The past week has seen some major announcements from the Government which will change the way businesses are dealing with lockdown in England, including for shielding workers.

From 4 July:

  • a whole host of different businesses will be able to open the doors once again, including pubs, restaurants, holiday parks and hairdressers;
  • the 2m social distancing rule will be relaxed, so that people can remain 1m apart but with steps to reduce transmissions; and
  • members of two households can now meet together either inside or outside, while continuing to observe social distancing measures.
    It is therefore expected that demand for services will increase significantly and with the Government encouraging us to go on “staycations”, large numbers of people will need to return to work to cater for this demand.

Employers therefore need to consider how they are going to prepare for this potential surge in new business and how they will offer their services in a way which meets the Government’s updated safety guidance. The key issues for business coming out of lockdown are discussed in our cross-discipline Coronavirus guide.

Flexible Furlough: Further Treasury Direction

From 1 July, the flexible furlough scheme begins. This will allow workers to return to work part time, whilst still receiving furlough pay for periods when their employer cannot offer them work. We cover what you need to know about flexible furlough here.

The Treasury has now published a further update on how the flexible scheme will work. The key points are:

  • Employers can only flexibly furlough employees if they have made a claim under the original Coronavirus Job Retention Scheme (CJRS) by 31 July, for employees who had already been furloughed for a minimum period of three weeks beginning on or before 10 June;
  • The main exception to the above is where an employee is returning from maternity, paternity or shared parental leave after this date. Such employees can still be flexibly furloughed; and
  • Employers must either vary the terms of the employee’s original furlough agreement, or enter into a new flexible furlough agreement with employees, to reflect the new arrangement. Flexible furlough agreements must now be made or confirmed in writing (which can be done electronically), be incorporated into the employee’s employment contract and specify the main terms and conditions of the agreement. Employers must keep a copy of any agreement for 5 years.

Shielding workers returning to work

The Government has also confirmed a change in their guidance for shielding workers.

From 1 August 2020, shielding will be relaxed and if a workplace is Covid-19 secure, shielding workers can return to work, but should still observe strict social distancing rules (though should remain working from home if they can). Employers will therefore need to fully risk assess their working environment and comply with the latest Government guidance on working safely.

If an employer has secured their workplace but an employee is refusing to return to work, seeking to dismiss may be the employer’s first thought. However, there are a number of factors to bear in mind:

  • If an employee is refusing to return because they reasonably believe there is a danger to health and safety which is serious and imminent, dismissing them could be an automatically unfair dismissal (a claim which would not require two years’ service). It is important therefore to discuss the concerns with the employee and see if you can reach a position where they do feel safe enough to return before you take any drastic action;
  • If a worker is refusing to return because of childcare arrangements, dismissing them could be discriminatory – so again look at what other options are available. It may be that you can keep them on furlough if that works best for you and them. We have yet to have any Government guidance to say whether this is still ok, but certainly at the start of the furlough scheme the Government were intimating that this was ok if the employer and employee agreed; and
  • The employee could agree to unpaid leave, or could be asked to take holiday if your work place is safe and you don’t feel it is appropriate to keep the employee on furlough. Employers also have the option of issuing a reasonable management instruction to return to work, which if not agreed to by the employee, could lead to disciplinary action. However, please be aware of potential claims as outlined above.

For more detailed guidance on legal issues around staff returning to work please see our previous article here.