In recent weeks, the ongoing incidence of a high number of coronavirus cases has led to a flurry of developments which impact on employers, culminating in new laws which take effect on Monday 14 September 2020, imposing a new ‘Rule of 6’. Keeping track of the latest information is an uphill task. Here we summarise the latest key information which employers need to know.
Rule of 6
The Rule of 6 takes effect on Monday 14 September 2020: In England, it is now unlawful for more than 6 people to gather together, either indoors or outdoors.
The aim is to simplify and strengthen the rules on social gatherings so that they are easier for the police to enforce. The police have the power to disperse gatherings of more than 6 people and individuals can be fined £100, doubling for repeat offences up to a maximum of £3,200.
Importantly, for employers, there are a number of exemptions:
- gatherings for work, training or education purposes, or the provision of voluntary or charitable services;
- weddings, funerals, and team sports organised in a COVID-19 secure way;
- venues following COVID-19 secure guidelines, such as places of worships, gyms, restaurants and other hospitality venues; however, within those venues, there must not be individual groups larger than six, and groups must not mix socially or form larger groups.
The full list of exemptions is set out in the government’s Coronavirus: Meeting with others safely guidance.
The coronavirus quarantine rules continue to impact on the international movement of employees for work purposes and on employees returning from overseas vacations. It is clear that the need to quarantine is a very fluid situation as the government responds on an ongoing basis to increases in coronavirus cases abroad. For employers, however, the removal of travel corridors at very short notice creates significant uncertainty and potential disruption to business.
The full list of jobs which are exempt from quarantine restrictions is here. Employers would be well advised to familiarise themselves with this list to assess the impact on business travel for their employees. At present, there is no ability to circumvent this list, for example, by the production of a negative COVID-19 test result.
The government has also announced that it will simplify the Passenger Locator Form needed for travelling to the UK, and take measures to ensure passengers have filled out their form before departure. Border Force will step up and target their enforcement efforts at the border to ensure arrivals are complying with the rules.
Employers also need to decide their approach to managing employees returning from a holiday abroad who may, or may not, have known on their departure from the UK that they would be subject to quarantine on their return. If employees are able to work from home while they are self-isolating this is a straight-forward solution. Where employees are unable to work from home, however, employers will need to formulate and communicate a policy. This may include requiring employees to take the period of quarantine as paid holiday, or as a period of unpaid leave. Statutory Sick Pay is not payable in these circumstances.
Test & Trace
The government announced on 9 September that it will shortly be making it mandatory for certain premises and venues where people meet socially to collect contact information for a member of every party, retain the information for 21 days, and provide it to NHS Test & Trace without delay when required. Core COVID-19 Secure requirements will also be mandated for hospitality businesses.
The end of the Coronavirus Job Retention Scheme is on the horizon. To date, the government has been resolute that there will be no extension beyond 31 October 2020. Instead, it has created the Coronavirus Job Retention Bonus Scheme which incentivises employers with a £1,000 bonus for every previously furloughed employee who is retained on certain job conditions until at least the end of January 2021. Detailed guidance is expected in September 2020 but is still awaited.
In the meantime, the government has officially launched its Kickstart Scheme to assist with the creation of new 6-month job placements for young people who are currently on Universal Credit and at risk of long-term unemployment. The criteria are as follows:
- the job placements must support the participants to develop the skills and experience they need to find work after completing the scheme;
- government funding is available for 100% of the relevant National Minimum Wage for 25 hours per week, plus associated employer National Insurance contributions and employer minimum automatic enrolment contributions;
- the government will pay a £1,500 per job placement payment for setup costs, support and training;
- funding is available following a successful application process;
- applications must be for a minimum of 30 job placements but employers can partner with other organisations to reach the minimum number;
- the job placements created with Kickstart funding must be new jobs.
Education and childcare provision
The reopening of schools in England at the start of the autumn term and the renewed availability of registered childcare provision for pre-schoolers has facilitated the return of many workers to the workplace.
However, the ongoing provision of education and childcare may, unfortunately, be hanging on a precipice, with many factors potentially impacting on its future availability. Employers may, for example, have employees who unexpectedly have children sent home from school or nursery due to a suspected or confirmed case of coronavirus in their education ‘bubble’, or a local lockdown may be imposed preventing 2 households from meeting at home which may remove the availability of unregistered childcare provided by family members.
Employers will need to consider how to respond to these childcare issues. Potential options include obtaining employee agreement to continue or to start a period of furlough (up until the end of October) until their childcare provision is reinstated; considering whether the leave meets the statutory requirements of unpaid emergency time off for dependents; allowing, or requiring (with requisite notice), the employee to take holiday; agreeing a period of unpaid parental leave; or agreeing changes to working hours or days as part of a flexible working request. Facilitating and encouraging open communications with employees should assist both employer and employee to achieve a satisfactory solution in these circumstances.
Vulnerable or anxious employees
In England, the government’s general shielding scheme came to an end on 1 August 2020 and, while the government guidance remains that extremely critically vulnerable employees should work from home wherever possible, it also states that these individuals can also now go to work provided their workplace is COVID-Secure.
Employers will need to consider their approach to this. Even with COVID-secure measures in place, there may be many vulnerable employees who feel very anxious about returning to their workplace. In these circumstances, open discussion with the employee to understand and address their concerns is key before taking any further steps. Furlough (until the end of October 2020), flexible working and continued home working are potential options in this situation and should be explored before enforcing a return to the workplace. Employers should ensure that their health and safety obligations are at the forefront of any decision-making.
Employers should also note that, despite the ending of the general shielding scheme, employees may also continue to be shielded by a GP letter to that effect, or may live in a local lockdown area where shielding guidance continues to recommend staying at home.
Employers will also need to consider how to manage non-vulnerable employees who are generally anxious about returning to the workplace, for example now that the government is encouraging employees to return to offices even where working from home is possible. A similar approach to managing vulnerable employees is likely to be the starting point.
There is no doubt that, in the coming weeks and months, there will be more developments which impact on employers, and unfortunately, there seems unlikely to be any opportunity soon to be able to take the foot off the pedal in terms of keeping pace with the latest guidance and regulations. Please speak to your usual DLA Piper contact if you would like any assistance or advice on the latest developments.
NB Different measures apply in Wales, Scotland and Northern Ireland.