, you must publish your risk assessment.

Ensure you have in place all required infection and control measures, which could include:

Cleaning more often. Increasing how often surfaces are cleaned, especially those that are being touched a lot. Asking staff to use hand sanitiser and wash their hands frequently.

Asking customers/visitors to the office to wear face coverings.

Making sure everyone is social distancing. Make it easy for everyone to do so by putting up signs or introducing a one-way system that staff/visitors can follow.

Increasing ventilation by keeping doors and windows open where possible and running ventilation systems at all times.

Turning people with coronavirus symptoms away. If a staff member (or someone in their household) or a customer/visitor to the office has a persistent cough, a high temperature or has lost their sense of taste or smell, they should be isolating.

Employers should be prepared to be flexible given the likelihood that COVID-19 will remain a risk for the foreseeable future and a resurgence in infections may result in them facing further lockdown restrictions. It is important also to remember that staff may have legitimate reasons for not wanting to remain at work, such as:

being or living with a “clinically extremely vulnerable’ or ‘clinically vulnerable’ person.

Having childcare issues if children are sent home from school or nurseries or being unable to rely on normal childcare arrangements.

feeling extremely anxious about the risk posed by COVID-19 and fearful about remaining in the office.

expressing concerns relating to health & safety and what they perceive to be the employer’s failure to follow government guidance and/or implement appropriate measures and controls.

Employers will need to carefully consider feedback from staff, be prepared to be flexible and act reasonably when responding to staff feedback so as to avoid the risk of possible claims at the Employment Tribunal.

Support for Employers

The COVID-19 lockdown restrictions continue to present numerous and complex challenges for Employers.

If you are an Employer and require advice and support on any employment matters, COVID related or otherwise, call us now on 0800 612 4772 or Contact us via our website and we will set out clear guidance to assist you to comply with your legal obligations.