What does the England/ Wales lockdown difference mean for employers?

18th May 2020

When looking at the potential employment issues, given the slight ease in the lockdown in England, you wouldn’t necessarily think of Llanymynech Golf Club as your starting point. However, the course, which straddles the England and Wales border, is an interesting illustration of the differences in the relaxation of the lockdown rules between England and Wales.

Golf has been allowed to resume in England, whilst courses in Wales are to remain shut -slightly problematic when the course has holes in both countries. However, and more importantly, it does highlight the question of what a business which operates in England but has employees living in Wales should do.

Advice in England now is that if you cannot work from home, you should go back to work taking the necessary precautions. This is likely to see many businesses reopening over the coming weeks, including those close to the Welsh border.

However, in Wales, the lockdown has remained more stringent. People are advised they cannot travel “a significant distance” and those travelling from England are not allowed to cross the Welsh border.

For those who live in Wales, but work in England, this is an extremely confusing state of affairs. Should they listen to the advice in England on returning to work (where their employer is situated) or remain at home in accordance with the advice in Wales (where they live)?

A UK government spokesperson has said the guidance on workplace safety in Wales and England is similar and therefore people could travel to work if they could not work from home.

However, the rules could still give rise to potential issues. If an employee living in Wales refused to come into work in England, citing that they were listening to the advice of the Welsh government, what should the employer do? 

The crucial points for employers, in such an unclear situation, are to be reasonable and carefully consider the employee’s reasons for not coming to work, exploring whether there were any ways to overcome these issues. But ultimately if an employee is not at work and has no proper justification (eg. holiday or sickness), then the employer may not be obliged to pay them and there may even be grounds for terminating employment. Detailed legal advice would need to be taken before stopping pay or dismissing staff.