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Although the Government has been very clear that their decisions will be “data driven not date driven”, it is expected that restrictions will be eased as follows:

  1. On 08 March: schools re-opened and all children and students returned to face-to-face education in schools and colleges.
  2. From no earlier than 29 March: outdoor gatherings of either six people or two households will be allowed; outdoor sports facilities will be allowed to reopen and, most importantly, the ‘Stay-at-Home’ message will end.
  3. From no earlier than 12 April: non-essential retail, personal care premises and public buildings such as libraries and community centres will reopen. Hospitality venues will be allowed to reopen to serve customers outside and self-contained accommodation, such as holiday lets, can also reopen.
  4. From no earlier than 17 May: limits on outdoor social contact will be lifted (although gatherings over 30 people will still be illegal); indoor hospitality will resume and up to six people or two households will be permitted to mix indoors.
  5. From no earlier than 21 June: all legal limits on social contact should be removed.

This is a positive step towards returning to ‘normality’ for the country. As this happens, employers will need to be mindful of the effect that easing restrictions will have on their workforce. Below, we consider some of the key areas that employers will need to consider over the coming months.

Furlough extension

Whilst the easing of restrictions will undoubtedly have a positive effect on the economy, many businesses will still be feeling the effects of continued lockdowns for some time to come. For that reason, the Chancellor recently announced in the spring budget that the Coronavirus Job Retention Scheme, which has been paying the 80% of wages for furloughed employees and was due to end on 30 April 2021, will now be extended through to 30 September 2021. This will allow employers to spend the summer months catching up on lost trade following over a year of restrictions, whilst at the same time providing some job security to employees in affected industries. Employers should note, however, that for any claims after 01 May 2021, employees must have been on your RTI payroll before 02 March 2021. This effectively means that the deadline for placing staff on furlough was 02 March 2021.

The Government will continue to contribute the full 80% towards wages for hours not worked, up to a maximum of £2,500 per month, until 30 June 2021. Employers will then be required to contribute 10% towards wages for hours not worked from July 2021 and 20% in August and September 2021.

Beyond this extension, employers should also consider whether those employees who were furloughed due to caring commitments because of schools closing should now be brought back to work. Unless the employee has other caring commitments because of the pandemic or there are business reasons for the continued use of furlough, that is unlikely to be appropriate and employers will need to review each case on an individual basis.

It has also been confirmed that the Government’s shielding message for those most at risk from COVID-19 will end on 31 March 2021. New guidance suggests that those who have been classed as Clinically Extremely Vulnerable (CEV), will no longer be required to shield, and should instead follow the wider rules on social distancing and good hygiene. Where they can work from home, they should do so. Where they are not able to work from home, they should now return to the workplace.

In addition to the extension of the furlough scheme, the Chancellor also announced in the spring budget additional funding for enforcement of the scheme, with the Government investing over £100m in a taxpayer protection taskforce to prevent furlough fraud. It is, therefore, clear that the Government will be cracking down on those employers they feel have misused the scheme. Consequently, it is vital that employers understand what is required of them to make a valid claim under the scheme to avoid enforcement action being taken. In summary they must: make sure they have an agreement in place that is consistent with employment, equality, and discrimination laws; keep a written record of that agreement for five years and keep records of how many hours the employee works and the number of hours they are furloughed during claim periods.

Returning to the workplace

Whilst the Government’s ‘Stay at Home’ message is likely to end on 29 March 2021, the advice remains that those who can work at home should continue to do so. However, as restrictions are relaxed more employers will undoubtedly be looking to get staff back into the workplace.

Where that is the case, employers will need to ensure that they continue to comply with their general duties to take steps to protect the health and safety of their workforce. As more staff members return to the workplace, employers should review the safety measures they currently have in place and update risk assessments accordingly. This is particularly important for those employees who have been shielding for the last year and will be making a return to the workplace for the first time since March 2020.

Where an employee is still cautious about returning to work because of concerns relating to COVID-19, employers should take the time to run through any risk assessments that have been conducted and any safety measures that been put in place with them. Those who have previously been classed as CEV are likely to reluctant to return to work after being told for over a year that they should shield. Employers will therefore also need to consider whether there are any underlying health reasons why the employee may not want to return to work and where there are, employers should consider whether a report from the employee’s GP or an occupational health specialist might assist in facilitating a return to work. If, once that advice has been received and any recommendations made acted upon, employees continue to refuse to return to work, employers will need to consider whether that refusal is reasonable and if not take steps to address the situation.

Vaccinations

Many employers are considering whether they can make having the COVID-19 vaccination a mandatory requirement for employees. The short answer is that, at present, any such blanket mandatory policy for existing staff members is likely to be risky and could give rise to a number of claims (including unfair dismissal and discrimination). There may be sectors, such as the care industry, where it is reasonable to make the vaccination a mandatory requirement in order to protect vulnerable members of society and it may well be that as evidence on the effectiveness of the vaccine becomes clearer, it may be deemed more reasonable for even more sectors to require their employees to have it.

For now, it is best for employers to encourage their employees to get the vaccine by, for example, allowing employees to have paid time off to attend vaccination appointments. Where employees are reluctant, employers should discuss this with them in as sensitive a way as possible.

Regardless of their decision, employers who are implementing any vaccination policies must pay very careful attention to the requirements under the Data Protection Act 2018 and the UK General Data Protection Regulations. Information about whether employees have been vaccinated will constitute special category data and employers will need to handle it appropriately and in accordance with the requirements of the relevant legislation.

The ICO has published a helpful FAQ on COVID-19 vaccinations and GDPR, which can be found here: https://ico.org.uk/global/data-protection-and-coronavirus-information-hub/coronavirus-recovery-data-protection-advice-for-organisations/vaccinations/

Homeworking in the future

The pandemic has shown many employers that working from home can be an effective working structure. It is likely, therefore, that in the future more employers will be looking at increasing home working or allowing their employees to work more flexibly, either from the office or from home.

Employers who are wanting to implement home working on a more permanent basis will need to review any internal homeworking or flexible working policies and update or implement those as needed.

At every stage, as lockdown restrictions ease, employers should be considering the effect any such easing will have on their employees. It is likely that clear and effective communication is going to be the key to ensuring that the transition back to ‘normality’ is as smooth as possible for both employers and employees alike.

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