January 2021: The start of a new year; a year which was hoped by so many to be the start of a return to business as normal. However, in recent weeks, it had become increasingly clear that the coronavirus pandemic would continue to have a significant impact on employers for many months to come. This was cemented on 4 January 2021 with the announcement by the Prime Minister of a new national lockdown, to take effect on 5 January 2021 (becoming law from 6 January 2021) and expected to last until at least mid-February 2021.
For employers, keeping pace with the developments is an ongoing feat of endurance. Here we round up the latest information and the business support and guidance available.
The new national lockdown means that a significant proportion of businesses must close. This includes non-essential retail, hospitality venues, accommodation providers with some limited exceptions, leisure and sports facilities, entertainment venues, indoor attractions and personal care providers such as hair and beauty service providers. The government will set out the full list of businesses which must close, and those which can remain open, in an updated guidance document.
Prime Minister’s address to the nation (4 January 2021)
Closing certain businesses and venues in England (due to be updated)
Going to work
The prevailing message of the new national lockdown is, ‘Stay at home’. However, employees whose roles cannot reasonably be done at home are allowed to attend their place of work. This position is similar to that which applied under the Tier 4 rules. This means that many employees whose jobs clearly cannot be performed at home can still attend work as normal, including tradespeople who work at other people’s homes. However, employers will need to very carefully assess whether employees whose job can, on the face of it, reasonably be done at home should be required, or allowed, to work at a workplace. Possible situations where it may not be reasonable to work at home are where an employee does not have the space or equipment to do so effectively, or where an employee’s wellbeing would significantly suffer from home working.
For businesses which remain open, the government has also updated its Working Safely guidance to assist employers to understand and implement COVID-Secure workplaces.
Leaving home without a reasonable excuse could lead to a Fixed Penalty Notice of £200 for the first offence, doubling and rising to a maximum of £6,400 for repeat offences.
The status of schools is likely to remain in a state of flux for some time.
The very recent announcements in respect of school closures in England have very quickly been replaced with a new direction: that both primary and secondary schools must close until at least February half-term.
In the immediate term, this presents many employees with significant childcare concerns and a need to support children with home schooling. Employers should encourage open discussions with employees about the impact of the school situation on their work, with the aim of reaching agreement about the way forward. Potential options include agreeing flexible working arrangements, unpaid leave, paid annual leave, or a period of furlough for eligible employees.
The government’s recently updated guidance on shielding and protecting clinically extremely vulnerable people to reflect the introduction of the new Tier 4 will now be updated again in light of the national lockdown. As under Tier 4, formal shielding now applies and employees are strongly advised to work from home and, where this is not possible, not to attend work. For these employees, the guidance is likely to suggest that employers should discuss alternative roles and/or hours to allow employees to work from home or, alternatively, to consider furlough. Alternatively, shielding employees may be eligible for Statutory Sick Pay.
Employees who are required to self-isolate must not attend work and it is an offence for an employer to knowingly allow this to happen, with fines starting at £1,000 and rising to £10,000 for repeat offences. Employees are also required to tell their employer if they have tested positive for coronavirus; been contacted by NHS Test & Trace or their local authority; or are required to quarantine after return from travel abroad. A failure to do so risks a £50 fine. However, employees who can work from home can continue to do so.
Where home working is not possible, in some circumstances employees may be eligible for SSP during the self-isolation period. Allowing employees to take unpaid leave or paid annual leave, or to be furloughed, where eligible, are also potential options. The government has now published guidance to help employers and employees understand their obligations, including the considerations which should be taken into account before terminating an employee’s employment where they are unable to attend work because of coronavirus.
Coronavirus Job Retention Scheme (CJRS)
The impact of the new national lockdown once again highlights the importance of the CJRS to employers. It had already been announced in December 2020 that the CJRS will continue until at least the end of April 2021. This means that employers can continue to fully, or flexibly, furlough employees and claim 80% of the employees’ usual salary for hours not worked, up to a maximum of £2,500 per month, provided that the employees were employed on 30 October 2020 (and an RTI submission made between 20 March and 30 October 2020). Employers must only contribute employer NICs and mandatory pension contributions.
NB Employers cannot make a claim for any claims periods starting on or after 1 December in respect of any days on which a furloughed employee is serving a contractual or statutory notice period (for whatever reason).