What does the third national lockdown mean for companies and their employees? - Kuits Solicitors Manchester
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What does the third national lockdown mean for companies and their employees?

What does the third national lockdown mean for companies and their employees?

12th January 2021 - Published by Kuits Employment team

On the 4th January 2021 the Prime Minister announced the third national lockdown. As a result, the guidance about attending workplaces changed again and has since been implemented into legislation.

New guidance

Employees should now only leave their home for work if they cannot reasonably work from home. It also states that employers should take “every possible step” to enable their employees to work from home. As a very basic this should include providing suitable IT and equipment to allow working from home. This reflects the position in March 2020 when we first entered into a national lockdown.

Therefore, even where employers have taken steps to ensure their workplace is COVID secure if an employee can work from home they must be allowed to.

Risk to employers

Whilst employers might be tempted to ask their employees to attend the office, even just for some of their hours because this has worked during the recent restrictions, or because they are concerned about performance/ monitoring issues, employers should refrain from doing this.

Requiring an employee to attend their workplace during this lockdown when they can work from home could allow for a constructive dismissal claim, if the employee chooses to resign because of this, or even a personal injury claim if an employee was to catch the virus having been into work and become seriously ill. There is also the risk of criminal prosecution for breaching the lockdown legislation.

Is mental wellbeing a reason that employees can attend their workplace?

Many employees are also keen to attend the workplace whether that be for their mental wellbeing or because they feel more productive at their workplace. The argument that an employee may be more productive in the workplace does not mean that it is not reasonable for them to work from home and so would be a breach of the legislation.

Employers have a duty to ensure the legislation is adhered to and so should ensure their employees work from home even if they would rather not. Where an employee wants to be in the workplace for their mental wellbeing there is very little guidance on this, but a reason for being able to leave home during the lockdown is to avoid injury or illness. Therefore, it could be argued that if attending the workplace will prevent injury or further illness it could be permitted, but each situation will be dependent on its facts and according to the state of the employee’s mental health.

It is prudent for employers to keep evidence of the reasoning behind instances where employees attend work for their mental wellbeing and they should also be alive to whether what an employee tells them triggers any other Equality Act or GDPR obligations.

What do school closures mean for employees with children?

The third national lockdown has also seen the closure of all schools apart from for children deemed vulnerable or children of key workers, which is resulting in many employees being unable to carry out their hours because of childcare demands. The government guidance has been updated to confirm that employees who have caring responsibilities resulting from coronavirus, such as caring for children who are at home as a result of school and childcare facilities closing are eligible to be placed on furlough.

Whilst this is helpful in terms of childcare it leaves employers struggling when the work still needs to be done.

Employees do not have a right to furlough but in these situations employers should be consulting with their employees to agree a solution. Solutions could include part-time furlough, even if it only for a couple of hours or to coincide with school hours, the use of holidays or a change in the employee’s usual hours to allow them to either reduce their hours or to work their hours at a different time. Employers should take this opportunity to ensure their flexible working policy is effective and that they have the appropriate furlough agreements in place.

Get in touch with an employment solicitor in Manchester

If you are an employer and would like to speak to an employment expert for legal advice about what the most recent national lockdown means for you and your employees, please contact Claire Treacy on 0161 838 8192 or email clairetreacy@kuits.com.

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