How should people professionals handle a local lockdown?

People Management asks HR and employment law experts for advice on key points of concern, including contingency planning and staff commuting from affected areas

How should people professionals handle a local lockdown?

While lockdown has eased across most of the UK, businesses in Leicester were unexpectedly thrust back into strict local lockdown regulations from 3 July as a result of a spike in Covid-19 cases. These restrictions, similar to the UK-wide lockdown introduced in March, mean the two-metre social distancing rule (which has been relaxed to ‘one metre plus’ for the rest of the UK) will once again need to be upheld, and non-essential travel in and out of Leicester must be avoided. 

While Leicester is currently the only city in the UK to see a concentrated spike in cases, and therefore the first to enter a local lockdown, Kirsty Rogers, employment partner at DWF points out that “where there is a significant rise in cases in any locality, we will likely see further local lockdowns.”

“This is a global pattern,” she explains. “It is therefore essential for businesses to prepare robust contingency plans anticipating the impact of local lockdown within their organisations.” 

And indeed, those who flout local lockdown restrictions could face a fine of up to £3,200. So what would a local lockdown mean for your organisation and how should HR prepare? 

How can I build contingency plans for local lockdowns, and what possible situations do they include? 

Whether your business has branches in the Midlands or central London, creating a contingency plan for a local lockdown is a pragmatic approach to navigating this uncertain climate. On deciding the best place to start with building a plan, Paul Kelly, head of employment at Blacks Solicitors, advises employers to “look at how your business coped during the country-wide lockdown and assess what worked and what did not.”

Rogers says businesses are now on notice of the possibility of a local lockdown and “failure to manage short-notice lockdowns appropriately with regard to people, customers and health and safety will not be forgiven.” 

Kelly says: “If your employees cannot get to their place of work but can work from home, you need to make sure they have the necessary equipment to do so,” adding that retail and hospitality may have to consider moving parts of the business online or operating a reduced service. 

"When considering working at home, employers should implement a working at home policy, consider IT equipment and carry out any necessary risk assessments,” says Rogers, adding that they also need to factor in childcare issues if a sudden local lockdown occurred. 

Gary Cookson, director of Epic HR, recommends employers build local lockdown scenarios into the regular cycle of business continuity planning, and test how the organisation could respond to such an event. 

“One of the difficulties is those who work, live or have children in school either side of the boundaries of the lockdown, which is a possible nightmare scenario, but one you could be talking to your staff about now. People will already know if this could affect them, so ask for their ideas in advance,” he says. 

What are the possible consequences if my business refuses to close because of a local lockdown?

The full consequences, beyond a fine of up to £3,200, of a business breaching local lockdown rules are (thankfully) yet to be discovered. Fudia Smartt, partner at Spencer West, predicts this will “likely increase the risk of employment claims of unfair dismissal and possible discrimination if requests by those with protected characteristics with particular vulnerability to Covid-19 are required to attend work.” 

“You could be at risk of personal injury claims if, for example, someone contracts Covid-19, and potential civil and criminal sanctions for breach of health and safety legislation,” says Smartt. 

Other legal ramifications for employers, according to Rogers, include employee claims for detriment or dismissal under sections 44 and 100 of the Employment Rights Act, and potential whistleblowing claims. Employers could also face a criminal sanction imposed by the Health and Safety Executive (HSE). 

“The government has provided an extra £14m in funding for the HSE should they need it to help support getting people back to work safely. ‘Covid notices’ are also being issued to organisations that are not complying with the safety standards required,” says Rogers. 

Kelly adds that fines and formal written warnings will be likely, while “restaurants and pubs may face licensing reviews if they refuse to comply.” 

Cookson adds that the consequences from a health and wellbeing perspective, alongside employee engagement and employer reputation and brand, are “probably worse” than a fine from the government.

Is there any support similar to the furlough scheme available if businesses have to close because of a local lockdown?

In short: no. Employers will still be able to utilise the coronavirus job retention scheme until 31 October 2020, but it will be closed to new entrants from 10 June 2020 (excepting those on family leave and certain military services). It is therefore advisable that employers plan ahead for the eventuality of being locked down after furlough provision has ended. 

Rogers notes that there is also a limit on furlough claims from 1 July: “The number of employees claimed for in a single period cannot exceed the maximum number of employees claimed for under any claim ending by 30 June 2020”. 

“Considering the complexity of the scheme, it would be prudent for employers to plan ahead which employees could be furloughed should a local lockdown be implemented and review any furlough agreements that have been formerly used and how they should or could be changed in light of the more flexible furlough arrangements that have come into force since the start of July,” says Rogers. 

Kelly points out, however, that the government has sent “extra funding” to Leicester’s local authority to help it through the lockdown, which bodes well for businesses that may struggle post furlough. 

Can I expect an employee to travel to work if commuting from an area affected by a local lockdown?

Employees who live in an area under local lockdown should be working from home, and they should continue to do so until the lockdown is lifted. But, if working from home is not an option, they may be required to travel. 

Smartt suggests a risk assessment would be the most sensible way to mitigate the possible risk of Covid-19: “Can they avoid using public transport, can they work at staggered times to reduce staff contact?”

“Employers will also need to remind staff of their obligation to inform them if they have been in contact with anyone who is exhibiting Covid-19 symptoms and they need to self-isolate, which is in keeping with the NHS track and trace system under the government’s Covid-19 strategy,” says Smartt. 

Kelly adds that employers “may also want to consider temperature checking employees that have commuted from a locked down area.”

How does this affect my organisation if I have multiple branches/offices both inside and outside of the locked down area? 

Alongside ensuring employers with multiple branches/offices have a continuity plan that addresses the possibility of future local lockdowns, Rogers advises that home working should be the primary focus. But where this is not possible, “employers may be able to restructure temporarily to try and continue operations safely during any local lockdown”. 

Paul Holcroft, associate director at Croner, says employers should consider employees’ personal circumstances. “They may have children who need to be dropped off at school and requiring them to get to another location by their usual start time may not be possible where the route to work was different,” he points out.

Smartt reminds that above all else, employers will need to take into account “not only the 12 workplace-specific guides the government has produced, but also the five-point guidance for all employers.”

If my organisation has multiple sites, am I able to reassign staff affected by local lockdowns to other locations?

“As long as the employee’s contract of employment allows it,” says Kelly. “A contract will normally state the employee may be required to work in any other location throughout the UK or even overseas,” adding it would be sensible to discuss any changes with the employee before enforcing them, but warned that if there is no clause in the employee’s contract, it might be harder to enforce. 

Rogers echoed this: “Where there are no such clauses, employers will need to seek agreement to the change in terms and conditions. They should consult with trade unions and employee representatives where appropriate,” she said. 

When do I need to consult with unions and employee representative groups about the way my organisation handles a local lockdown?

Cookson said that communication during these uncertain times is absolutely vital: “Don’t wait for events to overtake you as happened with national lockdown – be proactive.” 

Rogers also highlighted that local lockdowns may necessitate further consultation with trade unions and employee representatives on: changing terms and conditions of working patterns and/or furlough arrangements; further health and safety considerations and risk assessments; lay-offs; short-time working clauses; and redundancies. 

“It is essential to be transparent with employees and communicate clearly and collaboratively over the measures taken to protect their health and safety and to facilitate business continuity,” she added. 

Are there any unexpected risks businesses need to consider when facing a local lockdown?

Cookson said the major risk is people themselves not complying, because seeing life continue as normal elsewhere in the country could cause considerable temptation to “stray and break the rules”. 

“If employees do so, they’re probably not bringing your company into disrepute, but repeat offenders could – so consider how you’d respond to this and lead by example,” he said. 

Rogers added: "Employers will need to focus on their employees' mental health. At a time when lockdown is beginning to ease and employees are returning to some form of normality, it will be challenging for some to go back to the restrictive measures. Employers should offer as much support as possible to help protect their employees' mental wellbeing.”