New National Lockdown in England

Published 12 January 2021

A third national lockdown in England is in force from 6th January, in response to the sharp rise in daily confirmed cases of coronavirus (COVID-19). Separate restrictions apply in Scotland, Wales and in Northern Ireland. The new measures (in England) will expire on 31^st March and are subject to regular review. They include a stay at home order, with limited “essential reasons” for leaving home. These include leaving home for work for those who cannot reasonably work from home, or to provide voluntary or charitable services. The stay at home order is enforceable by Fixed Penalty Notices issued by the police where people leave home without a “reasonable excuse”.

In this article we look at the implications of these increased restrictions for employers. 

On 4th January the government published detailed guidance explaining the new rules; there is additional guidance for people who are clinically extremely vulnerable to coronavirus and households with a possible or confirmed coronavirus infection.

1. Workplaces. You may go to work if you cannot work from home. This includes, but is not limited to, people who work within critical national infrastructure, construction or manufacturing business sectors that require in-person attendance. There are exceptions for those who work in other people’s homes, including tradespeople and social care workers.
2. Social distancing. This is still a key control measure. The advice remains to stay 2 metres apart where possible, or 1 metre with extra precautions in place (such as a face covering). The HSE has published detailed guidance on the additional measures employers can use where social distancing is not possible. Car sharing is permitted if reasonably necessary as part of your work and provided strict guidelines are observed.
3. Face coverings. Required in indoor settings where social distancing may be difficult, including shops, on public transport, and where you will come into contact with people you do not normally meet. This will include the common parts of shared premises.
4. Vulnerable employees. Those who are clinically extremely vulnerable should follow resumed shielding guidance. The advice is they should not attend work even if they cannot work from home. Employers are devising solutions to help employees who want to continue working, including finding alternative roles, enhancing workplace controls or supplementing statutory payments.  
5. Offices. There are some changes in view of the heightened level of risk. The expectation is that most office workers will work from home and any plans for a phased return to the workplace may have to be shelved. As the period of home working has been extended , workers may feel increasingly isolated and concerned about the future. Many will also be juggling carer responsibilities and home schooling children. This may have an impact on both physical and mental health. Employers have the same health and safety responsibilities for home workers as for any other workers. This is a good time to revisit the arrangements for regular contact with home workers so you can recognise signs of stress, discuss any adjustments to their working patterns and review any equipment needs they may have.

The government’s advice has not changed significantly for employers who have been following guidance on COVID- secure workplaces since the first lockdown. The GOV.UK guides on different workplaces (including construction, factories and offices) still apply and are updated to reflect any new restrictions. However, in view of the worsening situation nationally, employers’ should review and where necessary update their existing risk assessments (including individual assessments for any vulnerable employees and those from higher risk groups) to ensure that they take account of the latest government guidance and any relevant sector guidance as a minimum. If the employer decides not to implement any further changes then the reasons for this should be recorded. Employers must  ensure that the procedures they have in place are followed.   

Throughout the pandemic we have helped our clients to interpret the various guidance and to find solutions to keep their businesses running. Unfortunately the need for COVID controls is likely to continue for some time, even with a vaccine programme in place.  Vaccination is not compulsory and will not offer total immunity. Employers cannot rely on it as a control measure when planning for the future, although it may be a relevant factor in the return to work risk assessments. Employers will be wary about collecting data on who has been vaccinated.

Before the current lockdown the HSE and local authorities (for areas they regulate) were increasingly active in carrying out spot checks and inspections on workplaces. They were also responding to complaints by employees where employers were not enforcing COVID-secure measures and were taking enforcement action in some cases. While the current lockdown may have an impact on the HSE’s capacity to carry out proactive inspections, they will respond to RIDDOR notifications and complaints.

DACB has also been advising clients on the restrictions imposed by the devolved administrations in Scotland, Wales and Northern Ireland, and in the Republic of Ireland. Please contact any member of the regulatory team if you require detailed advice.