Contractors’ Questions: How do coronavirus Tier 1,2 and 3 restrictions affect me?

Contractor’s Question: What do the new tier 1, tier 2 and tier 3 coronavirus lockdown measures mean for contractors? Should we be travelling to and from work if we live in a high risk area? And can we have business lunches in Tier 3, as per an email I’ve received from a London restaurant stating that despite the single-household rule for indoor hospitality within Tier 3, business meetings over food and drink at Tier 3 restaurants are acceptable?

Expert’s Answer: On October 12th 2020, the government introduced a system of local COVID alert levels in England: Tier 1 (medium), Tier 2 (high) and Tier 3 (very high).

Check before you travel

With Lancashire recently joining Liverpool and Merseyside in Tier 3, and London being added to Tier 2, the rules about travelling to and from work should be checked in your region before you embark on a journey.

The government’s guidance in respect of all three tiers states that you should “work from home where you can effectively do so”.

Attending the workplace under the Tier system

However, the guidance also makes it clear that anyone who cannot work from home can still travel to their place of work. This includes people living inside and outside of the very high alert (Tier 3) areas, who can continue to travel in and out of the areas for work.

However, as we have previously explained, contractors who do need to travel for work should ensure that, when they return home, they comply with the official social distancing guidance including the “rule of six”, to try to limit the potential spread of coronavirus between different geographical areas.

Companies and employers must also ensure that they have put adequate measures in place within the workplace to limit the risk of infection and the spread of the virus. If contractors have particular concerns about the measure which have (or have not) been put in place in their workplace, then they should raise these with the company or via their recruitment agency (if relevant).

Eateries exploiting the 'business meeting' loophole

As to Tier 3 restaurants saying business meetings in their premises over lunch or dinner are acceptable, our view is that the guidance is unfortunately unclear. I understand that the hospitality sector is seeking clarity from the government on the question of these working or business lunches, so further information may become available over the coming days.

Part of the confusion appears to result from the fact that the legislation and the government guidance do not match up. The legislation would take priority, however, as the guidance has no legal force.

Crucially, on October 14th 2020, new regulations came into force which provide the legal basis for the new Tier 3 system of local COVID alert levels in England. In respect of Tier 2 and Tier 3, indoor gatherings of two or more people are banned, unless an exception applies.

One of the exceptions is where the gathering “is reasonably necessary for work purposes”. If an exception applies, then there is no limit on the size of the group. This is, however, set against the backdrop of the government’s guidance that individuals should work from home over the winter if they can.

An exception just for freelancers?

On the face of it, this could mean that work meetings can take place in restaurants. However, it has been reported that a government spokesperson has suggested that the exception is only intended to apply to sole traders or freelancers with no business premises to conduct meetings.

In any case, under the regulations, such working/business lunches may only take place where it is “reasonably necessary for work purposes”. In most cases, it will be possible for meetings to be held remotely, so it will not be reasonably necessary to hold a meeting in a restaurant. Furthermore, as a limited company contractors usually ask about hosting one at this time of year, it is clearly not ‘reasonably necessary’ to hold an office Christmas party, meaning none of the guidance represents a green light to organise work festivities.

We would advise contractors against playing host

Overall, seeking to rely on the above exception in order to meet or socialise indoors (in Tiers 2 and 3), is not within the spirit of the social distancing guidance generally, and we would not advise contractors to organise such gatherings unless, and until the legislation and guidance is relaxed, other than where it is necessary for work purposes.  

The expert was Hannah Morrison, an associate at law firm Brabners LLP.

Profile picture for user Hannah Morrison

Written by Hannah Morrison

Hannah is a Senior Associate Solicitor in the employment team at Brabners. She qualified as a solicitor in 2016, having trained at Brabners since 2014, and has been advising contractors, recruiters and end-hirers throughout that time. Hannah is part of Brabners’ specialist recruitment sector team which provides advice on issues affecting contractors and recruiters as well as advising on matters including umbrella arrangements, the Agency Worker Regulations and NMW investigations.

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