Emergency lockdown legislation published

Since the Prime Minister announced the lockdown on Saturday, employers have eagerly awaited the detail of the law to understand what it means for workplaces and, in particular, to what extent offices can stay open.  And the government seems to have opted for a fairly strict approach, which will leave employers scrambling to decide whether they need to close their premises in England again from Thursday.

Under the new Health Protection (Coronavirus, Restrictions) (England) No 4 Regulations 2020, it is a criminal offence for anyone to leave the place where they live “without reasonable excuse”.  One of the exceptions that constitutes a “reasonable excuse” is where “it is reasonably necessary for [the person] to leave or be outside [their] home for the purposes of work… where it is not reasonably possible for [the person] to work, or to provide those services from home”. 

The key test is, therefore, whether it is “reasonably possible” for the person to work from home.  This is a more stringent test than that laid down in recent guidance, which focused on whether individuals could “work effectively” from home.  It is arguable that an individual may not be able to work (entirely) effectively from home, but that it may nevertheless be “reasonably possible” for them to do so (particularly for a short period).  The language is also firmer than that contained in the government guidance on the new lockdown period published as recently as Saturday, which simply said that “everyone who can work effectively from home must do so”.

Notably, the language in the emergency legislation mirrors that of the lockdown regulations that were in force from March until the end of June, under which a “reasonable excuse” to leave home included “the need… to travel for the purposes of work… where it is not reasonably possible for that person to work, or to provide those services, from the place where they are living”.  It was, of course, the case that many offices closed completely from March to June – and yet many businesses discovered (somewhat to their surprise) that it was “reasonably possible” to carry on as before. 

Although the government guidance still refers to the test being whether individuals can “work effectively” from home, the question of whether an individual should go to the office is now a matter of law rather than government guidance so the more stringent wording of the Regulations now overshadows the guidance.

A business which closed its office from March to June but decides to keep it open now, and to permit or even require staff to carry on attending, therefore faces an obvious question – on pain of criminal liability – as to what exactly is different about the next four weeks compared to the lockdown period earlier in the year? It may (possibly) be a valid defence for an employee to leave home if their employer has told them they must work from the office or face sanction.  But this is unlikely to provide an excuse to employees whose employers have told them they can work from anywhere and who “just feel like” a day in the office. Moreover, employers who put pressure on staff to work from the office when they could, in reality, work from home, risk being guilty of inciting a criminal offence (and corporations and their officers can face liability under the regulations). 

The emergency legislation also retains some of the provisions from the recent tier 2 and tier 3 lockdown laws on the circumstances in which workplace gatherings are permitted: where such gatherings are “reasonably necessary” for work purposes.  However, as an individual would also now need to show that it was not reasonably possible for them to work from home in order to be allowed to leave their house, this seems to reduce the likelihood of a workplace gathering being deemed lawful.  Additionally, the exemption for organised gatherings on work premises (for which there was no requirement to show that the gathering was reasonably necessary) no longer applies.

It therefore seems that the cautious approach – certainly for employers who closed their offices and other work premises completely between March and June and managed to carry on – is to lock the door on offices in England again, noting that this is only (at least in theory) for a four week period, at the end of which the emergency legislation expires.  Employers and employees wishing to take the view that it is “not reasonably possible” for work to be done from home will need to give careful consideration to why that is so, and what justification they would advance if challenged.