In yet another reversal of “normal work life”, employers are now worrying that they will breach the law if they allow employees to work in their offices following the imposition of the second lockdown on 5 November. 

The more usual HR challenge is making sure everyone turns up for work on time, rather than telling employees (who may be longing for the sociability and comfort of their workplaces) that they’re not allowed in the office.

So what exactly are the rules during lockdown 2?

The Health Protection (Coronavirus, Restrictions) (England) (No. 4) Regulations 2020 set out what is and is not lawful.  They prohibit indoor gatherings of two or more people and place restrictions on leaving home, subject to certain exceptions.  One such exception is where the gathering or travel is “reasonably necessary” for the “purposes of work…where it is not reasonably possible to work from home”.

The Coronavirus pages of gov.uk have some limited non-statutory guidance on the interpretation of these rules. The key message is that everyone who can work effectively from home should do so.  The extent to which homeworking can be “effective” as opposed to merely tolerable in the short term is a complex issue, involving questions around operational requirements (such as working in large teams where online co-ordination is impractical, printing and access to specialist equipment), supervision (particularly for professional services firms which need to ensure trainees and junior staff are adequately supervised), and physical and mental health.  

On the latter point, it should be remembered that employers are required to comply with the Health and Safety at Work etc Act 1974 and the regulations made under it, even when employees are working from home.  The principal and overarching requirement is that the employer is under a duty to take all reasonably practicable steps to safeguard employees’ health and safety.

With that duty in mind, there is a balance to be struck between the risk to health posed by potentially catching the virus and the risk of becoming mentally or physically unwell in isolation at home or through working in unsatisfactory conditions.  The virus risk has gone up, hence the lockdown, but the other risks can also be very present and real as well.

Another major factor in striking the right balance is the need to travel to and from work on public transport, which will increase the risk of exposure.  We will consider transport issues in greater detail in the coming days.

Contact us

If you have any questions about these issues in relation to your own organisation, please contact a member of the team or speak to your usual Fox Williams contact.


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