Covid-19: office working and Tier 4

With the likelihood that much of the country will be under the new Tier 4 rules for some time, it is important to be aware of the changes to the rules for office-working.

The legislation governing Tier 4 is materially identical to the regime during the November lockdown. Those in Tier 4 may only leave home where a statutory excuse applies; one of which is that it is reasonably necessary to leave home for the purposes of work, where it is not reasonably possible to work from home. That statutory position is echoed in the Government’s guidance, which continues to stress that those who can work from home should do so. 

The position for Tiers 1-3 remains unchanged: there is no formal restriction on leaving home, but any gathering is only permitted where that is reasonably necessary for work purposes. 

Guidance can be found in a number of different Government online publications. All give the same overall message for Tiers 1-4, although some use the phrase "work effectively" (i.e. office workers who can "work effectively" from home should do so). In our view that minor distinction is unlikely to make a substantive difference to the applicable test. The concepts of reasonable necessity and reasonably possibility remain wide enough to encompass a wide range of possible business and personal factors, including an individual’s mental health.

The Covid office secure guidelines have been slightly updated since Saturday’s announcement so that clinically extremely vulnerable individuals are now strongly advised to work from home if they are in Tier 4. The guidelines say: 

If [clinically extremely vulnerable individuals] cannot work from home, then [they] should not attend work. Employers should consider whether clinically extremely vulnerable individuals can take an alternative role, or change their working patterns temporarily to enable them to work from home. Where that is not possible, employers should not require individuals to attend work, but have a conversation about alternative arrangements including consideration of the use of the Coronavirus Job Retention Scheme (furlough).

The guidelines otherwise remain the same as the 13 December version, except for cross-referring to the new Tier 4 rules. Notably, the guidelines retain the confirmation that offices can, if Covid-secure, open under all tiers (including Tier 4), but that office workers should work from home if possible, where it is effective for them to do so. 

We will keep clients updated of any further guidance in this area, otherwise please reach out to your usual Macfarlanes contact to discuss how these restrictions apply to your workplace.