Employment and Immigration Update - Working from home

03 December 2020

Has the legal position on working from home changed from 2 December 2020?

This article was first published on 27 November and updated on 3 December 2020.

Previous rules during lockdown

Guidance published by the Government on 31 October 2020, prior to the latest period of national lockdown (and since superseded), stated that “everyone who can work effectively from home must do so”. Those who were unable to work from home, including public sector employees working in essential services, could continue to go to work, but their employer had to make the necessary arrangements to ensure the workplace was ‘COVID-secure’. The guidance also made it clear that individuals were only permitted to leave their home for certain limited purposes, which included for work purposes if an employee’s place of work remained open and they could not work from home.

The Health Protection (Coronavirus, Restrictions) (England) (No.4) Regulations 2020 came into force on 5 November 2020 and were drafted to expire after 28 days (midnight on 2 December 2020). Note however that the Government has introduced a new three-tier system with effect from 2 December (see below).

These Regulations formed the statutory basis for the recent lockdown. Regulation 6 set out the circumstances when a person may leave their house, which included when “reasonably necessary” for the purposes of work or to provide voluntary or charitable services, if it was not “reasonably possible” for them to work or provide such services from home. The Regulations did not include the “work effectively” qualification that was included in the guidance, and whilst the wording is open to interpretation, it suggested that employees must still work from home even if doing so might compromise their effectiveness to some extent. These Regulations made it a criminal offence punishable by a fine for a person to leave home without a reasonable excuse.

Under the previous guidance, those who are categorised as ‘clinically extremely vulnerable’ were strongly advised to work from home during the lockdown period. If they were unable to work from home they should not have gone into work. Instead such employees may have been eligible to be furloughed under the Coronavirus Job Retention Scheme, or to be paid SSP, Employment Support Allowance or Universal Credit.

New rules since 2 December 2020

The Government has now introduced a new three-tier system to apply from 2 December 2020, with the majority of the country initially designated as Tier 2 or Tier 3. The Government’s intention is to review the tiers every two weeks. It is no longer a criminal offence for anyone to leave home without a reasonable excuse. Regulations to implement the new three-tier system came into force on 2 December 2020.

London and the counties of East Anglia currently all fall under Tier 2, meaning they are all on “high alert”. Businesses and venues can remain open in a COVID-secure manner, unless they are required to remain closed by law. Travel to or from Tier 3 areas, including overnight stays, should be avoided unless necessary, which can include for work purposes.

The new Regulations applicable to Tier 2 areas include a restriction on indoor ‘gatherings’ of two or more people (or more than six people if outdoors), a breach of which is a criminal offence. However, there are exceptions applicable for business purposes. An indoor gathering is a ‘permitted organised gathering’ if it is held at business premises, and provided people participate alone and without mingling with anyone outside of their household (Exception 2) or if it is “reasonably necessary for work purposes” (Exception 4). There are further exemptions relating to education and training.

Under all three tiers, however, the advice in the latest guidance is that “everyone who can work from home should do so”. Those who cannot do so, including those working in critical national infrastructure, construction, manufacturing and essential public services, should continue to go into work “where necessary”. The guidance does not include the previous wording on ‘working effectively’ from home and it appears that the Government is keen for more people to work from home than were doing so prior to the second period of national lockdown in November.

Under the Government's COVID-19 Winter Plan, it states: “The Government encourages employers to enable a greater degree of home working, and will strengthen guidance to be very clear that anyone who can work from home should do so” (paragraph 63). However, it also notes that there are specific reasons why attendance in the workplace may be needed, including mental health issues or concerns, and/or a need to work on-site physically. The wording suggests that we might expect further guidance on working from home to be published, but this has not yet appeared. In the meantime, employers should assess on a case-by-case basis whether an individual should be present in the workplace and should not require all employees to be present unless there is a clear reason to justify why they cannot work from home.

Additional guidance for those who are clinically extremely vulnerable has also been updated with effect from 2 December 2020. This states that “everyone is currently advised to work from home where possible” but that the clinically extremely vulnerable in all three tiers can go to work if they cannot work from home, provided their employer has taken the necessary steps to reduce the risk of exposure to COVID-19. Employers may also furlough such employees under the extended Coronavirus Job Retention Scheme.

The original version of this article (27 November) was from the November 2020 issue of Employment and Immigration Law Update, our monthly newsletter for HR professionals. To download the latest issue, please visit the newsletter section of our website. For further information please contact Liz Stevens or another member of Birketts' Employment Law Team.

The content of this article is for general information only. It is not, and should not be taken as, legal advice. If you require any further information in relation to this article please contact the author in the first instance. Law covered as at December 2020.