In a much trailed statement on Sunday evening, Boris Johnson made a number of announcements about the Government’s proposals for easing lockdown and facilitating a return to work. The statement was widely expected to clarify the immediate way forward for businesses and to be accompanied by the publication of guidance to assist employers to understand their obligations for ensuring a safe workplace.
Unfortunately, however, the Prime Minister’s messaging may, at times, have served to confuse rather than clarify; and, unexpectedly, the guidance did not get published until Monday evening. It is also clear that there will be some divergence between the devolved administrations going forward.
Below, we aim to dispel some of the confusion and set out the current position as we understand it today, Tuesday 12 May 2020, and also highlight today’s announcement regarding the extension to the Coronavirus Job Retention Scheme (CJRS).
Businesses which must remain closed
At the start of the lockdown period in March 2020, the Government set out which businesses were required to close. This list can be found here. Any business on this list must remain closed until such time as the Government indicates otherwise. In its statement on Sunday 10 May 2020, and then confirmed in its Our plan to rebuild recovery strategy document on 11 May 2020, the Government has indicated that it is hoping to be able to phase the reopening of non-essential retail shops from 1 June 2020 and hospitality businesses from 4 July 2020. However, any future reopening will be dependent on the continuing fulfilment of the 5 tests first set out by the Government in April 2020, and therefore remains uncertain.
Although Boris Johnson indicated that, as from Wednesday 13 May 2020, any employees who are unable to work from home are able to return to work this clearly does not apply to businesses which must remain closed.
Businesses which are permitted to be open
Unless a business is required to be closed under the Government’s list, it is permitted to be open. This has always been the case and the Prime Minister’s statement on 10 May 2020 has not changed this. Where businesses have chosen to remain open, employees who are able to work from home have been directed by the Government to do so; employees who are unable to work from home are permitted to travel into work. Again, this has always been the case (and has never been limited to key workers as has commonly been misreported). An important slant on this, however, arising from yesterday’s announcement is that the Government has indicated that employees travelling into work should avoid public transport wherever possible and aim to travel to work by car, bicycle or by walking. On Tuesday 12 May, the Government published general guidance on transport as well as guidance for travel operators.
Following the 10 May 2020 statement some businesses which, although previously permitted to be open, chose to close, may now start to think about opening the doors once again Any closure period will have given employers the opportunity to consider and implement, any necessary safety measures. Employers will be expected to take account of Government guidance in this regard and the measures differ according to workplace type (see below).
Shielding or vulnerable employees
In its Guidance for employers and businesses on coronavirus the Government advises employers to support employees to follow its recommendations set out in its guidance on shielding and on social distancing. Shielding employees should be supported to stay home; for vulnerable (but non-shielding employees) employers should discuss working arrangements and take every possible step to facilitate the employee working from home. If working from home is not possible, the guidance permits the employee to travel into work and tells employers that they should strongly advise these employees to follow social distancing guidance. In practical terms, employers will need to carefully manage the concerns of all employees, and particularly those who are vulnerable, and determine the approach which will be followed.
On 11 May 2020, the Government published its COVID-19 Secure guidance setting out measures for working safely. There are 8 separate guidance documents which cover: (1) Construction and other outdoor work; (2) factories, plants and warehouses; (3) Homes; (4) Labs and research facilities; (5) Offices and contact centres; (6) Restaurants offering takeaway or delivery; (7) Shops and branches; (8) Vehicles. Businesses are advised to translate the guidance into specific actions which need to be taken, depending on the nature of the business, including its size and type and how it is organised, operated, managed and regulated, and are instructed to carry out an appropriate COVID-19 risk assessment. Employers of 50+ employees should note that the Government expects risk assessments to be published on the business’ website.
The future of the Coronavirus Job Retention Scheme
The Chancellor has confirmed today that the CJRS will be extended to the end of October 2020. Until the end of July 2020, the CJRS will continue on its current terms; however, in the period August – October 2020 greater flexibility will be introduced to support the transition back to work. In this period, employers who are currently utilising the CJRS will be able to bring back furloughed employees on a part-time basis; however, employers will be asked to share the cost of employees’ salaries. The combined support of the Government and employers will still guarantee employees at least 80% of their salary, capped at £2,500 per month, as now. Full details of the changes to the CJRS will be published by the end of May 2020.
The devolved administrations of Scotland, Wales and Northern Ireland diverge from some aspects of the strategy announced by the Prime Minister, particularly with respect to the stay-at-home messaging. Northern Ireland remains in lockdown until 28 May 2020 and is expected to release its framework for recovery later today. Scotland has stated that it does not want businesses to reopen yet and that the full existing lockdown measures remain operational, save that there is no longer any cap on the amount of daily exercise. In Wales, local authorities are permitted to begin the process of planning how to safely reopen libraries and municipal recycling centres. Garden centres are allowed to open provided they comply with the physical distancing duty.
- Coronavirus: Safer transport guidance for operators (published 12 May 2020)
- Coronavirus: Transport and travel guidance (last updated 12 May 2020)
- Our plan to rebuild: The UK Government’s COVID-19 recovery strategy (published 11 May 2020)
- Working safely during coronavirus (guidance for 8 workplace types – published 11 May 2020)
- Staying safe outside your home (published 11 May 2020)
- Staying alert and safe (social distancing) (published 11 May 2020)
- ACAS: Coronavirus advice for employers and employees (last updated 10 May 2020)
- Guidance for employers and businesses on coronavirus (stated to be last updated 7 April 2020 but appears to include updated advice)
- Guidance on shielding and protecting people who are clinically extremely vulnerable from COVID-19 (last updated 5 May 2020)
- Social distancing in the workplace during coronavirus: Sector guidance (last updated 4 May 2020)
 (1) To make sure the NHS can cope by providing sufficient critical care across the UK; (2) To see a sustained and consistent fall in daily death rates with confidence the UK is beyond the peak; (3) Reliable data to show the infection rate is falling to manageable levels; (4) There is enough testing and personal protective equipment (PPE) to meet future demand; (5) Any changes in restrictions would not lead to a second peak.