Prime Minister Boris Johnson has announced this evening a second national lockdown for England as the UK passes one million Covid-19 cases.
In a press conference from Downing Street this evening, Prime Minister Boris Johnson has announced that with effect from Thursday 5 November 2020, there will be a National Lockdown across England until at least 2 December 2020, subject to the new measures being approved in Parliament early next week.
Key Lockdown Measures
Lockdown will come into force on 5 November and last until 2 December 2020.
The CJRS (Furlough Scheme) will not end today but will now be extended until 2 December*
Non-essential retail and hospitality will close.
Pubs, bars and restaurants to close, except for takeaways.
Schools, colleges and universities will remain open.
Households will not be allowed to mix indoors or outdoors.
Shielding measures will not be re-introduced, but vulnerable people or those aged over 70 are told to be especially careful.
* During his press conference, the Prime Minister failed to clarify whether the extension of the Furlough Scheme until 2 December 2020 was limited to England, or if it would be extended to Scotland, Wales and Northern Ireland.
The Furlough scheme was due to end at midnight tonight and thousands of Employers throughout the UK will have already taken steps to have staff return to work next week, potentially on a short time working basis, expecting to take advantage of the new Job Support Scheme.
The lack of clarity around the extension of the Furlough Scheme and whether this includes Scotland, Wales and Northern Ireland will have left thousands of Employers wondering what the status of their staff will be when they return to work next week; will they be flexibly furloughed or will they be on short-time working and which grant scheme will Employers need to use to reclaim wage costs?
It seems unlikely that the extension of the Furlough Scheme would be limited to England, but until Downing Street clarify the position Employers outside of England will be wondering what the status of their staff will be when they return to work next week.
Death by a Thousand Cuts for Thousands of UK Employers
Employers have already had to endure 7 months of COVID-19 restrictions with thousands of businesses having been forced to remain closed since March and thousands more, who were eventually able to re-open as restrictions were eased, forced to close again when the localised tiered system of COVID-19 restrictions was introduced.
These latest restrictions announced by the Prime Minister will see England returning to a national lockdown reminiscent of the restrictions imposed across the whole of the UK back in March, the main difference being schools and colleges will be allowed to remain open.
In Scotland, the new 5-tier restrictions come into force on Monday 2 November 2020 and in advance of this, First Minister Nicola Sturgeon has issued new advice that people should not travel to or from England, except for essential purposes.
In Wales, First Minister Mark Drakeford said that his cabinet will meet on Sunday to “discuss any potential border issues for Wales in light of any announcement by No 10” but confirmed that the 17-day “firebreak” there will end as planned on 9 November.
We will continue to monitor developments and provide an update once the position becomes clearer.
Support for Employers
If you require any advice or support with any employment matter, COVID related or otherwise, please contact our team of employment law specialists to get clear and purposeful advice.
If you are an employee and find yourself in a situation where you have been advised by your employer that they want to bring the employment relationship to an end, by reason of redundancy or by way of a Settlement Agreement, or you believe your employment rights have been breached in any way, the team at Employment Law Services (ELS) can help you.
With the Coronavirus Job Retention scheme due to end on 31 October 2020, Employers have one week to decide what to do with staff who are currently furloughed and/or flexibly furloughed.
Following yesterday’s announcement by the Chancellor, HMRC has published a policy paper containing more details on the Job Support Scheme which now defines the scheme is two ways:
JSS Open; and
JSS Closed
Under JSS Open, an employee will need to work at least 20% (no longer 33%) of their normal hours. They will receive normal pay for the hours they work, and two-thirds of pay (subject to a cap which bites against those earning more than £3,125 a month) for the hours they do not work. For that two-thirds top-up, the government will pay 61.67% and the employer will pay 5%, plus NI and pension contributions on the full amount. That is a significant change from the previous 50:50 split towards the two-thirds top-up, shifting the financial cost overwhelmingly to the public purse. There must be a written agreement between employer and employee, agreeing to the changes.
Under JSS Closed, the position remains that the employee will receive two-thirds of their normal wages, funded by the government (again, with a cap biting against those who earn more than £3,125pm). The employer will have to pay the NI and pension contributions on that amount. Again, there must be a written agreement between employer and employee, agreeing to the changes.
The policy paper provides some detail about how the scheme will operate, eligibility criteria and how to calculate pay, but full details are still to be confirmed and Treasury Direction is expected to be issued soon.
Decision Time for Employers
In the meantime, Employers will need to decide what to do with who are currently furloughed and/or flexibly furloughed and our multi-award-winning team of employment law specialists are ready to help you!
We can give you advice and support on:
Ending furlough and/or flexible furlough
Employment contract changes necessary to utilise the Job Support Scheme
Drafting and providing written agreements between employer and employee, agreeing to the changes.
The correct redundancy processes to ensure fairness and legal compliance
Utilising settlement agreements as an alternative to a full blown redundancy process.
On Thursday 22 October 2020 the Chancellor announced a package of further economic measures to support businesses affected by the ongoing COVID-19 pandemic.
The package announced by the Chancellor in a statement to the House of Commons includes significant changes to the short-time working Job Support Scheme (JSS), expanded grants for businesses in high-alert areas, and increased grants for the self-employed.
The announcement of increased Government contributions under the JSS comes just two weeks after an extension to the Scheme was announced and will be warmly welcomed by many employers that were facing the prospect of having to make redundancies at the end of October.
Under the JSS, an employee will now only need to work and be paid for at least 20% of their normal hours, not 33% as originally announced. For the employee’s remaining (unworked) hours, the government will provide up to 61.67% of the employee’s normal wages, up to £1,541.75 a month (up from £697.92 as originally announced). The employer will contribute the other 5% of the unworked hours (not 33% as originally announced). These changes are being made with a view to enabling businesses to retain staff and avoid redundancies. The JSS for businesses legally required to close their premises remains unchanged.
There has been no change to the eligibility requirement for the JSS, such that all small and medium sized businesses will be eligible. Larger businesses are only eligible if their turnover has fallen during the pandemic. Eligible employers will be able to claim under both the JSS and the Job Retention Bonus (for employees who have previously been furloughed).
The government will also increase the amounts available under the next tranche of the Self Employment Income Support Scheme (SEISS). For those currently eligible for SEISS and who continue to actively trade but face reduced demand, the initial taxable grant will now be worth 40% of average monthly trading profits, up to a total of £3,750, covering the period from November 2020 to January 2021. The level of the second grant covering February to April 2021 will be set at a later date.
In England, business grants of up to £2,100 a month will be made available for businesses in the hospitality, accommodation and leisure sectors which have not been required to close but are impacted by restrictions in high-alert areas. These grants will be available retrospectively for areas which have already been subject to restrictions. The grants will be administered and distributed by local authorities, who will determine which businesses are eligible for funding.
In Scotland, the First Minister announced that the current temporary restriction will remain in place until 2 November 2020, by which time they will have published details of their 5 tier COVID restrictions alert system. In the meantime, funding for business grants over this period will be increased proportionately. The COVID-19 Restrictions Fund will now provide one-off grants of up to £4,310 to businesses required to close by the regulations in Scotland and for businesses that remain open but are directly impacted by the restrictions, the maximum hardship fund grant will increase to £2,155. In addition, grants of £1,650 will help those businesses that are required to close to meet the 20% employer’s contribution they are required to pay under the UK Government’s CJRS.
However, these one-off grants in Scotland are for the period until 2 November 2020 and the Scottish administration has yet to clarify and/or confirm whether it intends to mirror the monthly grant scheme introduced in England.
We will be updating our FREE COVID-19 Guidance for Employers and comprehensive FAQs document in the coming days to help employers understand the key elements of the new JSS to assist them in planning what to do when the furlough scheme comes to an end on 31 October 2020.
In the meantime, if you require any advice or support with introducing short time working via the Job Support Scheme, redundancies or any other employment matter, please contact our team of employment law specialists to get clear and purposeful advice.
The UK Government appear to be somewhat quicker off the mark with publishing details about the new Jobs Support Scheme announced earlier today by the Chancellor than they were when the CJRS was first introduced. Two Government publications in particular provide further details; the Job Support Scheme Factsheet and the Winter Economy Plan.
We’ve taken a look at the initial publications and have put together a summary of the key points.
Compliance with Employment Law
One key observation from this initial guidance is that Employers must agree the new short time working arrangements with their staff, make any changes to the employment contract by agreement, and notify the employee in writing. This agreement must be made available to HMRC on request.
It is essential, therefore, that where Employers are looking to utilise the new Job Support Scheme and introduce short time working, the comply fully with the relevant employment legislation when introducing it with their staff so as to avoid the risk of potential claims at the Employment Tribunal AND falling foul of HMRC and having claims withheld or required to be repaid.
Eligibility for the Job Support Scheme
All employers with a UK bank account and UK PAYE schemes can claim the grant, but large businesses will have to meet a financial assessment test to determine whether their turnover is lower now than it was before experiencing difficulties from COVID-19. SMEs are exempt from the financial assessment.
All employees must have been on the employer’s Real Time Information submission on or before 23 September 2020.
How to Claim the Job Support Scheme
The scheme will be open from 1 November 2020 to the end of April 2021. Employers will be able to make a claim online through Gov.uk from December 2020. They will be paid on a monthly basis.
Grants will be payable in arrears meaning that a claim can only be submitted in respect of a given pay period, after payment to the employee has been made and that payment has been reported to HMRC via an RTI return.
What Can Be Claimed Under the Job Support Scheme
For every hour not worked the employer and the government will each pay one third of the employee’s usual pay, and the government contribution will be capped at £697.92 per month.
Employees using the scheme will receive at least 77% of their pay, where the government contribution has not been capped. The employer will be reimbursed in arrears for the government contribution.
The minimum 33% threshold hours for which an employee must work may be increased in months 4-6 of the scheme.
Working patterns can vary, but each short time working arrangement must cover a minimum period of seven days.
The government’s grant will not cover Class 1 employer NIC or pension contributions, although they remain payable by the employer.
Employees cannot be made redundant or put on notice of redundancy during the period within which their employer is claiming the grant for that employee.
HMRC Checks
HMRC will check claims. Payments may be withheld or need to be paid back if a claim is found to be fraudulent or based on incorrect information. Grants can only be used as reimbursement for wage costs actually incurred.
More details of the new Jobs Support Scheme are emerging, as the Government publishes different papers, and we shall continue to review the details as they emerge and provide updates accordingly.
Support for Employers
We can assist Employers with making the necessary changes to the employment contract and ensuring these changes are correctly implemented. 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.
The Chancellor has today announced a further package of financial support measures intended to protect jobs and support businesses.
Outlined below is a summary of the key new measures, but this is not the formal Government statement. Once the details have been revealed we shall provide further information.
New Job Support Scheme Announced by the Chancellor
Below is a summary of the key points announced today by the Chancellor.
The CJRS (Furlough Scheme) will end on 31 October 2020, as planned
A new Jobs Support Scheme will come into effect from 1 November 2020, aimed at retaining “viable” jobs and intended to support wages for people in work and to provide employers with the option to introduce short time working, opposed to making redundancies.
Employees must work at least one-third of their normal hours, which must be paid as normal by their employer, with a further top up of their salary being subsidised by the government. The Chancellor in his announcement stated this top up would equate to two-thirds, but HM Treasury have just tweeted the top up would only be one-third, bringing total salary up to just 77%. We await the official guidance with anticipation!
All SMEs are eligible and so too are larger businesses whose turnover has fallen.
The new Scheme will be open to all business throughout the UK, regardless of whether they have previously used the CJRS (Furlough Scheme and will run form 6 months from November.
Employers participating in the new Jobs Support Scheme will still be able to claim the Jobs Retention Bonus.
The self-employed grant is being extended on similar terms and conditions to the new Jobs Support Scheme.
Cashflow Assistance Also Announced by the Chancellor
In addition to the new Jobs Support Scheme, the Chancellor also announced four further steps intended to provide cashflow assistance for businesses. The key points are:
Business Bounce Back Loans can be extended from uptown 6 to 10 years to reduce the monthly repayment amounts that would have otherwise been due and businesses can seek to defer the start of repayments for up to 6 months beyond the current arrangements.
The government guarantee for Business Interruption Loans will be extended for up to 10 years and the deadline for applying for all loan schemes is being extended to the end of this year.
Businesses that previously utilised the VAT deferral scheme can now spread the repayment of the deferred VAT bills over 11 months.
VAT shall remain at 5% for hospitality and tourism business until the end of March 2021.
At the time of writing this the Chancellor is still answering questions from MPs in the House of Commons, so the full details of the various measures he has announced are not yet available.
Once the formal Press Release, guidance and any draft legislation is released, we shall review it thoroughly and provide further updates / clarity.
Support for Employers
The COVID-19 lockdown restrictions and various government schemes being introduced by the UK government 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.
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.
As lockdown restrictions began to ease across the UK many employers started to consider reopening businesses and bringing staff back into workplaces, but with the recent spike in COVID-19 cases many are rethinking their position.
While the UK government called for a coordinated approach to the lifting of lockdown measures, differences have emerged between the four parts of the UK. The devolved administrations in Wales, Scotland and Northern Ireland have made their own assessments on lifting measures in their countries and each has released lockdown in different stages.
It should also be noted that, even as nationwide lockdown measures have been lifted, local outbreaks have necessitated reactive measures to be implemented to control the rate of transmission of COVID-19 on a regional or local basis.
This article has been prepared to anticipate and address issues that employers may face as the lockdown measures that have affected their businesses and workforces are eased, takes account of government guidance on when and how businesses can emerge from lockdown, and is intended to assist employers as they prepare for a phased return to work.
The Legal Requirement to Close Businesses & Premises in Scotland
There is an array of legislation which deals with the various issues that are likely to arise as a result of the COVID-19 pandemic:
The Coronavirus Act 2020
The Coronavirus (Scotland) Act
The Coronavirus (Scotland) (No.2) Act (the Act)
The Health Protection (Coronavirus) (Restrictions) (Scotland) Regulations 2020 (SSI 2020/103) (Principal Regulations)
The Health Protection (Coronavirus) (Restrictions) (Scotland) Amendment (No 10) Regulations 2020
The Statutory Sick Pay (General) (Coronavirus Amendment) (No 3) Regulations 2020 (SI 2020/427)
The Employment Rights Act 1996
The Health & Safety at Work etc. Act 1974
The workplace guidance for Scotland differs from the English equivalent so it is important that the Scottish guidance is considered where the employer operates in Scotland. A UK-wide employer cannot assume that following the guidance applicable in England will meet the Scottish requirements.
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.
Emerging from Lockdown in Scotland
At the early stages of the pandemic, the Scottish Administration established it’s ‘Route Map’ for the easing of lockdown restrictions in Scotland. This Route Map comprises 4 phases.
Phase 1: Commenced 28 May
Phase 2: Commenced 18 June
Phase 3: Commenced 9 July
Phase 4: TBC
On 9 July Scotland moved to Phase 3 and regular 3-week reviews have been undertaken since then to determine what further restrictions, if any, can be eased. In their latest assessment of the status of the pandemic, the Scottish Administration has determined that Scotland does not yet meet the criteria for progressing to Phase 4 of the “Route Map”.
The latest guidance and measures from the Scottish Administration, which was last updated on 14 September 2020, came into effect immediately and extends for at least 6 months, unless revoked, but it did NOT impose any new restrictions on businesses and premises not already covered by existing guidance.
Accordingly, those business that must remain closed under the current regulations remain as follows:
soft play centres
nightclubs
indoor theatres and concert halls
Businesses and Premises That CAN Reopen in Scotland
Since 24 August 2020 various businesses and premises have been able to reopen as part of the progression of Phase 3 of the “Route Map”. This includes:
Outdoor contact sports (all ages) can resume following guidance of relevant sports bodies.
Outdoor seated live events and outdoor open space live events – with physical distancing, enhanced hygiene, and restricted numbers – following guidance. Work will be undertaken with the sector on options for larger pilot events.
Driving lessons can resume – following guidance.
Child contact centres can re-open – following guidance.
Face-to-face advice services, including Citizens Advice, can resume – following guidance.
Bingo halls can re-open with physical distancing and following guidance.
Amusement arcades and casinos can re-open following guidance (incl. enhanced hygiene).
Snooker/pool halls and indoor bowling can re-open – following guidance (incl. enhanced hygiene).
Funfairs – both static and travelling – can re‑open, following guidance.
Gyms (indoor) can re-open – following guidance.
Swimming pools can re-open – following guidance.
Indoor sports courts can reopen – following guidance, incl. skating, dance studios: Children (0-12) years can resume all activity; adults and young people (12+) can resume non-contact activity only.
Indoor activities for children and young people (unregulated) can resume subject to guidance that will vary by activity. Indoor youth work can resume for young people in line with guidance.
So, Can Non-Essential Offices in Scotland Reopen?
The official Scottish Administration website explicitly states that, apart from those businesses and premises that must remain closed (listed above), it is not compelling other businesses to close, however, it also states that remote working should remain the default position for those who can do so.
The Scottish First Minister was quoted as saying, “A full return to office working, given the numbers involved, would significantly increase the risk of indoor transmission. It would also make buses and trains significantly busier and increases transmission risks there too. Our conclusion therefore is that a return to working in offices, unless that work is essential and cannot be completed at home, presents too great a risk at this time”.
The official guidance therefore appears to be somewhat unclear when it comes to the reopening of non-essential offices. 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.
So, can non-essential offices reopen? In short, YES. There is nothing in the legislation and/or guidance that says they cannot reopen and no reference to non-essential offices in Schedule 1 of the Regulations explicitly requiring them to remain closed. Therefore, the decision to reopen non-essential office is entirely in the hands of business owners.
What Should Employers Consider When Reopening Non-Essential Offices
When considering whether to reopen non-essential offices and bring staff back to work, it is important that Employers consider the following questions carefully:
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?
Once an Employer has decided to reopen its offices they should, in the very first instance, look for any sector specific guidance and follow it. Where there is no sector specific guidance, Employers should ensure that as a minimum, they take the following steps:
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.
Consult with your employees before you reopen – this is a legal requirement.
Put in place infection and control measures.
After re-opening, keep checking and reviewing.
Emerging from Lockdown in England
For England, the UK Government’s Recovery Strategy was published on 11 May 2020. The “cautious roadmap” which was intended to ease existing lockdown measures in a safe and measured way included a step-by-step approach to lifting restrictions on businesses.
On 17 July 2020, the UK Government published the next chapter in our plan to rebuild: The UK Government’s COVID-19 recovery strategy. This set out the next stages of the government’s plan following the measures announced in the initial Recovery Strategy through which the government hopes to see a return towards normality in Spring 2021. The next stages, which will apply in England are subject to the caveat that a resurgence of COVID-19 may mean that they cannot be followed safely (the government is preparing for different scenarios). The government warns people and businesses to be prepared for the eventuality that the timetable for reopening is paused, or for changes to be reversed in a targeted way, to respond to new outbreaks. However, the government will only do this if absolutely necessary.
From 1 August 2020, the UK Government took the following steps in England:
Employers were given more discretion on how they ensure employees can work safely. While working from home is one way to do this, workplaces can also be made safe by following COVID-19 Secure guidelines.
Most remaining leisure settings (bowling, skating rinks and casinos) could reopen in accordance with COVID-19 Secure guidelines. However, particularly high-risk activities and settings such as nightclubs will not reopen at this stage but will be kept under review.
Subject to the success of pilots, indoor performances to a live audience will restart in accordance with COVID-19 Secure guidelines.
All close contact services resumed (including any treatments on the face such as eyebrow threading or make-up application) with steps taken to ensure this can be done as safely as possible and in line with COVID-19 Secure guidelines.
Pilots were undertaken in venues with a range of sizes of crowds, particularly where congregating from different places, including sports stadia and business events. These will be evaluated to inform future decisions on any further relaxation of the rules. If progress is made in line with expectations, pilots will expand to build up to and prepare for a full, socially distanced return in the autumn.
Schools, nurseries and colleges reopened for all children and young people on a full-time basis.
Until 9 September 2020, the COVID-19 Secure guidelines applicable in England weresupported by five key steps to working safely which employers needed to implement. They were:
Carry out a COVID-19 risk assessment
Develop cleaning, handwashing and hygiene procedures
Help people to work from home
Maintain two metre social distancing, where possible
Where people cannot be two metres apart, manage transmission risk
On 9 September 2020, as part of an attempt to simplify the COVID-19 Secure guidelines, the five steps to working safely were withdrawn by the government. However, since the matters covered by the five steps to working safely are still dealt with in the COVID-19 Secure guidelines for each workplace setting (see Application of COVID-19 Secure guidelines in specific workplace settings), their withdrawal does not significantly affect an employer’s obligations under the guidelines.
However, between 9 and 11 September 2020, a set of priority actions to protect staff and customers were added to each of the workplace specific COVID-19 Secure guidelines.
The priority actions contain the following list of seven steps which are consistent across all workplace settings:
Complete a COVID-19 risk assessment. Share it with staff.
Clean more often. Increase how often surfaces are cleaned, especially those that are being touched a lot. Ask staff and customers to use hand sanitiser and wash their hands frequently.
Ask customers to wear face coverings in any indoor space or where required to do so by law. That is especially important if customers are likely to be around people they do not normally meet.
Make sure everyone is social distancing. Make it easy for everyone to do so by putting up signs or introducing a one-way system that customers can follow.
Increase ventilation by keeping doors and windows open where possible and running ventilation systems at all times.
Take part in NHS test and trace by keeping a record of all customers for 21 days. From 18 September, this will be enforced in law (see Keeping records of staff and customers).
Turn people with coronavirus symptoms away. If a staff member (or someone in their household) or a customer has a persistent cough, a high temperature or has lost their sense of taste or smell, they should be isolating.
As well as these seven steps, the COVID-19 Secure guidelines for each workplace setting contain a further set of priority actions which are tailored specifically to the relevant workplace.
These are different in each set of guidelines but cover matters such as encouraging the use of contactless payments, reducing crowding, limiting the handling of goods or crockery and cutlery, and lowering background noise.
Typical Challenges Employers Might Face When Reopening Offices
With many staff either being furloughed or working remotely for so long, informing them they are required to return to work may present some challenges, such as:
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 until nurseries reopen.
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 will depend on the 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.
Conclusion
Employers should be prepared to be flexible as they put measures in place given the likelihood that COVID-19 will remain a risk for the foreseeable future and resurgence in infections may result in them facing further lockdowns. It is important also to remember that:
The COVID-19 pandemic advice from the UK Government and the Scottish Administration is continually changing.
The published government / administration guidance does not, except where explicitly stated otherwise, supersede existing employment legislation so it is important to seek appropriate legal advice, where necessary.
It is unclear how long the current level of restrictions might last. The fact the Furlough Scheme comes to an end on 31 October presents further challenges for employers and individuals alike.
The longer-term implications of the COVID-19 pandemic are yet unknown, but it is clear that they will be felt for months, and possibly years to come.
Support for Employers
The COVID-19 pandemic an emerging from lockdown continues to present numerous and complex challenges for Employers.
If you are an Employer and require advice and support on any employment matters, 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.
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