Lockdown 3.0 - Considerations and Implications for Employers

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18 January, 2021

Emma Swan
Partner and Head of Commercial Employment

On 4 January, the prime minister announced that the country would be going into the third national lockdown in less than a year and the advice reverted to stay at home except where absolutely necessary for limited legally permitted reasons.

Many businesses are required to close again, and workers must work from home unless this is not reasonably possible.


Back in December, the government extended the furlough scheme until the end of April 2021 and employers are able to claim 80% of an employee's usual salary for hours not worked, up to a maximum of £2,500 per month. Employers are responsible for employer National Insurance contributions and pension costs.

Although the furlough scheme was extended, the government did not update the cut off date to make a claim. For the latest furlough claims employees must be on an employer's PAYE payroll before midnight on 30 October 2020 therefore this can create problems for employers who have recently recruited.

Previous elements of the scheme such as carrying out activities during furlough and taking annual leave during this period remain the same.


The guidance for the clinically extremely vulnerable is that they should only go out for medical appointments, exercise or if it is essential. Employees that fall under this category are advised specifically against attending work. The government are in the process of contacting the people who are at a heightened risk however, most employees who were under this category in the first lockdown will continue to be.

For employees who have been advised to shield again, the guidance is the same as in the previous lockdown, employers should look at making alternative arrangements to their role or look at changing their work patterns either temporarily or permanently to allow them to work from home.

Where working from home absolutely cannot be facilitated, employers can make use of the furlough scheme or the employee may be eligible for Statutory Sick Pay (SSP) or Employment Support Allowance (ESA).

Childcare issues:

One of the measures implemented in this lockdown that wasn't in November is that the government have taken the decision to close schools and colleges for all children, other than the children of key workers who cannot arrange alternative childcare. This obviously has caused a multitude of issues for employees who are juggling working from home with caring for their child and home schooling.

Employers are being asked to be as flexible as possible with employees who find themselves in this situation and advised to reconsider working hours/ patterns, to look at alternatives such as unpaid leave or annual leave, or utilising the furlough scheme.

Although the government have put the responsibility on employers to consider using the furlough scheme for employees who are struggling to balance work and childcare commitments, there have now been calls to make this obligatory so that, for example, if an employee requests to be placed on furlough for childcare reasons their employer is obliged to do so. We are yet to hear whether the government will amend the guidance or legislate for this right.

Parents with at least one year's service with their employer are also entitled to take up to four weeks a year as unpaid parental leave, for each child they are responsible for under the age of 18 (with a maximum number of 18 weeks per child before they reach 18 years of age). However, employees are usually required to give their employers at least 21 days' notice in order to take parental leave, so unless an employer waives this, it may not solve immediate childcare issues.


The government has promised to vaccinate nearly 14 million people by the middle of February. The availability of vaccination will create the opportunity for employers to start a return to the workplace and is a long time coming for most people, but this also raises a number of legal issues.

The main question that employers may have is whether it is reasonable to require employees to get the vaccination when they are offered it in order to continue to work. There has been push back from a lot of people due to the unknown long-lasting effects of the vaccination and the short amount of time in which it has been developed and rolled out.

It would be ill-advised to demand that workers take the vaccine as a condition of continued employment. There are currently no plans in place to make the vaccine mandatory across England and Wales and therefore there is no legal right that allows an employer to force an employee to be immunised

For more information contact Emma Swan in our Construction & Infrastructure department via email or phone on 01254 222354. Alternatively send any question through to Forbes Solicitors via our online Contact Form.

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