Last reviewed 22 December 2021

Following the rapid rise in Covid-positive cases of the Omicron variant, the devolved parliaments in Scotland, England and Wales have announced new restrictions. Scotland and Wales have taken a more forceful stance by banning crowds at sporting events, restricting the number of households represented in hospitality settings and re-introducing strict social distancing measures, to limit the transmission of the virus.

Whilst Boris Johnson has outlined that tougher measures are not on the cards for England before Christmas, it is highly likely a further announcement will be made in the immediate days following. As such, it’s wise for businesses to make preparations now, to avoid their festive season being ruined by having to dedicate their holiday time to ensuring the swift implementation of new mandatory restrictions.

What restrictions might we see?

There have been several varying predictions for the measures which will be enforced before the end of the year. These can be categorised into three key scenarios:

  1. Enhanced guidance and encouragement to the public, for example to limit household mixing, but no mandatory requirements or legal enforcement.

  2. Legally mandating enhanced restrictions but without a full closure of businesses.

  3. A return to full firebreak lockdown.

Among the main focuses at the moment is the prioritisation of ensuring schools return as planned after the Christmas break. However, the extension of the school holidays or a return to remote learning cannot be ruled out completely. At the moment, anything is possible and keeping in mind the ever-changing Covid-situation and historical last-minute implementation of new measures, this is entirely realistic.

What does this mean for businesses?

Organisations should prepare their operations and workforces for the return of tougher measures, which could be implemented as early as next week. They could include a change to the number of individuals allowed to mix at the same time, following proposals that the rule of six will be reintroduced. In addition, new outdoor dining only rules and tighter social distancing measures are speculated to be implemented. This is likely to have the most impact on hospitality settings, who will have responsibility for recording and managing table bookings in line with government guidance.

Unfortunately, push back from customers in these settings is likely, so it’s imperative for employers to proactively implement safeguarding measures to protect their employees from unwarranted third-party harassment. Failure to do so can lead to vicarious liability, meaning employees can be successful in their tribunal claims for harassment and/or constructive dismissal, even if the misconduct behaviour did not come directly from someone within the organisation. 

Similarly, should a curfew be reintroduced in hospitality settings, employers may need to consult with their staff members to temporarily change their existing terms and conditions. Those who are contractually entitled to a minimum number of hours or fixed shift pattern per week (eg weekends from 4pm–12am), will be affected by the re-introduction of a mandatory 8pm closing time. However, organisations risk breach of contract and/or unlawful deduction from wages claims if they fail to agree to a contract variation. 

What should employers do if the business has to close?

There have been calls for the return of a furlough-like scheme, to provide financial assistance to employees and employers alike, should the closure of businesses be mandated. Indeed, to ensure the long-term viability of individual organisations and continual employment of their staff members, the Government may be forced to consider re-opening the furlough scheme, or a similar alternative. Should this happen, employers will once again have to assess the eligibility of their workforce, consult on the changes, seek employee agreement and confirm any furlough decisions in writing. Payroll teams may also need support and training to correctly calculate wages for furloughed employees.

Similarly, plans were previously drawn up for a new Job Support Scheme (JSS). This was initially supposed to be rolled out in November 2020, following the expected closure of the Job Retention Scheme at the end of October 2020. Since this was not utilised at the time, the Government may decide to take advantage of the ready-made guidance and information, which provides financial assistance but at a lower rate, so lower cost to the economy. Under existing terms of the Scheme, employees must work at least a third of their normal hours, for which they would be paid in full by their employer. For any remaining hours they would normally work, but aren’t able to due to reduction in business operations, the cost would be split three ways — a third by the Government, a third by the employer and a third lost by the employee.

Should no financial assistance schemes be provided, employers may be able to instead rely on existing lay-off clauses. However, this only entitles employees with one month’s service to Statutory Guarantee Pay (SGP) which is paid at a rate of £30 per day for a maximum of five days within a three-month period. Employers cannot reclaim SGP, so this is an expense they will have to factor into their outgoings.

What if employees cannot work due to school closures?

As outlined above, assuming there is no financial support from the Government, employers are limited in their options should employees be unable to work, due to having to care for their children who can’t go to school.

The first port of call will be to consider whether they are able to temporarily work from home. This will limit disruption to the organisations while enabling the employee to continue receiving their normal salary. Temporary flexible working arrangements, such as amendments to working hours or the normal duties and responsibilities, may improve the chances of the homeworking period being successful for both parties.

Where this is not possible, employees can instead be given the option of using their annual leave entitlement or time off in lieu, where this has been accrued.

Employers are under no legal obligation to pay employees who are unable to work but should be understanding of their situation and reasonable when approving unpaid leave. Some organisations may be willing to allow a period of paid leave to affected staff members. In such cases, it is beneficial to outline any eligibility requirements and be consistent in applying them. Employers must also ensure they are not directly or indirectly placing an employee at a disadvantage due to their need to take time off; doing so may risk constructive dismissal or even discrimination claims.