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Lockdown 3 – What can and can’t you do?

Well, this certainly is not the start to 2021 that we were all hoping for!  Let’s just hope that if we can stick to the rules and get vaccinated that we will all end up having a better year than we had in 2020.

The common denominator in all things pandemic related has been the amount of information to absorb and then just when you think you’ve got to grips with it all, it’s changed again!

To help support our clients we plan to keep you updated on a weekly basis regarding  significant changes to guidance and legislation, Q&As and best practice from a HR and H&S perspective.

Annual Leave 

New legislation introduced in 2020 means that annual leave can be carried over until 2022. If you are struggling to agree holidays as your staff are key workers then you can refuse holiday requests.

Holidays will accrue during furlough or shielding but you can give employees notice to use up leave, as long as you give adequate notice and pay 100%.

You do not have to agree to requests to cancel leave if this is going to disrupt your business.


The Furlough Scheme has now been extended until 30 April 2021.  Any claims for furlough days in December 2020 must be made by 14 January.

The decision to furlough still lies with the employer, this is not an employment right and was introduced by the Government as a public spending measure.

You can claim 80% of an employee’s usual salary for hours not worked, up to a maximum of £2,500 per month. For periods from 1 November 2020 onwards, you can claim for employees who were employed on 30 October 2020, as long as you have made a PAYE Real Time Information (RTI) submission to HMRC between 20 March 2020 and 30 October 2020, notifying a payment of earnings for that employee.

All employers with a UK, Isle of Man or Channel Island bank account and a UK PAYE scheme can claim the grant. You do not need to have previously claimed for an employee before the 30 October 2020 to claim for periods from 1 November 2020.

You can claim for employees on any type of employment contract, including full-time, part-time, agency, apprentices, flexible or zero-hour contracts. Foreign nationals are eligible to be furloughed. Grants under the scheme are not counted as ‘access to public funds’, and you can furlough employees on all categories of visa.

Always check your employees’ contractual terms in relation to a temporary shortage of work or lay off clause.   If your contracts do not include a lay off clause then you can look to vary terms, but it is important to take advice before proceeding.

All arrangements regarding furlough should be confirmed and agreed in writing.

Since July 2020, employees have been able to work part time, this is often referred to as flexible furlough.  You will need to keep details of any hours worked for 6 years.

Managing Resistance

Many businesses have faced resistance from staff not wanting to work during lockdown or return to work after being furloughed.  It is important to communicate risk assessments and listen to their concerns.  If you have all the necessary H&S measures in place then an employee is unlikely to be able to justify not returning.  Unreasonable behaviour may ultimately be a disciplinary matter but it is important to avoid knee jerk reactions whilst emotions are running high in the current climate.

Mental Health

Many of us will be struggling with the thought of a second lockdown, particularly in light of schools now being closed again.   It is important to try and keep in touch with staff as much as possible, whether they are working from home, having to work on site, shielded, furloughed or self-isolating, each of these scenarios are proving stressful at the moment.  Some people are coping better than others, but with it being winter the thought of spending time outdoors is a less attractive prospect than it was in the summer, leaving many with a case of cabin fever.

Notice Periods and Furlough

One major change is that for furlough claim periods starting on or after 1 December 2020, you cannot claim for any days on or after 1 December 2020 during which the furloughed employee was serving a contractual or statutory notice period for the employer (this includes people serving notice of retirement or resignation). If an employee subsequently starts a contractual or statutory notice period on a day covered by a previously submitted claim, you will need to make an adjustment.

Probation Periods and Temporary Employees

If you have recruited staff on or before 30 October 2020, who are on temporary contracts or within a probationary period, it is a good idea to extend the probationary period or review the temporary contract if those individuals are now being furloughed.

Redundancy and Furlough

If you make an employee redundant, you should base statutory redundancy and statutory notice pay on their normal wage rather than the reduced furlough wage.

For claim periods after 1 November 2020 if you made employees redundant, or they stopped working for you on or after 23 September 2020 you can re-employ them and put them on furlough. This applies as long as the employee was employed by you on 23 September 2020 and you made a PAYE RTI submission to HMRC between 20 March 2020 and 30 October 2020, notifying a payment of earnings for that employee.


Anybody who has been deemed clinically vulnerable will once again be receiving letters from NHS England, giving guidance on shielding.  This guidance is advisory only and your employees may wish to ignore this advice and continue to work.  In which case, they should be allowed to do so.   It is not necessary for staff to sign a waiver and even if they did it is very unlikely to stand up in court.   What is important is that employers have a legal duty to make the workplace COVID secure.

Employees who are shielding are entitled to receive SSP or you may choose to furlough them.


From 13.3.20 – SSP paid for self-isolating if living with someone with symptoms.

From 16.4.20 – SSP paid from day 1 if absence Covid-19 related including shielding.

From 26.5.20 – employers can recover the first 14 days SSP.

From 28.5.20 – SSP paid to staff who self-isolate due to test and trace.


Employees can undertake training whilst furloughed, as long as the training does not provide services or generate revenue for your business.   Employees are entitled to be paid at least NMW/NLW, which means in some cases you will need to make the 80% up to 100%.

Working from home

If you have staff working from home, it’s important to check in and keep in touch with them.  Most of us hadn’t even heard of zoom this time last year, but for many of us it’s a regular part of our working day and a great way to keep in touch.  Your staff should be given advice on completing their own basic risk assessment.  It’s also important to consider how you will monitor your employee’s activity.  In the short term, this may not have been an issue, but as we are now approaching 12 months and it may be another 3-6 months before we’re all fully vaccinated, the need to work from home is now a long-term prospect and so it’s crucial to ensure your staff are working to as full a capacity as possible.   Anyone currently working from home may be eligible for a tax allowance, of £26/month from 6.4.20.

Health & Safety

National lockdown: Stay at Home

Coronavirus cases are rising rapidly across the country. Find out what you can and cannot do.

Leaving home is only permitted for limited reasons such as work, where it is unreasonable for work to be done from home, shopping for essential items, exercise, receiving medical treatment etc. See the full list on the Government website.

Fines of £200 will be given to anyone leaving home without a reasonable excuse.

The following businesses are legally required to close:

  • Non-essential retail although click and collect may be permitted.
  • Hospitality venues – takeaway, click and collect and drive through can continue.
  • Accommodation except for very limited purposes.
  • Leisure and sports facilities.
  • Entertainment venues, including animal attractions and indoor attractions.
  • Personal care facilities such as hair, beauty etc.
  • Community centres and halls

With schools now closed, and the furlough scheme open until April, employers may want to consider putting employees on furlough leave or offering flexible working hours during this difficult time.

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