Second Lockdown - What employers need to know

 

Following the Government’s announcement of a new national lockdown on the 31^st October 2020 we consider the implications for employers, including the extension of the Coronavirus Job Retention Scheme and how to protect those employees who are most vulnerable to COVID-19.

The government has announced new national restrictions that will apply from 5 November 2020 and we understand will end on 2 December 2020. 

Closure of businesses

The government has ordered that certain businesses and venues must close this includes non-essential retail, indoor and outdoor leisure facilities, entertainment venues, hair, beauty and nail salons, and hospitality venues. A full list of the business closures will be published and set out in law.

Working from home

The Guidance states that ‘everyone who can work effectively work from home must do so’. This is different to the message in September which said that office workers who can effectively work from home should do so over the winter.  

Some employers may question the significance of the word “effectively” and whether this means, for example, that those who work more efficiently in the office may continue to do so. However, the Guidance gives those who work in “critical national infrastructure, construction or manufacturing” and “essential services, including education settings” as examples of those exempted from the requirement to work from home. In our view, this suggests that only those in highly practical roles which cannot be performed at home may continue to work outside their home. It is, therefore, likely that the majority of office workers will be required to work from home for most, if not all, of their working time.

The Guidance confirms that those whose jobs involve working in other people’s homes, such as nannies and cleaners, may continue to go to work.

Protecting those who are more risk of COVID-19

The Guidance identifies three categories of employees who are considered to be at higher risk of severe illness from COVID-19:

• people over the age of 60

• those who are “clinically vulnerable” to COVID-19 (including anyone with an underlying health condition who is instructed to get a flu jab each year on medical grounds, certain other medical conditions and also pregnant women) and

• those who are “clinically extremely vulnerable” to COVID-19 (people with specific, serious health conditions).

Those who are clinically extremely vulnerable to COVID-19 are advised to work from home for the duration of the national restrictions. Those who cannot work from home “are advised not to go to work and may be eligible for Statutory Sick Pay (SSP) or Employment Support Allowance (ESA)”. The Guidance confirms that a full new guidance will be published on 2^nd November 2020 and that the Government will write to everybody who is clinically extremely vulnerable.  

Those over age 60 and those who are clinically vulnerable to COVID-19 are advised to be especially careful to follow the rules and minimise their contacts with others. However, the Guidance does not address the situation where such a person is unable to work from home, which suggests that such individuals should continue to go to work providing their workplace is COVID-secure.

Job Retention Scheme extended

The Coronavirus Job Retention Scheme (CJRS) was due to end on 31 October 2020 and will now remain open until [31 March 2021 as announced on 5th Nov], with furloughed employees receiving 80% of their salary up to a maximum of £2,500 per month. Employers will only be required to pay National Insurance Contributions (NICs) and pension contributions in respect of any employees furloughed in November, making the CJRS more generous than in October (when employers were also required to contribute 20% of the employee’s salary). The Guidance also confirms that employers will retain the option of flexibly furloughing employees. We await further clarification as to the eligibility criteria in respect of the extended CJRS.

Job Support Scheme postponed

The Guidance explains that the JSS will not be introduced until after the CJRS ends. The JSS was expected to apply from 1 November 2020, and many employers had already agreed a ‘temporary working agreement’ under the JSS with eligible employees to take effect on that date. Given that the introduction of the JSS has now been postponed, and that the extended CJRS is more generous from both an employer and employee perspective, it is expected that employers will seek to move their employees from a ‘temporary working agreement’ under the JSS to a ‘furlough agreement’ under the CJRS. In most cases, this will involve further changes to the employee’s contract of employment.

What if employees are serving notice?

If a member of staff has been made redundant they can be rehired and furloughed if they were employed as of the 23^rd September 2020 and on payroll on or before the 30^th October 2020.

In view of this, some employers may seek to revoke notices of dismissal and furlough those employees on a full-time basis to be eligible for 80% of their salary subject to their agreement. 

Vaishali Thakerar, Head of Employment, Lawson-West Solicitors, Leicester comments:

"The good news is that the Furlough scheme has been extended to December (but with no specific date confirmed), the bad news is that more people are likely to need it and it will be more expensive for the Government than the replacement Job Support Scheme.

The Government is obviously trying to help as many businesses and employees as possible by extending the CJRS, and with the closure of more businesses highly likely now, the second lockdown in England is especially bad news for companies in the hospitality, leisure and aviation sectors and the spin-off businesses who supply them.

We will see an increase in failing businesses in the weeks to come, and hopefully the 2nd December lockdown end date will not extend further into the Christmas period, with businesses relying on Christmas income to help survive. Without it, it could be the final straw for many."

 

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