New lockdowns announced plus furlough implications

On Monday 4 January, the UK’s Chief Medical Officers increased the UK’s COVID alert level from 4 to 5 (the highest level) which signifies a threat that the NHS could be overwhelmed with COVID cases.

Earlier that day Nicola Surgeon announced that Scotland would be entering a new lockdown from midnight Monday until at least the end of January. This means it will only be permissible to leave home for an essential purpose such as essential shopping, exercise, and caring responsibilities.

She stated that anyone who can work from home “must do so” and it will only be an acceptable reason to leave home to attend work if that work “cannot be done from home”. Schools will mostly run via online learning. Those who are clinically extremely vulnerable should not go to work if they are unable to work from home. Their shielding notification letter will act as a fit note for Statutory Sick Pay (SSP) purposes.

On Monday evening, Boris Johnson announced further measures in England. The key points to note are:

  • England will enter a new lockdown which means you’re only permitted to leave home for limited reasons such as shopping for essentials, work “if you absolutely cannot work from home”, to exercise, to seek medical assistance or to escape domestic abuse.
  • If you’re clinically extremely vulnerable, you are being asked to shield once more and shielding notification letters will be sent out shortly.
  • Primary schools, secondary schools and colleges moved to remote learning from Tuesday 5 January. The only exceptions will be vulnerable children and the children of key workers.
  • Everyone will still be able to access early years settings such as nurseries.
  • The Education Secretary will be working with OFQUAL to put in place alternative arrangements to exams this summer.
  • By the middle of February, the NHS hopes to have vaccinated everyone in the top 4 priority categories (this includes care home residents and their carers, everyone over the age of 70, all front-line health and social care workers and everyone who is clinically extremely vulnerable). If they’re successful in this, they will have protected the most vulnerable in society which should allow the government to lift many of these restrictions (although he urged a cautious approach to this timescale given the lags between vaccination and immunity and the impact on hospital admissions).
  • The PM said that if everyone “plays their part” we should be able to move out of lockdown and start reopening schools after the February half-term and begin to move regions down the tiers.

Although the draft lockdown regulations were not available at the time of writing, the Prime Minister announced to Parliament this afternoon that it would only be a permissible reason to leave home for work purposes where “people absolutely cannot work from home” which seems a much tougher line than previous guidance on working from home “effectively”.

Implications for the furlough scheme

This swift move into lockdown has resulted in a lot of confusion around certain issues – particularly when it comes to employees with childcare challenges, caring responsibilities and those who must shield.

Our experts have reviewed current guidance and updates that have been published since the new lockdown has been announced. Here, they highlight the most important points that employers need to know.

Shielding, furlough and Statutory Sick Pay (SSP)

With the reintroduction of shielding, it’s important to clarify how shielding, furlough and SSP work in conjunction.

The key points are:

  • During lockdown the advice is that employees who are clinically extremely vulnerable should not attend work if they can’t work from home.
  • Formal shielding notification letters are being sent out and this letter will act as a fit note for SSP purposes.
  • The fact that SSP is once again payable for those who can’t attend work because they’re shielding does not change the fact that it’s open to the employer to furlough shielding employees. In December HMRC updated their furlough scheme guidance to add “An employer does not need to be facing a wider reduction in demand or be closed to be eligible to claim for these employees.” This update was welcome clarification of the confusion surrounding whether it would be appropriate for employers to use the furlough scheme for shielding employees in cases where work is available for them.
  • HMRC’s position remains that it is entirely down to the employer as to whether they chose to use the furlough scheme (although of course, the employee must agree to be furloughed). However, whilst this is in the employer’s discretion, this discretion, like any other decision affecting an employee, should be exercised reasonably and fairly. For example, a decision not to furlough someone who is shielding could lead to allegations of discrimination (particularly if there is inconsistency in approach throughout the business) or claims of breach of trust and confidence.
  • If an employer wishes to put a shielding employee on SSP rather than furlough, they should have a good business reason for doing so to counter any challenge or potential claim later down the line. If you are experiencing issues relating to this, please speak to our experts by calling our 24/7 advice line on 0345 844 4848.

For employees with childcare and caring challenges

With Monday night’s announcement on school closures, whether you can put employees on furlough who can’t work because of childcare issues has become a hot topic.

It’s always been the case that employees with childcare issues could be put on furlough, but as in the case of shielding employees, it wasn’t clear whether they could be put on furlough simply because their childcare issues prevented them from coming into work even where work was available for them.

HMRC’s guidance on the furlough scheme confirms :

“Your employee is eligible for the grant and can be furloughed if they are:

  • unable to work because they have caring responsibilities resulting from coronavirus (COVID-19), including employees that need to look after children”

Yesterday this guidance was updated to read that employees could be furloughed where they have:

“caring responsibilities resulting from coronavirus (COVID-19), such as caring for children who are at home as a result of school and childcare facilities closing or caring for a vulnerable individual in their household”.

This specifically highlights school closures and those who have to stay at home because they are caring for a vulnerable member of their household. However, unlike the change made to the guidance on shielding employees before Christmas, the guidance on furloughing employees with caring responsibilities has not been changed to clarify that these employees can be furloughed regardless of whether the business has suffered a wider impact from COVID.

It may well be the case that the omission to clarify this is just an omission and the Treasury expects employers to use the furlough scheme where employees have childcare issues even where there is work available for them. However, in the absence of a clear indication that this is the case, we would advise contacting HMRC online to obtain confirmation that your proposed use of the scheme is appropriate and to retain this for future audit purposes.

Citation can be with you every step of the way

It’s clear that the world will be living under the shadow of COVID-19 for some time to come, as the government continues to find ways to tackle the rise in cases over the winter months. With so many businesses forced to close their doors and put their employees back on the furlough scheme, we understand that this is a stressful time for many.

If you want to discuss the HR and Employment Law implications of the lockdown and the furlough scheme and get the guidance of our team of experts, you can call our advice line 24/7 on 0345 844 4848.

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