COVID-19 company directors and the roadmap out of lockdown

In February this year the Government announced a four-stage programme to end the COVID-19 lockdown in the United Kingdom – The Roadmap.

The Roadmap is firstly about how much interaction is allowed between people, since people being close to one another is how COVID-19 spreads. The reopening of business sectors is a secondary and conditional aspect of the Roadmap, and appears designed to meet the needs of UK citizens as they start moving around more.

At no point does the Roadmap approve a general return to work. A general return to work means social interactions at pre-pandemic levels – as such this can only happen on or after 21 June 2021, when the Government hopes that the success of the first three Roadmap stages means that all lockdown restrictions can be removed.

Current Government advice is that workers should continue to work from home during the Roadmap period.

The Roadmap – Key Dates

Each Roadmap date has the prefix “Not before” – The Government is clear that each stage will be closely monitored for any change in COVID-19 transmission. Subsequent dates may be changed if one stage leads to a surge in COVID-19 cases. On 14 June the government announced that most coronavirus rules will remain in place in England for another four weeks after the planned 21 June unlocking, and these planned relaxations are now scheduled for 19 July.

29 March 2021

Society: People can meet in outdoor settings in groups of up to six.

Economy: Outdoor sports facilities can reopen.

12 April 2021

Economy: Non-essential retail can open, hospitality businesses can open for outdoor table service-only.

17 May 2021

Society: Restrictions on meeting outdoors lifted (maximum 30 people); Two households or six people can meet indoors

Economy: Hospitality sector can offer indoor service; indoor entertainment sector can restart; Hotels can reopen

19 July 2021 (previously 21 June 2021)

Society: End of all emergency restrictions on individual movement

Economy: All remaining premises reopen, large events permitted

This is a heavily abridged summary of each Roadmap stage and does not detail variations between England, Scotland, Wales and Northern Ireland. But it is evident that each relaxation of individual movement comes with a proportionate reopening of retailing and services. The general restart of all business activity only comes when the UK’s 33 million employees resume their normal, pre-pandemic lives from 21 June 2021 at the earliest.

Preparing to restart – Where company directors are starting from

Company directors in the UK are one of the few economically active groups in the UK to have been excluded from Government support schemes. Directors paid entirely on a PAYE basis can join the Job Retention Scheme (‘furlough’) but directors paid by dividends or annual sum cannot. The IoD has made positive contributions to schemes supporting PAYE employees and the self-employed, but the Treasury has so far rejected the argument to support company directors, regardless of how they are paid. At the small- and micro-business level, this means that many company directors may be worse off than their furloughed employees. For many company directors, there is a sense of unfinished business even as the UK starts along The Roadmap.

Preparing to restart – an employer’s responsibilities

As part of its recently-published guidance for each business sector, the UK Government includes the following statement that sums up where the Government’s evolving guidance stands in relation to the statutory obligations of employers:

This guidance does not supersede any legal obligations relating to health and safety, employment or equalities and it is important that as a business or an employer you continue to comply with your existing obligations, including those relating to individuals with protected characteristics.

Simply put – Coronavirus is a (gravely serious) health risk that employers must protect employees from, as per existing safety at work legislation. This is overlaid with developing practical guidance from the government, specific to the pandemic.

The Government emphasises two steps every employer must take:

1. Conduct a specific COVID-19 risk assessment.
2. Put in place a Health and Safety Policy which incorporates measures to contain the risk of COVID-19 transmission.

An employer who does not conduct a risk assessment or modify their health and safety policy may be considered in breach of UK health and safety law.

The Health and Safety Executive offers guidance on what goes into a COVID-19 workplace risk assessment:

HSE Risk Assessment

Full members of the IoD can ask the IoD Information and Advisory Service to provide a template Risk Assessment Plan:

Request COVID-19 Risk Assessment Template

After conducting the risk assessment, a modified health and safety policy is required. IoD members can ask the Information and Advisory Service for a template Safety at Work policy focused on measures to contain infection risk.

Request COVID-19 Safety At Work Policy Template

Dealing with uncertainty

The Government appears determined to hold to the Roadmap schedule, but cautions that at each stage there will be a two week pause to assess the impact on COVID-19 transmission. Any employer seeking absolute certainty over the next few months will be disappointed.

Reopening work premises does involve risk. The Government requires that employers make all practicable efforts to keep employees safe from all hazards (including COVID-19), whilst recognising that the risk of infection cannot be entirely eliminated.

Something which does remain certain is an employer’s statutory duty to provide a working environment that is safe and fair. With this point in mind:

• Respect your statutory responsibilities to employee health and safety (See HSE website: Employer’s responsibilities). This is the employer’s duty alone.
• Identify which new Government guidance applies to your situation and agree its implementation with employees: Working safely during coronavirus (COVID-19)
• Engage employees in discussions to arrive at fair and proportionate measures to balance the demands of work and any personal issues or anxieties. But these measures must not conflict with either of the above. ACAS provides an expansive set of recommendations for employee engagement: Coronavirus (COVID-19): Advice for employers and employees

The two main requirements are comply with the safety at work laws you are already complying with, and make committed and consultative efforts to follow government guidance as it develops. When in doubt, never forget the primacy of existing legislation, which provides the surest measure of how safe and defendable any decision or action is.

It is vital that employers also understand that their decisions regarding employees remain subject to the 2010 Equality Act. There should be no separate treatment of an employee because of a protected characteristic (age, disability, gender reassignment, marriage/civil partnership, pregnancy/maternity, race, religion/belief, sex, sexual orientation).

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