COVID-19: answering your questions on voluntary business closure and furloughed workers

Please Note: All information correct at time of writing on 25 March 2020. We do our very best to make sure our information is as up to date as possible, but we’d encourage you to check out our latest articles and to check the government website for updates as they happen.

Following yesterday (Tuesday 24 March) evening’s government press briefing with Health Secretary Matt Hancock, the media has been focusing on the issue of whether people should be going to work if their work is not considered essential.

We’re likely to see some further announcements on this during the next few day’s press briefings, however, we’ve put together a few of the most pressing questions on this and our guidance on how businesses should approach this.

What is the government's current advice?

People should work from home wherever possible. If this is not possible (and the government will expect the employer to have explored comprehensively and innovatively how this could be achieved), then going to work is an acceptable reason to leave your home. There is currently no requirement that the work is considered essential.

Matt Hancock was getting quite a lot of political heat on this at the press conference ( allegations that the government are prioritising the economy over people’s health) and he, therefore, drew heavily on the fact that people should be able to keep 2 metres apart when in work and in fact said that employers have a duty to ensure this is the case. Until this comment, the two-metre distancing was seen as desirable but not essential, when in work.

What should employers do now?

In light of these comments, businesses should do whatever they can to make sure colleagues work at least two metres apart. If this is not possible, they should carry out a risk assessment. If you're a Citation client, the Health and Safety team can give them advice on this.

What if a risk assessment shows that people are working in such close proximity that there would be a high risk of transmission should a colleague be infected?

The government have not made it clear that businesses who can’t adhere to the two-metre rule must close. Indeed, very many businesses working in key sectors will not be able to manage this and the government would certainly not want them to close.

However, if the risk assessment shows that the risk of transmission is high and the work is not essential, the business should seriously consider closing – particularly if employees have expressed concern with regard to their safety.

It is anticipated that the government will clarify the situation tonight (Wednesday 25 March) and this will either take the decision out of business owners’ hands or at the very least clarify the basis on which they should decide whether to continue to operate.

If a business closes because they can’t keep people two metres apart, is this furlough?

We have not seen a detailed definition of furlough yet but this scenario does not fit in with the initial concept that this would be available where there is no work. In this case, there is work but there are concerns as to whether this can be carried out without risk to colleagues.

However, if the business closes to prevent the spread of COVID-19, this is clearly within the intended scope of the scheme, the only difference being that the business has taken the decision voluntarily rather than having been forced to close by the government.

Businesses could, therefore, put employees on furlough and take a risk that they will be able to claim a furlough grant or lay off (on the basis that they are unable to provide work in accordance with government guidance on social distancing) and explain that they intend to treat employees as furloughed workers but are waiting for confirmation that this will be within the scope of the scheme.

A spokesman for the Construction Industry Council said today that if sites were not able to adhere to the two-metre distancing rules, they should close immediately.

What if an employee does not come into work because they're concerned about the two-metre rule and is demanding to be furloughed?

First of all, the employee can’t demand to be furloughed, this is a business decision. However, employees can’t be blamed for being confused about whether it is right that they go into work because members of the government seem to share that confusion.

The best thing to do at this stage is to take a note of their refusal to come in, say that you're awaiting clarification from the government today and will come back to them.

A useful reminder for every business is the government’s official list of the businesses that should now be close. You can read that list here.

Updating you with the latest COVID-19 news as it happens

We’re currently awaiting further clarification and guidance from the government on this complex and ever-changing issue. You can rest assured that we’re updating you as soon as we find out, and helping you to translate those updates into action to protect your business.

If you’re a Citation client, you can call our HR, Employment Law and Health & Safety experts on our 24/7 advice line on 0345 844 4848.

Not yet a client of ours? Give our friendly team a call on 0345 844 1111 to discuss your business needs. Or, fill your details in the form opposite and we can get back in touch.

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