Lockdown rights

Kate Palmer from HR experts Peninsula answered a range of lockdown-related employment issues during a Facebook Live session yesterday.

Gavel with employment written on it, representing employment law


So many different employment-related issues have sprung from the Covid-19 pandemic, and, as we settle into another grim phase of the virus and look towards mass vaccination, still more are coming up.

For parents, of course, there is the return to homeschooling and, in Scotland, early childcare; many are also going back to shielding. But there are new issues. Scotland, for instance, announced an end to Click and Collect for non-essential goods this week. That will have implications for retail workers who may find themselves back on furlough. Amid all the changes, HR experts Peninsula have been working with workingmums.co.uk to get accurate advice out to as many people as possible. Yesterday we collaborated on a Facebook Live session which covered everything from working from home to vaccination issues.

Working from home

Leading the session, Kate Palmer addressed questions on working from home. She said employers needed to be aware of the guidance on who should work from home and who could come into work in light of greater enforcement of guidance due to the rising number of hospital admissions.

Employers had to carefully look at whether employees could work from home. In Scotland the guidance is that workers can only go to work if they cannot do their work from home. In England the guidance is similar, but it states that they should go to work if they cannot “reasonably” do their work from home. Palmer suggested that employers should give workers who have to come to work a letter outlining why they need to be in work to avoid on the spot fines.

Furlough for childcare reasons

Palmer covered furlough for childcare reasons and said it is not a right and that there is conflicting guidance which may be confusing some employers. One piece of guidance says that employees who cannot work due to childcare issues can be furloughed. The furlough guidance, however, says that staff can only be furloughed if businesses are severely affected by Covid. The unions argue that even those businesses that can function during Covid can furlough staff if they have childcare issues.

Palmer warned that stricter restrictions might come in soon in England which may include the closure of nurseries as well as schools. Another issue that affects parents, she said, was key worker status and school access. The guidance says only one parent needs to be a key worker to be able to send their child to school, but she advised that employers may need to write a letter supporting a worker’s key worker status so the parent can show it to the school.

On the other hand, if parents are key workers and don’t want to send their child to school, meaning they can’t come to work, Palmer says employers need to look at the context carefully. Palmer said it was a different issue if a child was two to whether they were 14. Employers could suggest they change their hours or look at whether they could redeploy them. Another possibility is flexible furlough, where the employee can be furloughed part of the week and work the other part of the week.

Palmer also commented on the section of employment law that teachers were reported to be citing prior to the closure decision. It concerns a reasonable belief of a serious threat or danger. She said she had heard of other employees referring to the same law to avoid going to their workplace and added that employers needed to show that their workplace was Covid secure. She added that schools were very unique as a workplace.

Gender pay reporting

She touched on gender pay reporting, which employers with over 250 staff did not have to do last year, but which they will have to do by this April. Employers have been told that they should not include any furloughed workers in their figures unless they were receiving their full pay on 5th April 2020. However, furloughed workers have to be included in bonus reporting.

Palmer then answered a series of questions from employers on issues ranging from work travel abroad [this is probably best avoided and it could bring quarantining issues, she said] to vaccination refusal [an untested area as yet]:

Vaccination days

One employer asked if they should allow people a day off to be vaccinated. Palmer said they should consider carefully what they do because other staff will be vaccinated over time and they could set a precedent. She suggested they consider what they do for normal GP appointments [“check your policies first,” she said] and the fact that vaccination protects both the employee and other staff. She said employers might not want to look as if they are deterring people from taking the vaccine by not giving them paid time off. They should also consider if workers are high risk and whether giving them time off was a reasonable adjustment in light of that. There were moral, PR and other considerations too, the broader issues of how it makes other employees feel and how it is seen externally.

Long Covid

Another employer asked about how they handle lower productivity linked to long Covid. Palmer advised having a conversation with the employee concerned to see if there was anything the employer could do to help, whether they needed to be off sick and whether they needed an occupational health report or support from an Employee Assistance Programme. “Communications between leaders and their team have never been more important,” she said, adding that Monday is Blue Monday and looking out for employees’ wellbeing, including that of managers, is vital.

Furlough requests

Another employer asked about an employee who cannot work from home and is asking to be furloughed, although the business really can’t spare them. Palmer asked whether they could work from the office if it is Covid safe. She reiterated that furlough was not a right, but said the employer should check if the employee was shielding or had childcare responsibilities or could be redeployed to other work from home. The important thing, she said, was that the employer should act reasonably.


One employer asked about shielding. Palmer said working from home was the ideal for workers who are shielding. If not, furloughing was best. Those shielding and unable to work could also claim Statutory Sick Pay if furlough is not possible.

Breaking rules

Another employer asked about employees who are breaking the Covid rules. Palmer said this was a misconduct issue as it affected other employees’ safety. If, after talking to the employee in question, they denied breaking the rules, the employer could put in writing that they were concerned about the possibility of rules being broken. If they then were caught breaking the rules this could be grounds for a gross misconduct charge, depending on the job they did and other circumstances.

Political opinions

Other issues covered included people who expressed their political opinions in the workplace. Employers had to deal with this if it caused offence to others, was immoral or was not professional, said Palmer. If they didn’t, it could result in a claim. She added that this is becoming a more common problem as people’s political views are increasingly divided. She advised that employers have a social media policy that points out expected behaviour and, if they already have one, that they should review it in the light of all the Covid conflicts.

Annual leave

Finally, Palmer spoke about the need for employers to check who is taking holiday. Many employees are not taking their annual leave during lockdown, but Palmer said holidays are not necessarily about going to Majorca. They are about health and safety and about resting. She said employers should encourage people to take holidays using nudges and prompts and telling people about the benefits. That would mean they avoid refusing holidays later in the year when there is a sudden rush of employees wanting to take them at the same time which the business cannot support operationally. Palmer said employers could, as a last resort, force people to take leave. To do so, they have to give double the notice of the time they are forcing employees to take.

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