Your FAQs answered on working in the office versus WFH, socialising with colleagues and clients at Christmas, travelling for work, and furlough.
England’s second period of lockdown came to an end on Wednesday 2 December, to be replaced by a stronger variant of the tiers system which preceded it. These changes were foreshadowed by the UK Government’s Covid-19 Winter Plan which was published on 23 November.
The vast majority of England is now in Tiers 2 and 3 (the “high” and “very high” alert areas), with only the Scilly Isles, the Isle of Wight and Cornwall in the lowest tier. London and much of the South East (except for Slough and Kent and Medway) is in Tier 2.
In these FAQs we cover:
1.Working from home vs working from the office
2. Socialising with colleagues and clients
1.Working from home vs working from the office
What does this mean for attendance at the office, now that there is no restriction on anyone leaving their home?
Restrictions on gatherings (including at work) remain in place and are set out in the Health Protection (Coronavirus, Restrictions) (All Tiers) (England) Regulations 2020:
- in tier 1, indoor gatherings may not consist of more than six people except where exceptions apply; and
- in tiers 2 and 3, indoor gatherings of two or more people are prohibited except where exceptions apply.
Exceptions to the restrictions on gatherings include linked households, education, work, volunteering, births, marriages, funerals and a set of relaxed restrictions over the Christmas period (23 to 27 December).
The “work” exception in the rules is unchanged from the previous tiers system: gatherings are permitted if they are “reasonably necessary for work purposes”.
When is attendance at the office “reasonably necessary”?
The guidance so far provided by UK Government on the reasonable necessity test has not been particularly candid. In the context of offices, the guidance has previously been that office workers should work from home if they can do so effectively but should attend the office if not. We discuss this guidance here.
However, the Covid -19 Winter Plan suggested that the Government would revise its guidance on this point: it notes that homeworking can have a meaningful effect on the overall rate of transmission. Because of this, the Government has emphasised that it:
encourages employers to enable a greater degree of home working, and will strengthen guidance to be very clear that anyone who can work from home should do so.
This guidance has just been published and all it says is that “Everyone who can work from home should do so”. It does not suggest that the emphasis is any stronger than previously. Additionally, it does not affect the actual legal test for attending the office, which is reasonable necessity as described above.
Where people cannot do so, including construction, manufacturing and infrastructure, they should continue to travel to their workplace.
Extra consideration should be given to those people at higher risk who should continue working from home wherever possible.
Our take on all of this taken together is that it amounts to strengthened guidance from government for everyone to work from home unless this is not feasible for really good reasons.
Is mental and physical health a relevant consideration? What about poor working conditions at home?
The Covid-19 Winter Plan gives a number of reasons why working from home on a full-time basis might not be feasible and attendance at work may be necessary. It made specific reference to the employee’s mental health and wellbeing as a relevant issue: for example, if an employee lives alone or otherwise in difficult circumstances. Other relevant factors may include an inadequate workspace at home, poor WiFi connectivity and constant interruptions or noise from neighbours/other members of the household.
Employers will need to carefully balance the risks to the mental wellbeing of employees impacted by home working against the risk of virus transmission from attendance at work, paying particular attention to those who are part of a vulnerable group. Employers should have an open dialogue with employees about their particular circumstances and the best way of ensuring their health and safety in the context of the needs of the business.
2. Socialising with colleagues and clients
Can we have a work-related Christmas celebration?
Most workplaces in England will fall either in Tier 2 or Tier 3 restrictions. Tier 2 guidance makes clear that “gatherings for work purposes are only allowed where they are reasonably necessary. If meetings take place in the workplace, workplaces should be set up to meet the Covid-19-secure guidelines. Meals to socialise with work colleagues are not permitted”.
We are therefore sad to report that parties, Christmas lunches or any social celebration gatherings with colleagues within or outside the office are not permitted. But, looking on the bright side, following a virtual Christmas party there will surely not be so many incidents for HR to deal with, compared to a normal year where socialising in-person is not just permitted but encouraged.
What about entertaining clients this Christmas?
For many businesses, meeting and entertaining clients, customers and contacts face to face over the Christmas period is key part of business development, and might come close to a question of necessity for certain sectors.
However, this would be considered a gathering within scope of the Regulations. If (which is unlikely) all attendees are from Tier 1, then the gathering would be permitted as long as there are no more than six persons in attendance.
If the gathering is to take place in Tier 2 or 3 then it would be prohibited unless the reasonable necessity exception applies, which is unlikely. You would need a really good reason for arguing that this gathering is reasonably necessary. In an era of virtual coffees and drinks, this will be a stretch, but not completely out of the question if, for example, meeting up with a key customer is vital to ensure a continued flow of orders for the following year.
What about business meetings?
On the other hand, our view is that work-related meetings where it is strongly beneficial to have people in one room (for example to complete a large business transaction or to plan a complex project) will meet the “reasonably necessary for work” test. However, if the meeting is purely for business development for the coming year it is less likely that this will be regarded as necessary when instead it could be performed virtually. Thought needs to be given as to precise reasons why physical attendance in one place is necessary.
How long will these restrictions be in place?
It is likely that the tiers system will be here for a few months and probably until spring, after winter infections have peaked and possibly after a proportion of the population has been vaccinated. It is unlikely that a full return to the office would be justifiable before then, although firms may perhaps open the office to voluntary attendance if the employees attending have good reason and the premises are Covid secure. We will revert to this topic in the new year.
However, some regions may move up or down the tiers depending on infection rates. The Regulations require the Government to review the tier allocations every two weeks, with the first review complete by the end of 16 December.
What about travel between tiers?
An important change in the new three-tier regime is that if you travel out of your area you must abide by your originating area’s rules. For example, if you live in a Tier 3 area, you must continue to follow Tier 3 rules when you travel to a Tier 1 or 2 area and cannot take advantage of the more relaxed rules on gatherings.
Employers should continue to avoid requiring employees to travel to or take overnight stays in a tier with higher restrictions to their original area, unless necessary for their work duties.
Can our employees travel to different sites or to see clients within the UK?
If an employee is required to travel to various sites across England, this is permitted but discouraged unless it is necessary for matters such as work, education, caring responsibilities or moving home.
Employers should seek where possible to ensure that their employees are able to travel to any client or project site and back without having to stay overnight in a location which is not their home, or in a higher tier to their home. However, overnight stays away from their home or in a higher tier are permissible under the Regulations if they are necessary for work purposes. If that is the case, employers should arrange for an employee to stay in a hotel or other accommodation which is close to the client’s site. This should be arranged in advance, given that many establishments have closed or have a reduced capacity during the lockdown period.
If staying away from home and whilst at the client’s site, employers should require employees to follow the rules relating to travel, as set out in the safer travel guidance. This will include:
- wearing a face covering on public transport and common areas of hotels and other buildings
- maintaining social distancing as far as reasonably possible when at the client’s site
- abiding by any track and trace requirements the hotel and client may have
- following any requirements which the client may have in place at its site (such as one way systems) in order to ensure that the work environment is as secure as reasonably possible.
What are the rules with travelling within the UK?
Employees who are travelling within the UK will find that the rules applicable in Northern Ireland, Scotland and Wales differ from those in England, given that the former three nations have devolved powers in health policy.
The current guidance is that unless an individual has a reasonable excuse then they should not travel between Scotland, Wales and England (however you may travel through these countries in order to get to second location, for example from England to Northern Ireland through Wales). The exceptions to this restriction include travel for work. At the time of writing, Northern Ireland is currently in a further period of lockdown, but travel is permitted for work purposes.
Can employees travel outside of the UK for work?
If an employee is required to travel outside of the UK, additional steps should be kept in mind by both employer and employee, including those required on arrival and any matters to be dealt with on return. We discuss these practicalities in the following sections.
Arrival in the new country
Employers should make clear to employees that, upon arrival in the destination country, they should comply with the local laws and restrictions of the country they are visiting. This may include self-isolating, providing contact details to local authorities, testing for coronavirus or even restrictions on entry.
Employers should check the travel guidance for employees travelling to other countries in good time before the employee leaves and ensure that upon arrival the employee will be able to carry out their intended duties.
For some countries, employees will be required to be tested before they arrive in the country. For some countries, testing can be done at the airport using the new 20-minute test. However, this is currently available only for certain flights (for example to Hong Kong). If testing is not available at the airport, then employers should consider whether they will pay for employees to take the necessary tests before they travel.
As with any person who is travelling abroad, employees will, on or before their return to the UK, need to complete a passenger locator form. In addition, if the business trip is to a country which is not on the Government’s travel corridor list (which currently comprises only a small number of countries) or subject to the new exemptions on business and other travel (which we summarise below) then the employee will be required to self-isolate for 14 days following the return home, unless they are exempt from doing so. Exemptions from this rule are only available to a narrow range of workers, including:
- “high value” business travellers (from 5 December)
- certain performing arts professionals, TV production staff and recently signed elite sportspersons (from 5 December)
- journalists (from 5 December)
- people who live in England but regularly work abroad and travel between those locations at least once a week
- people who are responsible for human and veterinary medical trials or are medical or medical product quality assurance inspectors
- specialist technical workers for waste or power infrastructure
- IT and telecommunications workers (in certain circumstances only, such as if their work provides an essential or emergency response to cyber threats).
In addition, from 15 December the Government will commence its “Test to Release” scheme which allows travellers to reduce the 14-day quarantine period to potentially five days if they pay for a private Covid test and the result is negative.
Even if an employee falls within the self-isolating exemptions listed above, track and trace requirements will still apply: if notified by the NHS track and trace service he or she has been in close contact with a person who has subsequently tested positive, the employee should then self-isolate in accordance with government guidance.
In that case, it is important that his or her employer should not encourage or require the employee to attend the office or any other site: otherwise the employer could be liable for a fine of up to £10,000.
What is a “high value business traveller”?
At the time of writing, the Government is yet to release guidance on the workings of the new exemptions which come into force on 5 December. However, based on the comments of Government ministers the “high value business traveller” exemption is a narrow one, only applying to those who strictly need to be in the UK and bring a significant economic benefit with (expected to be 50 or more jobs created in the UK or £100m or more of contracts or investment flowing into the UK).
Further Government guidance is expected shortly.
What are the practical steps employers should be taking when employees are travelling abroad for work?
Employers will owe a duty to employees who are travelling for work purposes to take all reasonable steps to protect the employee’s health and safety. If an employee becomes sick on a business trip then there is the possibility that the employee could claim compensation against his or her employer for financial losses and pain, suffering and loss of amenity if the employer has breached its duty of care or other applicable health and safety duties. In order to protect themselves, employers which have employees travelling to international countries for work purposes should put in place a policy in which they require employees to follow both local and UK laws and guidance and comply with any self-isolating restrictions on their return.
In addition, we recommend all employees who are required to travel for work purposes are given the safer travel guidance and asked to confirm they have read and understood it and will act in accordance with the guidance where possible.
Employers should check whether their insurance covers employees who become sick on work trips and inform the employees of whether they are covered or not.
Can those unable to attend the office for health and safety reasons be placed on furlough?
The HMRC guidance and Treasury Direction on the Coronavirus Job Retention Scheme (known as the “CRJS” or furlough scheme) does not explicitly address the position of employees who are suspended on health and safety grounds, for example due to pregnancy. However, it is likely to be reasonable for an employer to furlough an employee who has been suspended on full pay due health and safety risks, if his or her ability to work safely is impeded due to the impact of coronavirus. The purpose of the CRJS is to assist employers with the employment costs arising from the health, social and economic emergency resulting from coronavirus. This purpose is sufficiently wide to cover employers who are incurring the employment costs of suspending employees on full pay because of safety concerns arising from the pandemic.
Employers should note that pregnant employees are entitled to receive their normal pay (including any bonuses they would have been paid) whilst suspended for health and safety reasons. To avoid the risk of a discrimination claim, it will therefore be necessary for employers to top up the furlough payments received from the Government under the CJRS (which are currently capped at the lesser of 80% of pay or £2,500 per month).
Before placing any employees on furlough, their agreement must be obtained and recorded in writing. Employers should be aware that if they wish to furlough pregnant employees on suspension, they will need to register with HMRC as an employer using the CRJS and must comply with HMRC’s reporting obligations.
Can we place employees who are going through a redundancy consultation on furlough?
Changes to the furlough scheme mean that employers are no longer able to claim furlough payments for employees who are on notice. The government’s intention is to encourage employers to keep staff employed over the winter period by creating higher financial costs if the employee is under notice.
Employers who were not anticipating the extension of the furlough scheme or changes in the rules relating to it may have already started placing employees at risk of redundancy and started to complete the consultation period. For those employers it may no longer be cost beneficial to continue with the redundancy process at this time. Instead it may be better from a financial perspective to pause any consultation process until the new year and to await possible further changes to the furlough rules. Employers are able to pause the redundancy process without having to re-start the process again. Redundancy consultations where more than 20 employees are being made redundant within a 90-day period have to take place for a minimum period of time, but there is no maximum period of time.
Redundancies: navigating tricky issues
The new furlough scheme rules – what employers need to know
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.