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.
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 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:
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.
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:
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:
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:
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.
When considering whether to reopen non-essential offices and bring staff back to work, it is important that Employers consider the following questions carefully:
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:
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:
Until 9 September 2020, the COVID-19 Secure guidelines applicable in England were supported by five key steps to working safely which employers needed to implement. They were:
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:
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.
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:
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.
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 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.