Lockdown 2.0 – what do the new restrictions mean for office workplaces?

This article was updated on 9 November 2020 to reflect the revised guidance.

The new regulations implement a similar regime to the March 2020 lockdown. The key points are:

• No-one may leave home without “reasonable excuse”. 
• A reasonable excuse includes working, but only where “it is reasonably necessary to leave home for the purposes of work, where it is not reasonably possible to work from home”.
• The current version of the lockdown guidance uses a different way of expressing that concept, saying this: “To help contain the virus, everyone who can work effectively from home should do so. Where people cannot do so - including, but not limited to, people who work in critical national infrastructure, construction, or manufacturing - they should continue to travel to their workplace.” 
• Whilst we expect the guidance to be updated by government over time, the regulations, having become law, will take precedence over the online guidance and should be the starting point for employers.
• The regulations also prohibit a gathering of two or more people unless an exception applies. One exception applies where the gathering is reasonably necessary for work purposes.
• Businesses organising gatherings must take preventative steps, including a risk assessment, and “all reasonable measures to limit the risk of transmission of the coronavirus” having regard to relevant government guidance.
• Canteens can stay open where there is no practical alternative for staff to get food.
• Breach of the regulations is a criminal matter, with both individuals and firms potentially liable. 

The most notable changes to the Covid-secure office guidelines are:

• the lockdown banner now includes the sentence “People should stay at home where possible and should only travel to work if they cannot work from home”;
• instead of “office workers who can work effectively from home should do so”, this is now “office workers who can work from home should do so”;
• the consultation process with regard to whether an employee can carry out normal duties from home has been removed; but the following consultation process remains: “employers should consult with their employees to determine who needs to come into the workplace”; and
• with regard to self-isolation, the “steps that will usually be needed” now includes “ensuring any workers who have been contacted by NHS Test and Trace follow the requirement to self-isolate”. This use of the word “ensuring” will become relevant when offices re-open and workplaces are notified of a positive test.

In summary, the three different iterations with regards to office attendance during lockdown are as follows. The Regulations ought to take precedence.

Despite the different nomenclature, the essence of the test remains the same. It effectively means that businesses face a return to the March 2020 position, under which staff should be instructed to remain at home as the default option. Only where homeworking is not feasible (which is the thrust of the test, whether one looks at the guidance or the regulations themselves) should office working be permitted. How firms should assess effectiveness, necessity and possibility will depend on a range of factors: individual constraints facing particular employees, special demands at work, and so on. Businesses wishing to take a different stance now should be prepared to justify that change – for example, a business that closed its doors in March but experienced serious difficulties as a result might point to that as a relevant factor in deciding to remain open for some categories of employees this time. Equally, a business that struggled initially to put IT solutions for home working in place might now be in a better position, so might find it easier to remain closed. Cogent evidence based on robust risk assessments, having taken steps to consult with employees, will be key.

If you would like to discuss the restrictions as their apply to your workplace please do not hesitate to contact one of us.