Summary


Article updated on 25th May 2021

In the ongoing streams of Government information and changing guidance around Covid-19, this article covers what employers need to know for managing your workforce and workplace safely on the return to work, and the elements to manage carefully as restrictions lift:

A word about furlough. In the March Spring Budget the Chancellor announced a 5 month extension to the CJRS furlough scheme, with employer contributions increasing from July (10%) and August 2021 (20%). Our furlough explainer and Q&A covers what you need to know, and includes a template letter for returning employees from full furlough, which can be tailored with our help for flexible furlough situations.

The roadmap out of lockdown sees Covid-19 restrictions eased over 4 stages with full restrictions due to be lifted on 21st June. Social distancing rules remaining in the near term. The successful vaccine roll out has been easing the path so far. Continued success of the vaccine rollout is top of the governments 4 tests which must be met before moving onto the next step of reopening. These are:

  1. Continued success of the vaccine rollout
  2. Evidence that the jabs are continuing to reduce hospitalisation and death from the virus
  3. Infection rates remain under control
  4. The risk from a new variant of the virus remaining low.

Roadmap out of lockdown: 4 stages

Latest Government Guidance: 17th May changes

The Government has pressed ahead with the next stage of the plan, despite the nervousness around the current Indian variant, which the Prime Minister warned may disrupt plans for lifting the final stage 4 restrictions on June 21st. These are the changes from 17th May:

  • pubs and restaurants can reopen for indoor service, with social distancing restrictions including the rule of six.
  • up to 30 people can meet for outdoor hospitality service
  • indoor venues, cinemas and soft-play centres can reopen, with social distancing in place
  • up to 30 people can attend weddings, receptions, wakes and funerals.
  • Travelling overseas for holidays and other non-essential purposes is no longer against the law. However a traffic light system is in place with countries rated Green, Amber or Red. More details below.
  • The requirement for the clinically extremely vulnerable to shield and not to go into work, ended from 1st April. But tread gently when addressing the return to work for this group. More below.
  • Work from home if possible’ remains the default until at least 21st June at the earliest. The Government’s review on this will conclude around 21st June. At time of writing, and with the vaccines deemed highly effective against the Indian variant, the signs are pointing to a ‘return to work’ message on the 21st June. We wait to see.
    It is time to think about new policies on home working for when the restrictions end.

Full and updated details on these changes, along with a helpful table of contents signposting to all the rules, guidance and business support can be found at www.gov.uk/coronavirus.

Employees refusing the vaccine

The vaccines are having a spectacular impact, dramatically reducing transmission and hospitalisations and the Government is hoping to vaccinate all over 50s twice by mid June and all adults by the end of July 2021. The NHS is further ramping the vaccine rollout as concerns rise over the Indian variant, inviting those in their mid 30s to receive jabs in May, in the hope that that all over 18s could be offered the vaccine in June 2021.

To date, the vaccine take up has been extremely high: over 90% of the over 50s have had 1 or 2 vaccinations, with younger adults anecdotally equally keen! Employers can be reassured that both of these factors will reduce the risk of Covid being transmitted at work, though to stress this shouldn’t mean any easing up of Covid-secure workplace requirements and practices.

Even so, going forward there will be vaccinated and unvaccinated people mixing in the workplace. Not all individuals will have the vaccine, either for health reasons, due to pregnancy, or to their beliefs. When it comes to employees who refuse the vaccine on the basis of their beliefs, employers can find themselves in un-chartered waters. Pre-Covid employment laws are not adequate to deal with the new working circumstances in which we find ourselves. And being a test-case is something employers would want to avoid.

It would likely be discriminatory to order staff to have vaccines under current contracts. Some firms are saying they will not hire new staff who refuse to have the jab. The legal issues around this are many, and beyond the scope of this article. The best course of action for employers is to encourage staff to be vaccinated, and publicise the benefits. If you have a diverse workforce, be extra mindful to address the specific concerns of those more likely to be hesitant, in particular black, Indian, Pakistani and Bangladeshi employees. Follow the Government and NHS advice as the vaccination programme is rolled out. Don’t order staff to get a vaccine or refuse to employ someone who has not had a vaccine. Contact us and take advice if you are facing this situation. Employers should consider having a policy around healthcare and vaccinations, including Covid-19, and take legal advice on this; we can help. Do everything you can to engage your people and encourage vaccine take up.

The CIPD has made available a lengthy FAQ which includes detail on plans organisations can make surrounding vaccinations and publicising benefits of vaccination.

Overseas holidays & isolating

The ban on overseas holidays has been replaced by a traffic light system, rating countries as green, amber and red, with varying rules that travellers are subject to on returning to the UK:

Countries labelled ‘green’: can be travelled to with no need to isolate on return
Countries labelled ‘amber’: travellers must isolate for 10 days on return
Countries labelled ‘red’: travellers must quarantine in a Government mandated hotel, at their own cost.

The complete list of which countries fall into which category, alongside testing requirements for travel is here. The traffic light system will be reviewed again in June ahead of the main summer holiday season, with more destinations making the ‘green’ list as we go into the summer. Only countries with high vaccination rates, low Covid and variant prevalence and comprehensive testing regimes will be rated ‘green’.

Remind employees that holidaying in countries labelled ‘amber’ will mean 10 day isolating on return. If employees can’t work from home during a post holiday isolation period, they will be put on Statutory Sick Pay. A reminder also that a countries and territories can be moved to a different colour, whilst on holiday. Sign up to receive Government email alerts on the latest changes.

Workers who have been shielding / those reluctant to return to the workplace

Shielding ended on 1st April 2021. Those who are clinically extremely vulnerable (CEV) will have received a letter from Department of Heath and Social Care informing that from 1st April they will no longer be advised to shield, and will no longer be eligible for Statutory Sick Pay on the basis of being advised to shield. The letter advises CEV people will be able to “begin to follow the national restrictions alongside the rest of the population” from 1st April, although they are “still advised to take extra precautions” including strict social distancing and low levels of social contact’. It also states that if they cannot work from home, they are advised to attend the workplace.

The new advice was published in line with the Government’s proposed roadmap out of the current restrictions in response to dramatically reduced Covid-19 cases in England. Over 90% of critically extremely vulnerable people have reportedly had their first dose of vaccine. What should employers do if an employee does not wish to return to work, either because they were shielding, they are caring for or sharing a home with someone who is vulnerable, or they are afraid to do so?

Employers will be in a stronger position here once the message to ‘work from home where you can’ has been lifted, hopefully on June 21st 2021. If you have a member of staff who is reluctant to come back to the workplace, it is unlikely you will be able to force them to do so before then. You should wait until the Government definitively changes its working from home guidance in England back to working in the office, if you want to be most certain of following the correct approach.

For CEV people who were asked to shield and not go into work, employers will still need to take a person’s individual situation into account. This is because of the health and safety risk of forcing them back into the workplace with the risk of them contracting COVID-19 at the workplace. Individual discussions should always take place with these categories of workers. After over a year of being asked to shield due to Covid, the clinically extremely vulnerable may allege disability discrimination protection and request reasonable adjustments be made.

As employees may feel uncertain about returning to work, employers can help with the transition for their clinically extremely vulnerable employees, ensuring that robust measures are put in place for them to return to Covid-secure workplaces. This includes agreeing a plan for their returning with employee, taking account of the employer’s policies in relation to COVID-19 and any necessary adjustments to enable the employee’s return. The employer should update their Risk Assessments for these changes and for these particular groups of staff.

The NHS will maintain the Shielded Patient List and, should levels of Covid-19 increase in communities, those at highest risk may be advised to take more restrictive measures to keep themselves safe. Employers should therefore plan for these employees having to work from home again.

NHS test & trace

The UK’s NHS test and trace, also known as contact tracing, is a system for identifying people who have been in close contact with someone who has tested positive for Covid, and asking that individual to self-isolate for 10 days, even if they have no symptoms, and to get a test if symptoms develop. It is designed to control the spread of the virus. Each UK nation has its own contact tracing service. If an individual is contacted and told to self-isolate, they are under a legal requirement do so and to book a test within 5 days. Failure to do so (or encouraging someone not to self-isolate – by asking them to come back to work, for example) can result in a fine from £1000 upwards. (Hospitality businesses will continue to help Test and Trace by collecting contact details from customers, usually via QR codes).

Employers are already fully aware of the disruption of staff being asked to self-isolate for 10 days. Looking ahead, the signs are that after June 21, people who have been fully vaccinated will still be faced with having to isolate for 10 days if they come into contact with someone infected with Covid. We will wait to see.

There is also the NHS Covid-19 app for smartphones, which alerts users if they have been in contact with someone who later shares that they have had a positive test via the app.

Working from home

Home working is still the default until June 21st 2021, the earliest date by which all legal restrictions can be lifted.
Employers will need to notify staff that they will be working from home; a familiar drill by now. But if you need to recap, read our employers’ guide to homeworking, which includes a template homeworking policy, risk assessment, guidance and resources.

Government’s 5 steps to working safely during COVID-19

The Government guidance for making workplaces ‘COVID- secure published when the first lockdown ended, set out 5 practical measures that employers must adopt once workplaces can open again:

  • to maintain the critical two metres social distancing, what to do where this is not possible and
  • adopting very good hygiene and cleaning practices at the workplace.

1 work from home if you can

All reasonable steps should be taken by employers to help people work from home. But for those who cannot work from home and whose workplace has not been told to close, our message is clear: you should go to work. Staff should speak to their employer about when their workplace will open

2 Carry out a Covid-19 risk assessment, in consultation with workers or trade unions and implement it

This forms the core of your return to work plan. Take the opportunity to consult with staff, so that when they do return to work on site, they have already been consulted and given their views on making their workplace Covid-19 secure.

If possible, employers should aim to publish the results of their risk assessments on their website; the Government expects all businesses with over 50 employees to do so. Further details on risk and completing risk assessments are contained in the guidance for making workplaces ‘covid-19’ secure.

The Health & Safety Executive (HSE) have published a toolkit to assist employers to manage and assess risks at work arising from the COVID-19 pandemic and more generally.
HSE risk assessment toolkit overview and,
HSE risk assessment detail .

3 Maintain two metres social distancing wherever possible

Employers should re-design workspaces to maintain two metre distances between people by:

  • staggering start times
  • creating one way walk-throughs
  • opening more entrances and exits, and/or
  • changing seating layouts in break rooms.

4 Where people cannot be two metres apart, manage the transmission risk 

Employers should consider:

  • putting barriers in shared spaces
  • creating workplace shift patterns or fixed teams minimising the number of people in contact with one another, and/or
  • ensuring colleagues are facing away from each other.

5 Reinforce cleaning processes 

Workplaces should be cleaned more frequently, paying close attention to high-contact objects like door handles, stair rails, and keyboards. Employers should provide hand washing facilities or hand sanitisers at entry and exit points.

Government guidance for 14 workplace situations

The Government guidance consists of 14 workplace guides for different workplace situations, listed below:

Close contact services: hair & beauty, therapists, tailors
Construction and other outdoor work
Factories, plants and warehouses
Heritage Locations
Hotels & other guest accommodation
Labs and research facilities
Offices and contact centres
Other people’s homes
Performing Arts
Providers of grassroots sport and gym/leisure facilities
Restaurants, pubs, bars & takeaway services
Shops and branches
Vehicles
The visitor economy: hotels, guest accommodation, indoor & outdoor attractions, business events & consumer shows.

Each guide sets out practical considerations for employers on how to set up a COVID-19 secure workplace. You will need to put in place as many as are appropriate for your workplaces. Expect these guides to be updated regularly so check them frequently.  You may of course need to follow more than one guide.

As COVID-19 is a new illness, employers must follow this official guidance as it is updated and adopt any additional steps as required.

The guides also confirm that the wearing of face coverings is optional and not required by law at the workplace, unless there is a specific requirement for PPE because of the industry or workplace setting.

Health & Safety compliance

HSE have the power to undertake spot checks and impose fines and workers can complain to the HSE if they think the workplace is not ‘COVID-19 secure’. HSE says workers should follow up with their employer first before contacting them. HSE have stated that in their experience of complaints so far, employers usually have not understood what is the right thing to do, rather than deliberately breaching health and safety laws, and when HSE has contacted the employer, the employer has worked with HSE to remedy the situation.

Health & Safety case law shows that where the employer has been liable, it has usually been a result of failing to implement the employer’s own system for making the workplace safe in line with its own risk assessment.

Following the guidance above will help employers to comply efficiently, to reassure your staff that theirs is a COVID-secure workplace and is a major part of an employer’s compliance with Health & Safety Law.

Each guide includes a downloadable notice which employers are encouraged to display in their workplaces, to show that they have followed the guidance. 

It goes without saying that employers will still need to follow their legal obligations for Health & Safety, Employment and Discrimination Law.

Continue to communicate very closely with your employees as they return to work and in the coming months if there are changes to the current guidance and / or local lockdowns take place. Be ready to review regularly your risk assessment and update it, and communicate it again with your staff.

Employers have a duty to take reasonable care and steps to ensure the safety of their workers at work – whether in the workplace or at home. This includes physical and mental safety. What is ‘reasonable’ will depend upon the:

  • type of workplace
  • likelihood and gravity of harm
  • costs and practicality or preventing it; and
  • justifications / defence for running any risks

COVID-19 has been designated by the UK Government as a ‘serious and imminent threat to public health‘. This means that the above Health and Safety duties are critical. If employers do not take adequate measures to protect their workers when returning to work, under the Employment Rights Act 1996 (s44), workers have the right to:

  • walk out;
  • refuse to return to work; or
  • take appropriate action to protect themselves or fellow workers

Workers are protected from any detriment they suffer from an employer as a result of workers taking the above protective action and any dismissal would be automatically unfair. Therefore employers should:

  1. carry out a risk assessment, as stated above, and
  2. maintain very good two-way communication with staff so concerns can be addressed.

The Information Commissioner’s Office has also published a new set of FAQs for employers on data protection issues employee temperature testing

Mental Health on return from lockdown

Mental health will have been a real issue for many during the lockdown who will want to return to work for the social effects as well to get “restarted in a more familiar environment”.

Some employees may find prospect of returning to work may be even more worrying than being at home dealing with feelings of loneliness and anxiety. Having been consistently urged to stay at home to protect the NHS and save lives, there will be widespread concern about stepping out beyond home boundaries, sending children back to school, getting back onto public transport, being back in close proximity with colleagues or just having to resume a “normal” working day.

An employer who wants reintegration to be as smooth as possible will be very much aware of these issues and should:

  • Develop a clear communication plan in place to allay concerns by setting out what the employer plans to do to help employees
  • Provide support as necessary to help those who are struggling to deal with the return to the workplace.

Changes to salary and benefits on return from lockdown

Please note that from December 1st 2020, employers cannot use the CJRS grant to fund the (statutory or contractual) notice pay for employees who are being made redundant. Nor can the CJRS be used to fund the statutory redundancy payments for employees with over 2 years service. 

Now may not be the time for any redundancies which, in the short term use up even more cashflow paying the salary and benefits for employees’ notice periods and the statutory redundancy payment for employees with at least 2 years service. These statutory redundancy payments will need to be made at 100% salary.

Employers who have furloughed workers under the Coronavirus Job Retention Scheme, will need to review the situation each month.

Employees who may have reluctantly agreed to these arrangements while under lockdown and may be more likely to challenge these once they are asked to return to a more normal working pattern.

Therefore, employers will need to justify any decisions to prolong these arrangements or to put in place new measures, ensuring employees are properly informed (and, where necessary, consulted with) to ensure there is a clear understanding of the rationale.

As other industries announce redundancies workers will be concerned and may see the fact that they have been furloughed as indicating they are more at risk of redundancy. Ensure there is a one-to-one return to work and appropriate team meetings to re-enforce returning workers as part of the team.

Flexible working on return from lockdown

Employers would be wise to consult with workers individually about their situations to enable an effect and safe return to work. As we have already stated above the Government is recommending that employers ensure that staff work from home where they can but there is now a drive to get workers back to the workplace.

The lockdown has seen a more wide spread adoption of home working and it may be deployed as the situation requires. For example if a worker has to shield for their own or family reasons or is contacted by test & Trace or home schooling is re-introduced, home working may be required for some weeks and months. Workers may be at times unfit to work and be back into the Statutory Sick Pay (SSP) scheme.

Now is the time to update what is needed for home working on a longer term basis e.g changes to employment contract, risk assessment and identifying the correct way to use secure IT systems and the new video conferencing, messaging, collaboration platforms etc.

Our home working article covers all the elements Employers and HRs need to know in order to get home working right.

Home working going forward

Employers have been implementing remote working since the lockdown of course, and many employees will continue to work from home well into 2021.

In normal circumstances, anyone working from home should undertake a risk assessment of their home workplace.

Employers are still responsible for employees’ Health and Safety and welfare when they are working at home.

Communicate with workers your policy on:
– home working,
– work travel, and
– precautionary isolation.

Read our guidance on managing home working effectively and compliantly, which includes a template risk assessment and home working policy.

What are employees’ rights if working from home.

Consider what pay your employees will receive if they work part-time, to fit around caring for children/elderly relatives.
Be as agile and flexible as you are able to ensure as many employees as possible to continue working.

Conduct internal and client meetings where appropriate using virtual meetings/video conferencing/live streaming.

Planning for future disruption

There will be continued disruption in the months ahead, so businesses need to continue to:

  1. Identify business critical roles and how they can be maintained.
  2. Identify any vulnerable employees, such as pregnant women, those over 70 and those who originally received a letter from the NHS at the start of the pandemic, explaining that they must shield. Assess and agree the adjustments needed for them for example long term working from home.

    Where travel is absolutely necessary:
    – consider what protective measures should be put in place,
    – ensure that protective equipment is sourced and ordered
    – check the FCO advice for the country in question.

  3. Identify the minimum safe level of workers required to continue operating, and how that can be maintained in the worst-case scenario. Identify the point at which the business may need to cease operating temporarily and speak to us about the employment law consequences.
  4. Plan for staff working from home on a longer term or more regular basis in accordance with the Government guidelines or flexible working requests, because parents are still home-schooling until 8th March 2021 or shortly after.
  5. Plan for a local lockdown which means workers have to work from home again and non-essential travel is curtailed.
  6. Plan for vulnerable and/or shielding staff to have to go back to home working or taking sick leave.
  7. Some staff will be keen to return to the workplace and others may be very nervous of the health risks of travelling to and attending work.

At what point should an employer close the workplace?

Businesses need to comply with any local lockdown imposed as a result of moving into a higher alert level, and imposed by heir local authority. Aside from this, some thoughts on when an employer might close the workplace.

  1. The Acas guidance advises that if someone with COVID-19 comes into a workplace, the workplace does not necessarily have to close.
  2. In England, the local Public Health England health protection team (HPT) will get in contact with the employer to:
    – discuss the case
    – identify people who have been in contact with the affected person.
    – carry out a risk assessment
    – advise on any actions or precautions to take.
  3. A risk assessment of each setting will be undertaken by the HPT with the employer. Advice on the management of staff and members of the public will be based on this assessment.
  4. The HPT will also be in contact with the case directly to advise on isolation and identifying other contacts and will be in touch with any contacts of the case to provide them with appropriate advice.
  5. Advice on cleaning of communal areas such as offices or toilets will also be given by the HPT.

Review the plan each week and communicate regularly to staff.

Things will continue to change quickly as we move along the roadmap out of lockdown, and support for businesses lifts as the restrictions lift. If you want to talk through your plans or need specific advice related to the effect of Covid-19 on your business or workforce planning, please get in touch, details below.


Contact us

For more information or queries about issues discussed in this article, please contact by email.

To speak directly with or any other of The Legal Partners team of specialist business and HR lawyers based at our Richmond UK office, or our partner lawyers in Singapore or Guanzhou, please call +44 203 755 5288

This article explains the main legal issues and common situations to consider. It is not a substitute for legal advice. Please get in contact to discuss your particular issue or queries.

Contact us

For more information or queries about issues discussed in this article, please contact by email.

To speak directly with Richard or any other of The Legal Partners team of specialist business and HR lawyers based at our Richmond UK office, or our partner lawyers in Singapore or Guanzhou, please call +44 203 755 5288

This article explains the main legal issues and common situations to consider. It is not a substitute for legal advice. Please get in contact to discuss your particular issue or queries.