COVID19: Can/Should you go to Work? Trinity Barrister’s View
The vast majority of the adult population will have watched our Prime Minister Boris Johnson tell us all to stay in our homes wherever possible until further notice. The exceptions to that advice are:
1) Shopping for basic necessities – to be undertaken as infrequently as possible
2) One form of exercise a day – run, walk, cycle, with social distancing firmly in mind
3) For medical need or to provide care to a vulnerable person
4) Travel to and from work, in the words of Mr Johnson “only where it is absolutely necessary and cannot be done from home”
The full guidance on staying at home and away from others can be accessed here. It was published on the evening of 23rd March, shortly after the public announcement.
The guidance includes: Every citizen must comply with these new measures. The relevant authorities, including the police, will be given the powers to enforce them – including through fines and dispersing gatherings.
In my area of work the position of the Courts today from various sources appears to be that no one should attend Court in person until further notice. Telephone/video hearings will be arranged to consider the options going forward and wherever possible ways in which hearings can take place will be instigated.
Outside the areas of litigation and court work the guidance appears to be as follows:
1) Where anyone works in a critical sector, as defined in government guidance it is expected that their children can still be taken to schools and therefore those workers will continue to be expected to travel to and from work where absolutely necessary
2) Various businesses must now close under the guidance (in addition to pubs, cinemas and theatres, dealt with in guidance last week), including all non essential retail stores, libraries, community centres, youth centres, indoor and outdoor leisure facilities, places of worship, hotels, hostels, B&Bs, campsites, caravan parks and boarding houses. A more detailed list is available here. Travel to work at all of these locations (other than to facilitate the closure) would appear not to be necessary in view of the fact that these businesses must close
3) The exception to the public gathering (no more than two) rule includes where the gathering is essential for work purposes. Travel for an essential work gathering does therefore appear to be permitted but in these days of technology it is difficult to see how a gathering could not take place online
4) The guidance states “travelling to and from work, but only where this absolutely cannot be done from home”. Arguably this wording may be more lenient than the words used by Mr Johnson but in my opinion they are directed at the same thing – if it is not an absolute necessity for you to travel to work you should not do so.
The Government then tweeted an “Emergency Covid-19 Alert” which stated that you may only go to work if you are a key worker. This is obviously more restrictive than the terms used before as it takes the decision as to whether work is essential out of the hands of the individual.
Andy Burnham later last night tweeted that he had spoken to No 10 and that people could leave home to work as long as they observe the 2m social distancing rule. In my view this should still be seen through the lens of only where absolutely necessary and those going to work should be prepared to justify this to a police officer.
For those who are self-employed Mr Burnham also pointed the difficulties caused by the new rule in view of the lack of provision for the self-employed in his tweets. This appears to have been addressed this morning with an proposed amendment to the Coronavirus Bill by the House of Commons Public Bill Committee. If accepted this will ensure that those who are self-employed will receive guaranteed earnings of the lesser of 80% of their net monthly earnings averaged over the last three years or £2,917/month. This would provide the self-employed with similar protection to the employed.
In light of the above, whether employed or self employed in my opinion the position this morning is:
1) Only go to work if it is an absolute necessity and cannot be done from home;
2) If you are a key worker travel to work is highly likely to be viewed as an absolute necessity;
3) If not, you will need to be able to justify the decision to go to work and to explain why you are unable to work from home.
As well as being an accredited Civil and Commercial Mediator and member of Trinity's Alternative Dispute Resolution (ADR) team, Richard is on the Government Legal Department's Regional Panel of Counsel and is a member of the Football Association’s National Panel of Chairmen for Anti-Discrimination Cases.