Local lockdowns – what are the HR and employment law issues?

Why employers should be ready for local lockdowns

In his 3rd July statement the prime minister set out his plan for controlling Covid-19 by targeting action at local outbreaks. In Leicester, a local lockdown is now in place, backed up by regulations. This followed the earlier closure of a factory in Kirklees where 165 employees tested positive for Covid-19.

Even more recently, there have been several closures of pubs shortly after re-opening when customers revealed that they had received a positive diagnosis. As national lockdown eases, these types of emergency local lockdowns are likely to become more common and could impact whole regions, cities or smaller communities, or just individual workplaces, schools or blocks of flats.

We’ve seen similar measures being taken in other countries. In Germany, two districts were placed under renewed lockdown in June, although the decision to continue restrictions in one district was later overturned by the courts. A meat-packing plant at the centre of the outbreak was closed and employees living in the onsite staff accommodation were placed under compulsory quarantine. Spain has also re-imposed lockdown measures in response to local outbreaks, whilst Australia has essentially sealed off the Melbourne area in an effort to control the resurgence of the virus.

Local lockdown will impact different employers in different ways

Businesses will not necessarily need to close just because they are inside an area under local lockdown, or because an employee or customer tests positive for Covid-19, but they may be affected in various ways:

• Some businesses within the impacted area may be required to close (such as shops and restaurants).
• Offices that have reopened may need to require employees to work from home again. (The current advice is that anybody who can work from home should be doing so, but if this advice is relaxed in future it could be reintroduced in the event of a local lockdown.)
• Employees may be unable to work due to sickness, self-isolation or school closures, or may be concerned about the risks of travelling to work, especially if they are vulnerable or someone at home is vulnerable.
• Employees may also be impacted by travel restrictions. The Leicester regulations provide that travelling for work is a reasonable excuse, and presumably future local lockdowns will take the same approach. More restrictive lockdown measures could, however, be introduced if necessary.
• Individual workplaces could be required to close in the event of an outbreak.

We now go on to explore these issues and the steps that employers that could consider to protect the business.

Starting point: employees generally entitled to full pay during a lockdown

Most employees are entitled to pay if they are ready and willing to work, even if their employer is unable to provide them with work. This is not true for all staff - casual workers, for example, are generally only entitled to be paid for the hours they actually work. However, in the event of an emergency temporary closure, most employees would be entitled to their normal pay unless you take steps to renegotiate this position - for example, by agreeing that the business has the right to place employees back into the furlough scheme (see below) or lay them off without pay.

Re-furloughing is an option for now, but not for everybody

The government has reassured employers in Leicester that the furlough scheme remains in place and they can continue to furlough employees under the scheme, or re-furlough employees who have come back to work. The furlough scheme is usually the best option where there’s no work to be done, but be aware that it won’t necessarily help you cover all employment costs in the event of an emergency closure:

• The furlough scheme is now closed to new entrants, so will only help businesses who have previously used the scheme in respect of employees they have previously furloughed.
• This means that, if a business takes on new staff when reopening, it will not be able to use the furlough scheme for them in the event of a local lockdown.
• It also means that employers who did not furlough employees during the national lockdown period will be unable to place those staff on furlough if ordered to close due to an outbreak on their premises.
• Employees cannot be furloughed unless they agree. When the national lockdown was imposed, employees generally agreed to be furloughed because the alternative was likely to be redundancy. For temporary closures, however, employees may be less willing to agree - at least without a top-up to their pay. If they refuse, employers may be forced to consider redundancies, but these are not quick to implement and may be difficult to justify if the lockdown promises to be relatively short.
• The furlough scheme will require an employer contribution from August and will close altogether at the end of October. The chancellor has so far ruled out any extension of the scheme. It is possible that it could be revived for local lockdowns, or that local authorities may be asked to provide support using funds supplied by central government, but there are no signs of this currently.

Staffing a workplace that is trying to stay open may be challenging

In the event of a local outbreak, employees may fall ill themselves or be required to self-isolate as a result of contact with someone who displays symptoms, whether at home, work or elsewhere. Employees who are sick or self-isolating will be entitled to statutory sick pay and possibly also company sick pay, depending on your contracts and policies. (For more details, see our FAQs on sickness and sick pay.)  If you are keeping the workplace open during any local lockdown, you may ned to source temporary cover for employees who are sick or self-isolating (if they cannot work from home).

If schools and nurseries close, many staff will be unable to get to work even if the workplace remains open. This could affect employers outside an affected area, as well as those within it. If an employee can’t work because of childcare or school disruption, they don’t need to be on full pay (unless your policy provides for this), but they do have a right to unpaid emergency time off for dependants. Employees could also be re-furloughed in these circumstances. You may also need to source temporary cover for the employee’s absence.

What if employees are unwilling to come to work because of concerns about contracting Covid-19 at the workplace? All employees have a statutory right not to be subjected to any detriment or dismissed for refusing to come to work in circumstances where they have a reasonable belief they are in “serious and imminent danger”. We examine this in detail in our FAQs on staffing decisions on reopening workplaces (see “What if the employee says that they cannot come to work, citing serious and imminent danger?”).

In situations where the statutory protection applies, the employee would be entitled to stay at home on full pay. If the infection rate is very high locally, employers can expect employees to make the argument that it is too dangerous to come to work, especially if they are vulnerable. There may even be pressure to close the workplace.

Employees who need to use public transport may also raise concerns about the safety of asking them to come in to work during a local outbreak – we’ve written about the legal position here.

You cannot eliminate the chances of these sorts of arguments being raised, but there are various practical steps you can take to mitigate the risks, summarised in this table.

Working from home needs to be made viable for the longer term

Current government advice is that everyone who can work from home should be doing so, and many offices remain closed. This advice could be relaxed in the coming months to allow more offices to reopen. In the event of a local lockdown or temporary workplace closure, however, it is likely that office workers will need to start working from home all over again.  Many employees will welcome this, but others will have struggled with an unsuitable homeworking set-up or with fragile mental health.

The UK Health and Safety Executive has said that there are no increased risks associated with using display screen equipment (DSE) for those working at home temporarily. As any period of temporary homeworking extends, however, employers should have regular discussions with workers to assess whether additional steps are needed - for example, where they report discomfort. Employers also have a responsibility to safeguard worker’s mental health and wellbeing.

Planning for local lockdown 

Against that background, employers could consider various steps to plan for local lockdown:

• If hiring new joiners, remember that you can’t use the furlough scheme for them. Consider negotiating a lay-off provision that would allow you to send them home for a short period without pay in the event of a temporary closure. Decide also what to say about homeworking in new-joiner contracts and whether you want to include an explicit requirement to work from home if needed, or at least an acknowledgement that they may be working from home during the pandemic. Do you also need a new approach to hours or flexibility?
• Do you have the right to redeploy individuals to other sites? If not, it could be useful to introduce one so that you can ask employees who live in a locked-down district to work at another site for a temporary period (if permissible and risk-assessed as safe). Or you may need to redeploy existing staff to cover for employees inside the locked-down area who are affected by school closures, sickness, self-isolation or other disruption.
• Can you require employees to take annual leave at short notice? This could also be useful as a means of managing temporary closures.
• If you have furloughed employees, should you secure their agreement to re-furlough or will you deal with this if the need arises?
• Have you given homeworkers advice on completing their own DSE risk assessment at home, and explained the steps people can take to reduce the risks from display screen work? What steps are you taking to safeguard employee mental health and wellbeing?
• What employee representation structures and channels do you have in place for workplace health and safety issues? How will you liaise with safety representatives over the arrangements for any temporary lockdown?
• Consider also whether any of your policies need updating, now that it’s clear Covid-19 is not going to be eradicated any time soon. For example, do you need to have a clear position on how Covid-related sickness or self-isolation will be treated under your sickness absence policy?
• Are you in the middle of a restructuring or redundancy programme? If so, you may need to be ready to switch to remote consultation for some or all workers in the event of a local lockdown. (See our FAQs on restructuring workplaces.)
• Finally, some employers are considering other changes to employment contracts for existing employees, to provide greater flexibility over the coming months, including reduced pay, deferred pay or the introduction of lay-off provisions.