As lockdown restrictions continues to ease across the UK, we consider the legal implications for employers on workers returning to offices and the steps they should be taking to mitigate risks.
The Easing of Lockdown Restrictions
As Coronavirus continues to impact the day-to-day operations of businesses across the UK, Prime Minister Boris Johnson has announced that most Covid restrictions will be lifted across England on 19 July.
Restrictions in other parts of the UK have also started to ease and Mainland Scotland and the Scottish Islands not already in Level 0 look set to move Level 0 from 19 July, but the Scottish administration has made clear in its latest updated framework that it will continue to promote home working where possible. It is important to note that Employment Law is reserved to the UK Government, so although the Scottish administration can give its recommendation to businesses it is extremely restricted in its ability to make financial and legal changes to support home working so it is unlikely that any compulsory changes will come into effect that mandate home working as Scotland moves into Level 0.
The details of precisely what restrictions remain in place can be found in the updated guidance published by each of the four nations:
Many employers adversely impacted by the Covid restrictions will undoubtedly be relieved that they can reopen and those who have already reopened albeit on a restricted basis will also be relieved that they can now ramp up their operations, but employers must remember that the legal position and rights of employees being required to return to work remain the unchanged.
Employers will need to manage the transition carefully and not lose sight of the fact that the Covid pandemic may have also adversely affected the lives of many of their workers in a variety of different ways, so a cautious and consultative approach with workers and unions is recommended.
The push to have workers return to their normal place of work could give rise to a variety of issues, including:
Flexible working requests
Grievances
Unfair dismissal claims
Health and safety and whistleblowing claims
Discrimination claims
The Legacy of Covid-19 Restrictions
As a result of the Covid-19 pandemic a ‘new’ normal has emerged and the harsh reality is that after over a year of working from home and other flexible working arrangements being in place many businesses have continued to function, so many workers may be resistant to returning to workplaces and reverting to the “old” way of doing things.
The key to avoiding issues is to plan well in advance and to consult with workers about these plans in order to address any questions or concerns they might have which may need to be addressed and actioned and to ensure unnecessary surprises are avoided.
The legacy of the Covid-19 pandemic and the myriad of challenges this has created for employers and workers alike is likely to be long-lasting and the benefits of having a robust and sustainable plan for the future cannot be understated.
The long-awaited exit from lockdown has been delayed, with Prime Minister Boris Johnson warning a spike in cases of the Delta (Indian) variant could lead to a surge in hospitalisations.
COVID-19 Restrictions Continue to Impact UK Businesses
On Monday 14 June 2021, Prime Minister Boris Johnson announced that the full easing of all lockdown restrictions planned for 21 June 2021 in England has been potentially delayed by a period of 4 weeks, subject to a further review in 2 weeks’ time.
The devolved administrations of Scotland, Wales and Northern Ireland had previously announced an easing of restrictions which brought them closely in line with those restrictions set out at step 3 of the roadmap in England but considering the PM’s announcement on Monday it looks increasingly unlikely that any further easing of restrictions will be announced any time soon, or at least before the end of June.
A Disjointed Four Nations Approach to Lockdown Restrictions
Since the devolved administrations of Scotland, Wales and Northern Ireland decided to break lockstep with the UK government in favour of adopting their own approach to lockdown restrictions, many have been left confused and uncertain about what is or isn’t permissible.
In England, where a four-step roadmap out of lockdown is in place, more businesses were able to reopen when England moved to step 3, but the decision to delay the full easing of lockdown restrictions and remain at step 3 will create serious implications for employers who had hoped all COVID-19 restrictions would end on 21 June 2021 as originally planned.
In Scotland, where a five-tier protection system (0-4) is in place and which can be applied separately to each local authority area, more businesses were able to reopen from 5 June 2021 when many areas moved from level 3 to level 2 and from level 2 to level 1, subject to remaining social distancing restrictions, but soft play, nightclubs and adult entertainment venues must remain closed and many businesses in the tourism, hospitality and events sectors remain adversely affected.
In Wales, where a four-level alert system is in place (1-4), some restrictions were eased from 7 June 2021 when Wales moved from level 2 to level 1. Many more businesses were able to reopen, but skating rinks, nightclubs and adult entertainment venues must remain closed.
Covid-19 Restrictions in Wales
In Northern Ireland there has also been a slight easing of restrictions and many businesses have been able to reopen, but the overriding message is that working from home where possible should remain the default position and that employers should take every step possible to facilitate home working.
The Delay on Easing Lockdown Restrictions – Implications for Employers
The Prime Minister’s announcement was in response to a notable rise in the R number across all regions of the UK and continuing concerns over the impact of the Delta (Indian) COVID-19 variant.
For those businesses with employees currently working from home, the default position across all regions of the UK is that employees who can work from home should continue to do so.
There is no change to the guidance in respect of employees who cannot work from home – in these circumstances, employees continue to be permitted to work in their usual workplaces, and the working safely during coronavirus guidance continues to apply.
The delay in any further easing of lockdown restrictions is impacting all businesses, but those in the tourism, hospitality and events sectors appear to be affected most, not least due to continuing restrictions on how many people venues can safely accommodate with social distancing measures in place.
Practical Considerations for Employers
Many employers may also need to reassess their staffing requirements and quickly decide what this means for any recent job offers and current furlough arrangements and the cost implications of extending furlough beyond 1 July 2021 will need to be carefully considered.
Although the furlough scheme was previously extended until 30 September 2021, the level of grant available to employers will be reduced from 80% (up to a max. of £2,500):
From 1 July 2021 the grant available to employers reduces to 70% (up to a max. of £2,187.50).
From 1 August it will reduce again to 60% (up to a max. of £1,875).
Can an employer withdraw offers of employment or delay start dates for new recruits in light of the COVID-19 outbreak?
The first point to consider is whether a contract of employment has been entered into with the new recruits.
If the new recruits have accepted an offer of employment without conditions, and there is therefore a binding contract of employment, then notice would need to be served in order to terminate the contract before they commence employment. If there is a binding contract in force between the parties then any change in the start date will constitute a change in contractual terms. In this case, an employer would only be able to make a change to the start date either with the express consent of the new recruits or if it has an express contractual right to do so.
How should an employer go about making redundancies?
It may not always be possible for an employer to avoid making redundancies, even where alternatives are considered first. There are five principles for employers to follow when considering redundancies as a result of the COVID-19 pandemic:
Do it openly. The sooner people understand the situation, the better for everyone.
Do it thoroughly. People need information and guidance so ensure that you have trained staff representatives in how the redundancy process works.
Do it genuinely. Listen to people’s views before making a decision, be open to alternatives from individuals and unions and always feed back to them.
Do it fairly. Any redundancy procedure should be conducted fairly and without any form of discrimination.
Do it with dignity. Consider ahead how to handle the conversation and whether it will be face-to-face or remote. The way an employer makes redundancies says a lot about the organisation’s values.
Following today’s announcements by the UK Government and Scottish Administration, we consider the workplace issues in connection with the increased COVID-19 restrictions, including the impact on non-essential offices.
What About Non-Essential Offices?
In short, a move to stricter Level 4++ restrictions should NOT impose any new restrictions that prevent non-essential offices from continuing to operate as they have been or prohibit those staff that have been attending work from commuting to work.
The default position from the Scottish administration has always remained that non-essential offices should remain closed and that staff should work from home where possible, but there is nothing in the legislation (original or recent) that requires non-essential offices and/or manufactures to close OR which restricts the movement of people either within or between different tier areas in the same way that Part 3, Regulation 5 of the now revoked Health Protection (Coronavirus) (Restrictions) (Scotland) Regulations 2020 set 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.
However, Schedule 5 of the latest legislation, which sets out in detail the Level 4 restrictions lists which types of businesses are required to shut, makes no reference whatsoever to non-essential offices, therefore, provided you have undertaken the appropriate H&S risk assessment and introduced all necessary controls and measures to protect your staff, there is no requirement to shut non-essential offices.
What Issues Might Employers Face if Level 4 Restrictions Are Imposed?
Many of the issues facing employers as they stare down the barrel of further lockdown restrictions will be similar to those they faced when the impact of the COVID-19 pandemic started to impact on peoples’ lives and work back in March this year.
The immediate issue for employers of business workplaces that are not being specifically required to close is whether they should close voluntarily, in full or in part. The fact that the Furlough scheme has been extended to the end of March 2021 means this is a viable option and one that would enable them to retain staff for however long the stricter lockdown restrictions remain in place.
However, if closing the workplace isn’t an option, other issues employers may face include the following:
Staff either being or living with a “clinically extremely vulnerable’ or ‘clinically vulnerable’ person.
Childcare issues and staff claiming they can’t return to work because schools are closed.
Staff simply being extremely anxious about the risk posed by COVID-19 and frightened of a return to the office.
Staff expressing concerns relating to health & safety and what they perceive to be the employer’s failure to follow government guidance.
The appropriate approach employers should take will depend on the specific reasons set out by each employee, but employers will need to proceed with caution to avoid the risk of possible claims at the Employment Tribunal.
This evening Prime Minister Boris Johnson addressed the nation to confirm tougher lockdown restrictions will be introduced across England with effect from midnight 4 January 2021, suggesting England could “steadily” move out of the national lockdown from mid-February.
Tougher Lockdown Restrictions in England
Most areas of England are already subject to strict tier 4 restrictions but despite this, COVID infections have continued to rise at an alarming rate with 58,784 new cases of the virus having been recorded today (Monday 4 January 2021).
The Prime Minister’s announcement this evening follows a similar announcement by Scotland’s First Minister, during which she confirmed tougher lockdown restrictions being introduced across Scotland from midnight on 4 January 2021.
Key Changes to Lockdown Restrictions in England
Whereas local restrictions applied in England previously, these new, tougher restrictions will apply nationally across the whole of England.
It will now be a legal requirement to stay at home and not leave home except for essential purposes, such as shopping for basic necessities (as infrequently as possible), to undertake exercise alone or with members of your household only for a medical need to provide care or help a vulnerable person, or to travel to and from work, only if absolutely necessary and only if you are unable to work from home.
Clinically extremely vulnerable people should begin shielding again and those not able to work from home should not go into work at all.
Primary and secondary Schools will be closed to the majority of pupils from 5 January 2021, except for vulnerable children and those of key workers, and will move to remote learning only. Exams have been cancelled.
In making his announcement, the Prime Minister confirmed that the whole of the UK must now move to COVID Alert Level 5 “meaning that if action is not taken, NHS capacity may be overwhelmed within 21 days”.
Citizens across the United Kingdom are again being told to:
What About Restrictions Wales and Northern Ireland?
Wales imposed level 4 restrictions on 20 December 2020 and Scotland and Northern Ireland imposed tier 4 lockdown restrictions from midnight on 26 December 2020, but despite these restrictions COVID infections have continued to rise at an alarming rate with 54,990 new cases of the virus having been recorded on Sunday 3 January 2021. With the rest of the UK now subjected to even tougher lockdown restrictions similar to those introduced on 23 March 2020, it looks very likely that Wales and Northern Ireland will also introduce further restrictions and the respective administrations are meeting this evening to discuss the ongoing situation to decide what steps they will take.
From Darkness to Light – The Roll Out of the COVID-19 Vaccine
The newly approved coronavirus vaccine created by Oxford University and AstraZeneca is being rolled out across the UK today and the Prime Minister said that “if things go well”, the government expects to have offered a first vaccine dose to everyone in the four top priority groups in England by mid-February. This includes vaccinating all residents in a care home for older adults and their carers, everyone over the age of 70 and all frontline health and social care workers. The Scottish government has said it is “on track” to vaccinate everyone eligible in the first wave by spring 2021.
Support from Employment Law Services (ELS)
Advice & Guidance for Employers & Employees
The COVID-19 lockdown restrictions continue to present numerous and complex challenges for Employers and Employees alike. If you are experiencing challenges and require specialists advice, book a free consultation with our team of employment law specialists.
In a statement to the Scottish Parliament, the Scottish First Minister has announced that effective from midnight 4 January 2021, Scotland will be subjected to even tougher lockdown restrictions.
As the number of confirmed COVID-19 cases rises to record levels, fuelled mainly by a new more transmissible variant of the virus, even tougher lockdown restrictions in the rest of the UK look imminent and further announcements are expected.
Tougher Lockdown Restrictions in Scotland
As the number of confirmed COVID-19 cases rises to record levels, fuelled mainly by a new more transmissible variant of the virus, the Scottish administration has conceded that NHS Scotland services are struggling to cope and noted that if infection numbers continue to increase at current levels, there is a real risk the NHS will be overwhelmed, even with the existing contingencies and current level 4 restrictions, and this is why these tougher restrictions are necessary.
These new, tougher restrictions will remain in place until at least the end of January but may be extended if necessary.
Key Changes to Lockdown Restrictions in Scotland
In summary, these key changes will apply to those parts of Scotland currently in tier 4 restrictions (mainland Scotland) and those that will most adversely impact Employers in Scotland are as follows:
It will now be a legal requirement to stay at home and not leave home except for essential purposes, such as essential shopping, exercise or travelling to work where it is not possible to work from home.
The default position is that those who can work from home must do so, and nobody should travel to work unless it is not possible to work from home.
Strict travel restrictions will remain in place and travel between local authority areas remains unlawful, except where travel is for essential purposes.
Anyone previously required to shield and not able to work from home should not go into work at all. The chief medical officer will write to those concerned.
Schools will remain closed to the majority of pupils until 1 February and this will apply to all pupils – except vulnerable children, and children of key workers. It includes nursery schools, as well as primary and secondary schools. This decision which will be reviewed in mid-January.
What About Restrictions in England, Wales and Northern Ireland?
Most areas of England are now subject to tier 4 restrictions, Wales imposed level 4 restrictions on 20 December 2020 and Northern Ireland imposed tier 4 lockdown restrictions from midnight on 26 December 2020, but despite these restrictions COVID infections have continued to rise at an alarming rate with 54,990 new cases of the virus having been recorded on Sunday 3 January 2021.
Support from Employment Law Services (ELS)
Advice & Guidance for Employers & Employees
The COVID-19 lockdown restrictions continue to present numerous and complex challenges for Employers and Employees alike. If you are experiencing challenges and require specialists advice, book a free consultation with our team of employment law specialists.
As this remarkable year draws to an end, we look back at the various changes to UK employment law during 2020 and look forward to the changes to UK employment law we can expect in 2021.
Reflecting on the Events of 2020
On 23 March 2020, Prime Minister Boris Johnston announced unprecedented restrictions and a national lockdown across the United Kingdom to combat the rapid spread of COVID-19 (Coronavirus) and so began the most challenging nine months UK Employers have had to face since the outbreak of WW2.
it is impossible to understate just how difficult the last nine months have been due to the scourge that is the COVID-19 virus, but with COVID vaccines now underway throughout the UK, hopefully we have at last reached the beginning of the end of what has undoubtedly been a challenging year for us all.
Employment Law Changes in 2020
Long before COVID-19 appeared on the horizon, the mechanisms to introduce various changes to UK employment legislation were already underway and amidst the chaos of the COVID crisis, several significant changes to UK employment legislation were introduced.
Starting on 23 January 2021, when the European Union (Withdrawal Agreement) Act 2020 received Royal Assent, several more changes to UK employment laws followed, including:
Various emergency measures were implemented as a result of the 2019 coronavirus (COVID-19) pandemic, including new rules on statutory sick pay, a relaxation of holiday carry-over rules, and a government-funded furlough scheme to prevent job losses.
The National Minimum Wage (Amendment) Regulations 2020 increased the national living wage and national minimum wage rates.
The Social Security Benefits Up-rating Order 2020 increased statutory sick pay, maternity pay, paternity pay, adoption pay and shared parental pay rates.
The Employment Rights (Increase of Limits) Order 2020 (SI 2020/205) (Employment Rights Order) revised compensation limits for certain tribunal awards and other statutory payments.
The Employment Rights (Employment Particulars and Paid Annual Leave) (Amendment) Regulations 2018 (SI 2018/1378) came into force.
The “Swedish derogation” in the Agency Workers Regulations 2010 (which allowed employment businesses to avoid pay parity between agency workers and direct employees if certain conditions are met) was removed by the Agency Workers (Amendment) Regulations 2019 (SI 2019/724)
Temporary work agencies must provide agency work-seekers with a Key Information document, including information on the type of contract, the minimum expected rate of pay, how they will be paid and by whom under the Conduct of Employment Agencies and Employment Businesses (Amendment) Regulations 2019 (SI 2019/725
All workers were given the right to a written statement of terms under the Employment Rights (Miscellaneous Amendments) Regulations 2019 (SI 2019/731)
The threshold to request an information and consultation agreement under the ICE Regulations was lowered by the Employment Rights (Miscellaneous Amendments) Regulations 2019 (SI 2019/731) (
All termination payments above the £30,000 threshold are now subject to class 1A NICs
The Parental Bereavement (Leave and Pay) Act 2018 took effect.
The government issued guidance on the treatment of salaried-hours work for NMW purposes, noting that the effect of the amends to the National Minimum Wage Regulations 2015 (SI 2015/621) is to widen the range of pay arrangements that are compatible with workers being treated as performing salaried-hours work under the NMW rules.
Temporary work agencies must provide agency workers whose existing contracts contain a Swedish derogation provision with a written statement advising that, with effect from 6 April 2020, those provisions no longer apply.
Employment Law Changes in 2021
Looking to the year ahead, it seems very likely that the COVID-19 restrictions will continue to impact us for several more months to come, but notwithstanding the impact this will continue to have, there are also a number of legislative and employment case law developments that Employers should be aware of, mainly:
1 January 2021: New UK points-based immigration system takes effect. On the 19 February 2020 the Prime Minister and Home Secretary announced that a new global points-based immigration system, applicable to all non-British and Irish nationals will apply from 1 January 2021. This will follow the end of free movement rights for EEA nationals on 31 December 2020.
4 January 2021: Court of Appeal: Community Based Care Health Ltd v Narayan. On 4 January 2021, the Court of Appeal will consider whether a GP providing services to an NHS provider through a limited company had been correctly characterised as a worker under the Employment Rights Act 1996.
15 January 2021: Consultation on proposed sentencing guidelines for offenders guilty of modern slavery offences closes. On 15 October 2020, the Sentencing Council launched a consultation on proposed sentencing guidelines for offenders guilty of modern slavery offences including slavery, servitude, compulsory labour and trafficking people for exploitation purposes.
21 January 2021: EAT: Webster and another v United States. On 21 January 2021, the EAT is set to consider whether an employment tribunal had jurisdiction to hear claims for discrimination and unfair dismissal brought by two local British civilian personnel who were employed by the US Air Force on UK RAF bases and were covered by the common law doctrine of state immunity.
1 February 2021: HMRC to start publishing details of employers’ CJRS claims. HMRC will start publishing details of employers’ CJRS claims on GOV.UK from February 2021. The published information, relating to claim periods starting on or after 1 December 2020, will include the employer name, an indication of the value of the claim within a banded range and the company number (for companies and LLPs).
26 February 2021: The government’s consultation on measures to extend the ban on exclusivity clauses in employment contracts to cover those earning under the Lower Earnings Limit will close on 26 February 2021.
26 February 2021: The government’s consultation on measures to reform post-termination non-compete clauses in employment contracts will close on 26 February 2021.
1 April 2021: Proposed date for revision of the socio-economic duty under the EqA 2010 and final statutory guidance in Wales. On 22 November 2019, the Welsh Government published a consultation on commencing the socio-economic duty under section 1 of the Equality Act 2010 (EqA 2010). The consultation closed on 17 January 2020. The duty will enter into force on 1 April 2020, with interim guidance published at the same time.
6 April 2021: Extension of off-payroll working rules to private sector: commencement. As announced in the 2018 Budget, the extension of the rules to the private sector with effect from 6 April 2021 is intended to counter non-compliance with IR35. The measure shifts the compliance burden from the worker’s personal service company to the medium and large “client” organisations that they work for.
30 April 2021: COVID-19: Coronavirus Job Retention Scheme ends. On 17 December 2020, the Chancellor announced that the Coronavirus Job Retention Scheme (CJRS) will be extended until 30 April 2021.
Summer 2021: Report of government independent review of the Human Rights Act 1998 expected to be published. On 7 December 2020, the government announced the launch of an independent review of the Human Rights Act 1998 and whether it requires reform. This runs alongside the independent review of judicial review as part of the government’s commitment to examine the constitution and relationship between the government, Parliament and the courts.
9 November 2021: Supreme Court: Harpur Trust v Brazel. On 9 November 2021, the Supreme Court is due to hear an appeal against the Court of Appeal’s decision that an employment tribunal was wrong to find that “part-year workers” (those working only part of the year) should have their annual leave entitlement capped at 12.07% of annualised hours.
2 & 3 June 2022: Bank holiday: Queen’s Platinum Jubilee. On 12 November 2020, the government announced the creation of a Platinum Jubilee bank holiday on 2 and 3 June 2022, creating a four-day bank holiday weekend.
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Although our offices are currently closed for the festive period they will reopen again at 9.00am on Wednesday 6 January 2021. If you require advice on any of the issues noted above or any other employment matter, you can still book a free consultation with one of team of specialist from 6 January 2021 here – Book a Free Consultation
In the meantime, best wishes for a Happy New Year full of health, hope and happiness!
Yesterday’s announcement on changes to Scotland’s tiered lockdown restrictions, which saw several areas move up into higher tiers, introduced new travel restrictions, but what are the exceptions?
Yesterday we confirmed the new COVID-19 restrictions announced by the First Minister including the new restrictions on travel, which means that people living in Level 3 or Level 4 areas must not travel outside their own local authority area, except for essential purposes and those living elsewhere in Scotland must not travel to Level 3 or Level 4 areas, except in limited exceptional circumstances.
What Are the Exceptions to the Travel Restrictions?
This is a list of limited exceptions from the guidance not to travel into or out of Level 3 and 4 local authority areas, or to or from other parts of the UK. The exceptions are:
travel for work, or provide voluntary or charitable services, but only where that cannot be done from your home
travel to school, college, or university where teaching is not provided remotely
(To and from Level 3 areas but not Level 4) travel for under 18s sport
travel for essential shopping only where it is not possible in your local authority area – you should use on-line shopping or shops, banks and other services in your local area wherever you can
travel for healthcare, social care, childcare and other essential services, including recycling, but only if they are not available in your local area
travel to provide care or assistance to a vulnerable person
travel for shared parenting or travel between the two parts of an extended household
travel to meet a legal obligation, including attending court or satisfying bail conditions, or to participate in legal proceedings
travel for essential animal welfare reasons, such as feeding a horse or going to a vet
local outdoor informal exercise such as walking, cycling, golf, or running (in groups of up to 6 people from no more than 2 households) that starts and finishes at the same place
travel locally (within around 5 miles of your local authority area) to reach a place to take exercise outdoors
travel for weddings, civil partnership registrations, funerals and other “life events” (such as bar mitzvahs and christenings)
if you are a minister of religion or worship leader travel to your place of worship
(to or from Level 3 areas, but not Level 4) travel to your normal place of worship
travel to give blood at a Scottish National Blood Transfusion Service collection session
travel to transit through Level 3 and 4 areas by road or public transport if your journey begins and ends outside such an area
travel to move house
travel to avoid injury, illness or to escape a risk of harm
The information here is based on the current guidance at time of writing. The Scottish administration has stated that “updated” travel guidance will be published ahead of the travel regulations being introduced into law on Friday 20 November 2020. We will provide further clarity once the Scottish administration clarifies its position and updates its travel guidance on 20 November 2020.
What Next for Employers
If you have determined that you can keep your business open through the latest phase of lockdown restrictions and therefore require your staff to continue to attend their place of work going forward, you will need to be prepared to manage any staff issues that might arise.
It would fair to say that some employees may have concerns about remaining at work; some may have concerns relating to health and safety and what they perceive to be the employer’s failure to follow government guidance and some may simply be extremely anxious about the risk posed by COVID-19 and frightened of a remaining at their place of work and some may have unexpected childcare issues due to after school care services being withdrawn.
Whatever the issue you will need to adopt an appropriate approach dependent on the specific reasons set out by each employee, but you will need to proceed with caution. You should investigate fully, gather the facts, then take further advice before making any substantive decisions to avoid the risk of possible claims at the Employment Tribunal.
We’re Here to Help
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 assist you to navigate through the employment law minefield created by the COVID-19 crisis and comply with your legal obligations.
The main headlines from the Scottish First Minister’s announcement in Holyrood is that 11 local authority areas have been moved to the strictest Level 4 COVID-19 Restrictions, but the devil in the detail will have serious implications for many Employers who are not required to close.
At about 20 minutes into her announcement to the Scottish Parliament this afternoon, the FM confirmed that travel restrictions in Scotland will become law from Friday 20 November 2020, which will potentially have serious implications for those business not required to close under the new COVID-19 Restrictions.
Knock Out Blow for Employers
If the increase in COVID-19 Restrictions was a sharp jab for those businesses that were able to remain open, the introduction of these new travel restrictions could prove to be the knockout blow that forces them to close.
The new travel restrictions mean that people living in Level 3 or Level 4 areas must not travel outside their own local authority area, except for essential purposes and those living elsewhere in Scotland must not travel to Level 3 or Level 4 areas, except in limited exceptional circumstances.
These new travel restrictions, which are reminiscent of the travel restrictions imposed during the first national lockdown, mean that many employees who commute to work from one local authority area to another will no longer be able to do so lawfully and will instead need to stay at home. For example, somebody living in Paisley who works in Glasgow City Centre will no longer be able to lawfully travel to their place of work, unless they fall under one of the exceptions.
What Are the Exceptions?
At the time of writing this the Scottish administration has not updated its website to reflect these newly announced travel restrictions but based on what was only guidance until Friday it would be fair to assume that the list of exemptions will be similar to the ones currently published, but that isn’t clear or certain at this stage.
We will provide further clarity once the Scottish administration clarifies its position on what constitutes an exemption to the new travel restrictions.
What Next for Employers?
In the meantime, and until the Scottish administration provides more clarity, Employers will need to mindful that employees may not be able to travel to their place of work from Friday or may suddenly have childcare issues due to school aftercare services being withdrawn. Employers will need to take steps to manage the impact of this to avoid falling foul of employment legislation, which is not superseded by these latest developments.
We have already shared a variety of articles and resources to assist Employers to navigate through the COVID-19 crisis up to this point, but in light of these latest restrictions we can provide specific advice and support to any Employers facing new challenges these latest restrictions might create.
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 assist you to navigate through the employment law minefield created by the COVID-19 crisis and comply with your legal obligations.
New COVID-19 Restrictions for Scotland have this afternoon been confirmed by Holyrood. 11 local authority areas have been moved to Level 4 restrictions, 2 have moved down to Level 2 & 19 have remained the same.
From 6pm Friday 20 November, the new COVID-19 Restriction Level allocations will be:
Level 1: Comhairle Nan Eilean Siar Highland Moray Orkney Shetland
Level 2: Aberdeen City Aberdeenshire Argyll and Bute Borders Dumfries and Galloway
Level 3: Angus Clackmannanshire Dundee City Edinburgh Falkirk Fife Inverclyde North Ayrshire Perth and Kinross
East Lothian and Midlothian will remain in Level 3 until Tuesday 24 November when they will move to Level 2.
Level 4: East Ayrshire East Dunbartonshire East Renfrewshire Glasgow North Lanarkshire Renfrewshire South Ayrshire South Lanarkshire Stirling West Dunbartonshire West Lothian
Support for Employers
The COVID-19 lockdown restrictions and extension to the furlough scheme 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 assist you to navigate through the employment law minefield created by the COVID-19 crisis and comply with your legal obligations.
Businesses across the Central Belt of Scotland are bracing themselves ahead of today’s announcement from the leader of the Scottish administration, Nicola Sturgeon, when it is anticipated she will confirm that large parts of the West of Scotland will be moved up to strict Level 4 COVID-19 restrictions, the highest tier of coronavirus restrictions possible.
What Does the Law Say About Level 4 Restrictions?
When considering what implications, if any, a move to strict Level 4 restrictions might have for Scottish businesses, we need to look to the current Coronavirus legislation. Originally the Health Protection (Coronavirus) (Restrictions) (Scotland) Regulations 2020 set out the legal requirement to restrict movement and/or close premises and businesses during the emergency period. This has since been revoked and replaced by The Health Protection (Coronavirus) (Restrictions and Requirements) (Local Levels) (Scotland) Regulations 2020, which sets out the new legislation in respect the tiers of restrictions now in place.
Which Businesses Will Be Forced to Shut?
If Ms Sturgeon does decide to impose tighter restrictions across the Central Belt, many businesses that have only just started to recover from the previous lockdown will be forced to shut again, just as they were preparing for a much-needed uplift in trade in the lead up to Christmas.
This includes all non-essential shops, restaurants, bars, businesses which provide close contact services such as gyms, hairdressers, barbers, beauty, nail, massage and complimentary therapies, as well as those responsible for providing holiday accommodation, whether in a hotel, hostel, bed and breakfast accommodation, holiday apartment, home, cottage or bungalow, campsite, caravan park or boarding house.
In short, a move to strict Level 4 restrictions should NOT impose any new restrictions that prevent non-essential offices from continuing to operate as they have been, require that staff work from home or prohibit staff from commuting to work.
The default position from the Scottish administration has always remained that non-essential offices should remain closed and that staff should work from home where possible, but there is nothing in the legislation (original or recent) that requires non-essential offices and/or manufactures to close OR which restricts the movement of people either within or between different tier areas in the same way that Part 3, Regulation 5 of the now revoked Health Protection (Coronavirus) (Restrictions) (Scotland) Regulations 2020 set 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.
However, Schedule 5 of the latest legislation, which sets out in detail the Level 4 restrictions lists which types of businesses are required to shut, makes no reference whatsoever to non-essential offices, therefore, provided you have undertaken the appropriate H&S risk assessment and introduced all necessary controls and measures to protect your staff, there is no requirement to shut non-essential offices.
What Guidance is Available for Employers?
There is sector specific guidance available on the official Scottish Administration website, but no specific guidance for non-essential offices and call centres. The official guidance states that all business workplaces that are not being specifically required to close should consider a set of key questions – and at all times work on this precautionary basis:
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 the 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?
If your business is covered by the sector specific guidance, you should follow that. If not, you should keep checking and reviewing the risks to yourself, your employees, your suppliers and your customers.
What Issues Might Employers Face if Level 4 Restrictions Are Imposed?
Many of the issues facing employers as they stare down the barrel of further lockdown restrictions will be similar to those they faced when the impact of the COVID-19 pandemic started to impact on peoples’ lives and work back in March this year.
The immediate issue for employers of business workplaces that are not being specifically required to close is whether they should close voluntarily, in full or in part. The fact that the Furlough scheme has been extended to the end of March 2021 means this is a viable option and one that would enable them to retain staff for however long the stricter lockdown restrictions remain in place.
However, if closing the workplace isn’t an option, other issues employers may face include the following:
Staff either being or living with a “clinically extremely vulnerable’ or ‘clinically vulnerable’ person.
Childcare issues and staff claims they can’t return to work because children need to self-isolate.
Staff simply being extremely anxious about the risk posed by COVID-19 and frightened of a return to the office.
Staff expressing concerns relating to health & safety and what they perceive to be the employer’s failure to follow government guidance.
The appropriate approach employers should take will depend on the specific reasons set out by each employee, but employers will need to proceed with caution to avoid the risk of possible claims at the Employment Tribunal.
Support for Employers
The COVID-19 lockdown restrictions and extension to the furlough scheme continue to present numerous and complex challenges for Employers.
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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 assist you to navigate through the employment law minefield created by the COVID-19 crisis and comply with your legal obligations.
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