Covid-19 updates to Regulations and considerations for employers and office workers

The Health Protection (Coronavirus, Restrictions) (Steps) (England) Regulations 2021 (Regulations) enact the remainder of Step 1 and all of Steps 2 and 3 of the Government’s roadmap out of lockdown in England, which was originally set out in the Spring Response published in February 2021. Additional guidance was also issued on 29 March 2021 under, and supplementing, the new Regulations.

Do the Regulations change the current rules on going to work?

The Regulations do not change the existing laws on going to work (details of which are set out below) and the Government guidance remains that “you should continue to work from home where you can”.

However, from 29 March 2021, people will no longer be legally required to stay at home and some restrictions will be lifted, for example, outdoor gatherings of no more than six people will be permitted and outdoor sports venues will be allowed to re-open. Indoor gatherings of two or more people from different households are prohibited.

What do the Regulations say?

In the Regulations, at each Step (1, 2 and 3), there is an exception to the restriction on gatherings if the gathering is “reasonably necessary” for “work purposes” and in particular for:

• “preparing for work through a skills programme consisting of:
  • a work experience placement, or
  • work preparation training;
• applying for, and obtaining, work;
• meeting a requirement for a particular area of work;
• professional training that is working towards an external accreditation recognised by a professional body; or
• exams and assessments carried out in connection with any of the above matters.”

Anyone organising a permitted gathering in accordance with one of the above exceptions is legally required to take all reasonable measures to limit the risk of transmission of coronavirus, including taking into account “any guidance issued by the Government which is relevant to the gathering”.

What does the Government guidance say?

The Government guidance in relation to individual employees remains that “you should continue to work from home if you can and minimise the number of journeys you make where possible”. Employers should continue to take “every possible Step to facilitate their employees working from home, including providing suitable IT and equipment to enable remote working”.

The Government has said that even at Step 3 (which will be no earlier than 17 May), the public will be advised to “work from home where they can”. Ahead of Step 4 (no earlier than 21 June), the Government  have promised to review the guidance on working from home and therefore people “should continue to work from home where they can until this review is complete.”

What are the sanctions for breaching the Regulations?

It is an offence to contravene a Step restriction under the Regulations and a fixed penalty notice may be issued for any such offence. For business restriction offences, the first amount of the fixed penalty is set at £1,000, doubling for each subsequent offence up to a maximum of £10,000.

These sanctions are for a breach of the Regulations, however, since the guidance is based on the Regulations, it is likely that a breach of the guidance will constitute a breach of the Regulations and therefore attract the same penalties. The courts are also likely to take into account compliance with Government guidance when assessing whether an individual or business has breached the Regulations.

What does this mean for office workers?

While there is now no legal requirement to stay at home, the Government guidance remains that you should continue to work from home where you can.  What this means in practice is not defined in either the Regulations or the guidance and therefore remains an area of uncertainty. However, previous guidance has suggested that in making the decision as to whether to allow an employee to attend the office, each individual employee’s particular circumstances may to be taken into account. This will include mental health, homeworking arrangements, and any specific tasks that are difficult or impossible to undertake from home. “Gatherings” at work (as distinct from individual attendance at work) are separately permitted if they fall within one of the exemptions set out in the Regulations described above.  

Employers should consider carefully any Steps taken to re-open their offices in consultation with employees and/or health and safety representatives, having first ensured that a risk assessment has been carried out and the workplace is Covid-19 secure.  The guidance remains for office workers to work from home if they can and thus employers are strongly advised to maintain evidence of their decision making before permitting employees to attend the workplace. Some sectors will find this more straightforward than others. Where a sensible business case requiring gatherings in the office can be made out, that is very likely to satisfy the "reasonably necessary" test for the purposes of the Regulations. However, in light of the sanctions for breach of the Regulations, employers should ensure they keep a full document trail to evidence their decision-making in case of challenge.

From early April, if your business is registered in England and your employees cannot work from home, you can register to order rapid lateral flow tests, to test employees with no coronavirus symptoms. You must register by 11:59pm on 12 April 2021.

Steps in the roadmap

At each Step of the Government’s roadmap, the following changes to restrictions will apply:

Step 1

From 29 March 2021:

• people are no longer be legally required to stay at home;
• indoor gatherings between households are prohibited,
• outdoor gatherings are permitted either in a group of 6 (from any number of households), or in a group of any size from up to two households (each household can include existing support bubbles, if eligible);
• formally organised outdoor sports with any number of people are permitted (outdoor sports venues and facilities can re-open);
• childcare and supervised activities will be allowed outdoors for all children; and
• formally organised parent and child groups can take place outdoors for up to 15 attendees. Children under five will not be not counted in this number.

Step 2

From no earlier than 12 April:

• the rules on gatherings remains the same as Step 1;
• seated outdoor hospitality can re-open (there is no “substantial meal” requirement but customers must pay for their drinks at the table);
• self-contained accommodation (which does not entail shared bathrooms, kitchens, sleeping or indoor communal areas) can re-open; and
• a variety of other businesses can re-open including non-essential retail, hair and beauty salons, indoor leisure facilities such as gyms and public buildings such as libraries.

Step 3

From no earlier than 17 May:

• indoor gatherings of up to six people or two households and outdoor gatherings of up to 30 people are permitted;
• any remaining holiday accommodation can re-open;
• indoor hospitality can re-open (subject to the same restrictions in relation to consumption whilst seated and table service); and
• all other business can re-open other than nightclubs and similar night-time venues.

This article was co-authored by trainee solicitor Constance Shaw.