Amid the debate about enforcement of lockdown rules and the imposition of fines on rule breakers, we look at the position in England in relation to going to work under the current lockdown rules.
Although the prospect of police enforcement of the rules about working seems unlikely, it is important that employers and workers understand the current legal position as this is not always explicit in the government guidance.
The current lockdown in England is underpinned by legislation: The Health Protection (Coronavirus, Restrictions) (All Tiers) (England) Regulations 2020*.
These regulations provide that no person may be outside the place where they are living without reasonable excuse.
In the context of work, reasonable excuse only exists if it is reasonably necessary to be outside of the place where they live for the purposes of work and it is not reasonably possible to work from home.
The word “reasonably” almost always implies looking at the situation objectively, so from an objective perspective it must be considered whether a person must be outside of their home for work at all, and whether it was not possible for them to do the work from home.
During the previous English lockdown in the Autumn of 2020 and under the structure of Tiers 1-3, the rules were less strict and workers were allowed to go work if they were unable to work from home “effectively”.
It is a criminal offence for an individual to breach the current rules on working. The fines that can be imposed rise from £100 for a first offence to £6,400 for a sixth or subsequent offence.
It is not actually an offence for employers to let people come to work in breach of the regulations. An employer would only commit an offence if it opened for business in breach of regulations requiring them to close, in which case fines of up to £10,000 can be imposed. However, it may be unattractive for many employers to be seen to let their staff come to work in breach of the rules.
For more information please contact the authors or any member of our Employment team.
*This note is based on the version published at 6 January 2020 which is the current available version at the time of writing.