Lockdown III – Employment Law Update

Lockdown III

Following the announcement of a third national lockdown for England and Scotland Regulations have now come into force in England .

Key points for employers to note are as follows:

• Many businesses will be required to close during the lockdown and others will obviously suffer a severe downturn in demand. The Chancellor has announced a one-off lockdown grant worth up to £9,000 for businesses in the retail, hospitality and leisure sectors.
• The furlough scheme, which has been extended until 30 April 2021, can also be accessed by employers throughout the UK.
• The government’s National lockdown: Stay at home guidance states that people are not permitted to leave their homes ‘without reasonable excuse’ subject to a list of exemptions.
• Exemptions include:
• to shop for basic necessities, for you or a vulnerable person
• to go to work, or provide voluntary or charitable services, if you cannot reasonably do so from home
• to exercise with your household (or support bubble) or one other person, this should be limited to once per day, and you should not travel outside your local area.
• to meet your support bubble or childcare bubble where necessary, but only if you are legally permitted to form one
• to seek medical assistance or avoid injury, illness or risk of harm (including domestic abuse)
• to attend education or childcare – for those eligible

• In Scotland there is also a requirement to stay at home and no one should leave their homes unless it is for an ‘essential purpose’.

• Employers should carefully consider which employees may attend their place of work with these specific tests in mind. With some roles it will be obvious if the tests are met. However, in other instances, for example with office-based work, the decision-making process will need to be done on a case by case basis. Where a decision is taken that an individual satisfies the tests, the decision-making process should be recorded.
• There are criminal sanctions for non-compliance with the Regulations so employers must ensure that they are able to justify their reasons.

• The closure of schools at short notice will have caused considerable childcare issues for a number of working parents. There are a number of potential options available for employers with employees who are unable to work because of childcare issues, including the furlough scheme, temporary changes to hours of work or agreeing a period of unpaid leave or annual leave with the employee.

Read guidance on CJRS from November 2020 to April 2021 >

Clinically Extremely Vulnerable Workers

As part of the Prime Minister’s recent lockdown announcement, the clinically extremely vulnerable were advised to stay at home even if they could not work from home. Letters have been sent to the clinically extremely vulnerable advising them to begin shielding again. Employees falling within this category may be furloughed (assuming they meet the eligibility criteria) or may be entitled to SSP (again if eligible) and the letter they receive may serve as a FIT note.

Self-isolation and SSP

The SSP regulations have been updated following the reduction in the self-isolation period from 14 to ten days for those with symptoms of COVID-19, who have tested positive or who are in a household with someone who has tested positive. The regulations now state that anyone who is symptomatic or who tests positive, as well as their household contacts, will be deemed to be incapable of work and entitled to SSP (if eligible) if they self-isolate for 11 days (this includes the day symptoms start, or the day on which they are tested, and the subsequent ten full days).

Sponsored workers

The UK’s new immigration system came into force on 1 December 2020 so that from 1 January 2021 anyone from outside the UK and Ireland (including all EU nationals) will require a visa if they want to work in the UK. Employers will need to hold a sponsor licence in order to sponsor employees for these purposes.

The abolition of the Resident Labour Market Test was a welcome change for businesses sponsoring non-UKI employees, but the latest guidance (updated in December 2020) states that when advertising for a role that will be filled by a sponsored worker, an employer must include specific prescribed information in the job advert, keep a record of where the job was advertised and retain specified documentation from any recruitment process. There are onerous obligations and sponsors will need to ensure that their recruitment procedures are fully compliant with this new guidance.