What the new lockdown measures mean for businesses

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On Tuesday (22nd September 2020), the Prime Minister announced tougher lockdown restrictions which it is hoped will prevent the rising spread of the coronavirus and prevent the need for another full national lockdown.

In this article we focus on the main issues this will generate for businesses by revisiting the options open to business owners.

What changes were announced this week?

Working from home– Under previous rules most businesses were able to re-open, subject to being ‘covid secure’ and office workers were encouraged to go back to work as recently as last month. However, following a surge in transmission rates and fears of a second wave of the virus, the government has now reverted to previous advice that employees should work from home ‘if they can’.

10 pm trading restrictions– perhaps the most significant changes are to the hospitality sector, namely bars, pubs and restaurants who must cease trading by 10 pm and are restricted to table service only.

Face coverings- Where previously they were not required to do so, the government has now confirmed that face coverings must be worn by those who work in the following establishments:

  • shop workers
  • shopping centres
  • restaurants and bars
  • banks
  • hotels

See here for a full breakdown of the changes across England, Scotland and Wales.

Do we now have to shut our offices again like we did in March?

Some businesses, such as Barclays, have announced plans to return to home working but if you can operate safely, there is currently no requirement to close offices.

Those workplaces for whom working from home is not an option such as construction and retail should continue to go to work.

Can an employee refuse to work from the office even though we have safety measures in place making the workplace safe and compliant with social distancing rules?

It will depend upon the individual circumstances of course but generally speaking; employees should not unreasonably refuse to return to work.

If you find yourself in this situation then you need to establish clearly with the employee why they are refusing to attend work and seek advice from our experts.

Are the shielding measures being reintroduced?

Those who were in high risk categories making them more vulnerable to the effects of the coronavirus were previously advised to shield, this was removed on 1st August.  At the time of writing the NHS has not updated its advice to reintroduce shielding measures but this may change.

What if those identified previously as being in vulnerable or high risk categories are concerned about working because of the rising infection rates?

As stated above, employees are not currently being asked to shield but do bear in mind that those who are in the high risk categories may well have underlying/long term health conditions which are likely to be classed as disabilities. As an employer you have a legal obligation under the Equality Act to implement reasonable adjustments for those with disabilities.

There is no ‘one size fits all’ approach to managing this. So, if you have a member of staff who is in the high risk category who is concerned about working then you should look at whether adjustments can be made such as:

  • Adjustments to working hours e.g., later start times, earlier finishes to avoid them having to use public transport during rush hour periods
  • A phased return to work. For example, if an employee has been absent long term and is now looking at returning to work, a gradual return to their normal working hours and/or duties may be beneficial.
  • Working from home

I have a member of staff who is refusing to wear a face covering, what can I do?

The first thing you need to establish is why they are refusing. If it is merely because they don’t like wearing a face mask or visor, then that is not acceptable and they must wear one. If they continue to fail to do so they may face disciplinary action.

If they are refusing due to health reasons, such as a respiratory condition like asthma or anxiety related conditions, then you will need to look at adjustments because their condition is likely to be classed as a disability under the Equality Act.

In either scenario, you are urged to seek advice from our experts who will advise you based on the individual circumstances and the needs of your business/sector.

I run a bar and restaurant. I have invested significantly in making my premises covid secure but I know that the changes introduced this week will have a devastating impact on my ability to continue to trade. What are my options?

This has been a devastating blow to an already stretched hospitality sector and whilst the impact of this will be swift, the key is not to act in haste.

If you have a drop in trade, consider the following:

  1. The scheme is still open until 31st October and as long as you have previously furloughed the employee for 3 consecutive weeks between March 1 and 30 June and submitted your claim before 31 July, you can put employees back on furlough for all of their working hours or on a flexible part-time basis.
  1. Lay off or short-time working (LOST).

Lay off is where you have the option to keep your employees away from work without their contractual pay/salary whilst maintaining their employment.

Lay off can be for their full contractual hours or 1 day a week.

Contractual pay is not payable during lay off but statutory guarantee pay (SGP) is payable where at least 1 day of work is lost. The current rate is £30 per day for a maximum of 5 days in a 3-month period.

Depending on the individual circumstances, an employee may be entitled to employment benefits during a period of lay off.

Short time working involves an employee’s contractual hours being temporarily reduced.

It is still used for the same reasons as lay off but, in this instance, no full days are lost and therefore SGP is not payable. Instead employees are paid only for the hours that they work.

FAQ’s regarding LOST:

  1. Do you have to give notice of LOST?

No but you are required to confirm it in writing.

  1. Does it have to apply to everyone in the company?

No but there does need to be a genuine temporary downturn in the work the employee does.

  1. Do you need to carry out a selection process or have a selection criterion when selecting which employees to place on LOST?

No, as long as there is a genuine downturn in the work the employee does and your reasons for selecting them are not discriminatory. For example, please don’t just lay off all your part time employees.

  1. Can any company use LOST?

Yes, if you have the contractual right to do so i.e., a specific clause in the contract or employee handbook.

  1. I don’t have a contractual clause, what would happen if I used LOST?

This would be an unlawful lay off or short time working situation and any losses in wages would be unlawful. You would also be at risk of constructive dismissal, unlawful deductions in wages and breach of contract claims.

  1. Can LOST continue indefinitely?

In theory it could but in practice it is not advised. If the downturn in work is expected to be long term then seek advice regarding redundancy.

Be aware that an employee is entitled to claim redundancy pay (subject to eligibility) where they have been placed on lay off without pay or on short time working receiving less than half a week’s pay for 4 consecutive weeks or 6 weeks in a 13 week period.

Its vital that you must seek advice from our experts before placing anyone on lay off or short time working.

  1. Redundancy

The lockdown measures this week are likely to be in place for at least 6 months so the previous options may not be enough for some businesses who need to take drastic steps to reduce their payroll costs, which means redundancies.

ACAS Chief Executive, CBI Director General and General-Secretary of the TUC Union have released a joint statement regarding the impact of potential redundancies and have called upon employers to consider the following five principles when contemplating or dealing with redundancies:

  • Do it openly: there are rules for collective redundancies (those involving 20 or more staff), but whatever the scale, the sooner people understand the situation, the better for everyone.
  • Do it thoroughly: to understand what’s happening people need information and guidance. Have you trained your staff representatives in how it all works?
  • Do it genuinely: consultation means hearing people’s views before you make a decision; so be open to alternatives from individuals and/or unions; and always feed back.
  • Do it fairly: all aspects of your redundancy procedure should be conducted fairly and without any form of discrimination.
  • Do it with dignity: losing your job has a human as a well as a business cost. The way you let people go says a lot about your organisation’s values. Think about how you will handle the conversation – whether its face-to-face or remote. And remember, you may want to rehire the same person in the future.

Please see our previous article on redundancy planning and call our experts without delay here. We will provide step by step guidance to assist you though the difficult process of having to make compulsory redundancies.

And finally…… we here at Avensure recognise that these are proving to be very difficult and frustrating times. With the situation seemingly changing daily, we remain committed to doing all we can to assist you. Contact our experts today for pragmatic advice tailored to suit the needs of your business. Please quote your Client Account Number on all correspondence and telephone calls. 24-hour client advice line: 0800 151 2935.