This article was updated on August 22nd 2021.
England entered step 4 of the Spring Covid-19 Response roadmap out of lockdown on 19th July 2021. All legal restrictions relating to social distancing and the wearing of masks were finally lifted and the instruction to work from home was removed, paving the way for a return to the workplace.
For employers, the practical and employment law headaches are far from over. Some legal restrictions have lifted. The latest, 16th August rule change – that the double vaccinated and over 18s no longer have to isolate if they come into contact with someone who has tested positive for the virus – will be a huge problem lifted for Employers. But Rishi Sunak’s rallying cry to return to the workplace became a cautious plea, ‘gradually please’ from the Prime Minister and the highly cautious tone remains.
Although Covid-secure workplace guidance has been updated for step 4, there has been a clear shift of responsibility from the Government to employers and individuals to determine how to return to operate safely.
The result is that employers are unclear on what’s required or expected of them now.
This planning article continues to cover the latest changes and what these mean for employers, the key challenges facing employers, and some tips on how best to address these.
A word about furlough. The CJRS furlough scheme ends on September 30th 2021. Employer contributions increase from July (10%) and August 2021 (20%). We are seeing no signs of the CJRS being further extended beyond 30th September 2021. Our furlough explainer and Q&A includes a template letter for returning employees from full furlough, which can be tailored with our help for flexible furlough situations.
Latest Government guidance for working safety from 19th July onwards:
The Government published updated guidance on working safely during Covid-19 on 14th July 2021, giving employers only 2 working days to react before ‘freedom day’ and, its fair to say, providing more questions than answers.
The existing 14 guides to working safely were replaced by 6 new sector specific guides. Because businesses still have a legal duty to manage risks to those affected by their business, employers should use this guidance to consider risk at their premises, and decide what mitigations are sensible.
The key changes under the updated guidance from 19th July onwards are:
The key changes under the updated guidance from 19th July onwards are:
- The requirement to work from home if possible has been removed. The Government however ‘expects and recommends a gradual return to workplaces over the summer”.
- Workplaces no longer need to implement social distancing (2 metres distance or 1 metre +), customers are workers no longer need to keep apart from those that they don’t live with.
Wording about staggering staff arrival and departure times / one way flow systems, floor signage and minimising indoor meetings has been deleted from the guidance.
- There is more emphasis on ensuring sufficient ventilation – maximising the supply of fresh air essentially, identifying poorly ventilated areas as part of the risk assessment and increasing air flow to these points etc..
- The Government dramatically shifted its messaging about face coverings. It had set the expectation that masks would not need to be worn in the workplace. The Government has abolished the mask mandate but at the same time it has 1) suggested that employers should consider encouraging their use, particularly in indoor areas and enclosed/crowded spaces and 2) that it “expects” people to wear them in shops and crowded spaces nonetheless. The Government is in an unenviably position admittedly, but this is a hefty Westminster fudge that is leaving a difficult aftertaste for employers.
Otherwise, much of the content of the ‘working safely during Covid-19’ guidance remains, including sections on cleaning and hygiene, and on reducing contact between people (using rotas and fixed teams, screens/barriers, reviewing layouts, limiting sharing of and increasing cleaning of workstations).
Employers should remember that simply following this guidance does not absolve the business of its legal responsibility to take all practical steps to protect the health and safety of staff.
Employers should therefore focus on their legal obligations to:
- Carry out/review sufficient risk assessments: in the light of the revised guidance, and given the prevailing situation in the area (rising infection rates etc). The guidance expects that businesses with over 50 staff will publish their risk assessments on their website.
- Continue to communicate very closely with your employees, consulting with them or representatives on any new or revised measures to protect their health & safety at work that come out of your revised risk assessments. Keep reviewing regularly your risk assessment and update it, again in consultation with staff.
This guidance will be amended of course in the coming months, check for updates at www.gov.uk/workingsafely.
Health & Safety compliance: a bit more detail
HSE have the power to undertake spot checks on businesses’ Covid-19 safety practices, and impose fines. Workers can complain to the HSE if they think the workplace is not ‘COVID-19 secure’.
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 Covid-19 secure guidance will help employers to comply efficiently. It reassures your staff and customers and is a major part of an employer’s compliance with Health & Safety Law.
It goes without saying that employers will still need to follow their legal obligations for Health & Safety, Employment and Discrimination Law.
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 as stated above:
- carry out a risk assessment, and
- maintain very good two-way communication with staff so concerns can be addressed.
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 .
Managing employee absence in the ‘pindemic’
The huge staffing disruption cause by the pindemic in late July should now be easing, as from 16th August the rules changed so that the double vaccinated will now no longer have to isolate if they come into contact with someone who has tested positive for the virus. This now applies across the UK. Instead of having to quarantine for 10 days, they are now advised to take a PCR test, wear a face covering in enclosed spaces and to limit contact with others, especially the clinically vulnerable.
Employers might reconsider the requirements on their staff to disclose any NHS Test and Trace notifications to the NHS Covid app ‘pings’, and communicate the new rules even though it’s likely everyone knows. It goes without saying that contingency planning for the disruptions this may cause as staff and schools return from holiday.
The updated Covid-19 guidance contains a remarkable new instruction to employers. As restrictions are removed, the Government is effectively asking employers to do the test & trace ground work for the NHS;
If any of your workers test positive, or if you become aware of a positive case in the workplace:
- Call the Self-Isolation Service Hub on 0203 743 6715 as soon as you are aware of the positive case
- identify and provide the names of any close workplace contacts to NHS Test & Trace, to ensure, as the guidance innocently puts it ‘ all workplace contacts are registered with NHS Test & Trace and can receive the necessary public health advice, including the support available to help people to self-isolate’.
- Inform the local authority public health team.
Finally, remember to update policies to comply with these requirements.
Employees refusing the vaccine
So far, over 70% of all adults have had both jabs. A level sufficiently high to have created a ‘protective wall’ the government has said, that facilitated the ending of all legal restrictions on social contact. The younger population also seem to be steadily taking up the offer and 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.
For now, the best course of action is 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. Don’t order staff to get a vaccine or refuse to employ someone who has not had a vaccine. 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. Contact us and take advice if you are facing this situation.
The Government has provided minimal steer to employers in deciding their approach to vaccination for their staff. It has said that vaccination will be a requirement for all those working in care homes rom November 2021 (unless a clinical exception to it applies). In addition full vaccination will be a condition of entry into nightclubs “and other venues where large crowds gather” from the end of September 2021.
The Covid-19 vaccination: guide for employers published by Public Health England on 12th July 2021 simply suggests that employers should encourage employees to get vaccinated, and provides suggestions for how to achieve this. (In contrast, the Welsh government’s Covid vaccination guidance has stated that the pass should not be used for employment purposes, such as job applications or assessing workplace risk and that it would not be appropriate to treat non-vaccinated staff differently from vaccinated staff.)
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 a comprehensive guide for employers on managing the impact of the vaccine on their workforces and plans organisations can make surrounding vaccinations and publicising benefits of vaccination.
Testing and the NHS Covid pass
The Government has confirmed that it will no longer be offering free workplace lateral flow tests to businesses – who had registered for the workplace testing programme – after the end of July 2021. However it has confirmed that free lateral flow tests will continue to be provided to the public until at least the end of August 2021.
Businesses of less than 50 staff, sole traders and the self employed have always been required to access free lateral flow tests through their local authority via local testing sites or order at home kits.
Employers who were part of the workplace testing programme now need to decide whether to fund it privately, discontinue it or ask their workers to access free NHS rapid flow test kits, which can be ordered online at .gov.uk, and to test themselves twice a week at home.
Lateral flow tests are useful for finding out if someone is infectious now, and able to transmit the virus. PCR tests are useful for confirming suspected cases where a person is showing symptoms.
Testing forms a major part of Covid-19 status certification, or as it is also dubbed, the vaccine passport. The NHS Covid Pass can show not only that someone is fully vaccinated, but also to provide evidence of a negative lateral flow or PCR test taken within the last 2 days.
Use of the NHS Covid pass is currently voluntary (outside international travel). Business will need to think carefully about whether its use is appropriate in an employment context. It’s too early to say what market practice will develop in this area. We think it is unlikely that many employers will use the NHS Covid pass as part of their return to the workplace strategy. Seek legal advice on your own particular circumstances if you are considering this approach.
The Information Commissioner’s Office guidance on vaccination and Covid status checks makes it clear that employers cannot check or record employees’ Covid-19 status on a ‘just in case’ basis but must instead have a clear, necessary and transparent reason for doing so (such as where employees work somewhere where they are more likely to encounter those infected with Covid-19, or could pose a risk to clinically vulnerable people).
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:
The updated list of which countries fall into which category, alongside testing requirements for travel is here. 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.
Changes to salary and benefits on return from lockdown
Furlough is still running until the end of September, with reducing help from the Goverment. Employers who have furloughed workers under the Coronavirus Job Retention Scheme, will need to review the situation each month. The job market is buoyant according to media headlines, and there are still over a million workers still on furlough.
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. Recent employment tribunal cases judging the decisions of employers in the first lockdown in 2020 have shown that if employers fail to take into account the possibility of furlough when making redundancy decisions, then this can be an unfair dismissal.
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.
Planning for future disruption
We are learning to live with Covid- 19, and there will be disruption going into the autumn and winter, so businesses need to continue to:
- Identify business critical roles and how they can be maintained.
- Identify any clinically extremely 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.
- 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.
- Plan for staff working from home on a longer term or more regular basis
- Plan for a local lockdown which means workers have to work from home again and non-essential travel is curtailed.
- Plan for vulnerable and/or shielding staff to have to go back to home working or taking sick leave.
- 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.
- The Acas guidance advises that if someone with COVID-19 comes into a workplace, the workplace does not necessarily have to close.
- 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.
- 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.
- 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.
- 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 as we move through the 4th, final stage the roadmap out of lockdown. 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 with us, details below.