Since the first Covid-19 lockdown on 16 March 2020 it has been a rollercoaster of a ride for employers and this summer looks set to be more of the same. In this update we cover the latest guidance and what it means for employers.
We reached England’s ‘Freedom Day’ on 19 July 2021 with many of the imposed pandemic restrictions being lifted. Depending on personal circumstances, this has been greeted with relief, concern, confusion and indifference. We are now in the midst of a ‘pingdemic’ with employers grappling with staff absences due to the NHS Covid-19 app and increasing Covid infection numbers.
Further changes to self-isolation rules are due on 16 August and new government guidance has been issued for employers on returning to the workplace. But, what does this all mean for employers?
Freedom Day – 19 July 2021, implications for employers?
As England has now moved to Step 4 of the roadmap out of lockdown, the government is no longer instructing people to work from home and employers are encouraged to plan and consult on a gradual return to the workplace over the summer. Furthermore, social distancing restrictions have been removed, including in the workplace. But, with Covid numbers and staff absences soaring, employers owe a duty of care to staff and should consider new government guidance on how to work safely (see below). Caution cannot suddenly be thrown to the wind.
Employers are still required to comply with their common law duty of care to provide a safe place of work. Along with duties under the Health & Safety at Work Act 1974 to take all reasonably practicable steps to assess and protect against risks to the health and safety of staff and visitors. So, this does not mean an end to precautionary steps employers have been taking, such as risk assessments, temperature tests, sanitising and social distancing, masks etc. In fact, many employers will be best placed to retain their current precautionary measures.
Employers will also wish to manage the risk of claims based on an employee asserting their right to stay away from the workplace or even work if they reasonably believe that there is a serious and imminent danger to them. Such claims have increased during the pandemic and the requirement of ‘reasonable belief’ can be addressed by employers where there are appropriate Covid-19 measures in place.
Arguably such claims should be harder for employees to succeed on with the government’s instruction to work from home changing. See our article on an employer successfully managing this risk when an employment tribunal claim was brought by an employee here.
New government return to work guidance
The government has updated its Working safely guidance, which applies from 19 July 2021, setting out its expectations and guidance for a gradual return to the workplace over the summer. The guidance, which will be kept under review, is now in six sector specific guides covering various workplaces, for example: offices, factories, warehouses and labs are now grouped together with similar indoor environments.
The guidance does not override employers’ existing legal obligations relating to health and safety, employment, and equality duties in relation to staff and customers. Instead, it is non-statutory guidance to be taken into account when complying with those duties.
The guidance sets out actions to be prioritised for the protection of staff and customers.
- appropriate ventilation;
- health and safety assessments;
- taking reasonable steps to mitigate risks;
- regular cleaning;
- turning away people with Covid-19 symptoms;
- if a worker is self-isolating they must not be allowed to attend work;
- facilitating individuals to check into premises; and
- communicating and training on health and safety measures in place.
The government advice includes reducing the number of people that staff come into contact with. For example, measures to reduce contact between persons, using “cohorting” or fixed teams reducing who an individual works with to a small number, using screens or barriers where individuals are close to each other, or working back to back or side to side, rather than face to face. Workstations should be assigned to individuals and where hot-desking is needed then there should be adequate cleaning.
As of 19 July 2021, face coverings are no longer legally required to be worn in England. But, there is still a government expectation and recommendation that face coverings are used by workers and customers in enclosed or crowded spaces.
According to the recent guidance, employers should consider using signage in appropriate locations to encourage staff to wear face-masks. They will need to take into account reasonable adjustments for staff and customers with disabilities and balance this with obligations towards workers under employment law and health and safety legislation. It may be more difficult or not possible for such persons to wear a face-covering.
Employers should carry out their own risk assessments when it comes to face covering and guidance applicable to their type of work environment.
Vulnerable and pregnant staff
Employers will doubtless have staff who have health and safety concerns about returning to the workplace. The guidance recommends that employers should ensure they remain responsive to workers needs and give extra consideration to workers who are at higher risk, and with mental and physical health difficulties. This could include pregnant women and staff who may have a disability as defined under the Equality Act 2010.
Note staff who are clinically extremely vulnerable are no longer advised to shield. Employers should continue to provide support by discussing individual needs and taking any additional precautions advised by their clinicians.
Employers should also take into account the updated guidance in England on clinically extremely vulnerable individuals to Covid-19, which was updated on 20 July 2021. The guidance recommends measures to protect such workers including regular testing and such individuals adopting a more cautious approach as restrictions are lifted. The guidance suggests that if individuals need support to work from home or the workplace they may apply to the Access to Work government scheme to provide support for the disability related costs of working that are beyond standard reasonable adjustments.
On 13 July, new Acas guidance was published on hybrid working to support employers in considering staff working from home and at the office as an option and how to fairly introduce hybrid working in the workplace. In addition, Acas published a survey whereby around half of employers are anticipating an increase in employee requests for flexible working from home or remotely for all or part of the time.
Employers should take into account the benefits of home-working in retaining staff, maintaining wellbeing, and managing Covid-19, against potential business needs. See our article with advice for employers in dealing with flexible working requests for more information.
Self-isolation from 16 August
From 16 August 2021, individuals who have been double vaccinated will no longer need to self-isolate if they have been in contact with a positive case of Covid-19. The advice to take a PCR test will continue to apply.
Anyone who tests positive following the PCR test will still be legally required to self-isolate, regardless of their vaccination status. This could lead to potential equality and pay issues for employers. For example, where an individual receives less pay while self-isolating due to not being double vaccinated by reason of a ‘protected characteristic’ under the Equality Act 2010. This could arise where staff have not been double vaccinated due to pregnancy, religion or belief, or a disability.
NHS COVID Pass
It is worth employers monitoring the development of the ‘NHS COVID Pass’. Government guidance on this was last updated on 16 July 2021.
Residents of England can now show their Covid status through use of the NHS COVID Pass.
COVID status shows a person’s risk of transmitting Covid-19 and is based on vaccine and test data. People in England with a low risk of transmission can get a COVID Pass through the NHS App, 119 service or online. Currently it can be used when travelling abroad and from Monday 19 July, individuals may be asked to demonstrate their COVID-19 status at places that use the service in England as a condition of entry to a venue or event.
The government has recently announced that businesses in England can use the NHS Covid Pass, with guidance stating it is voluntary for individual organisations, but encouraged in facilities or events where people are likely to be in close proximity to a large number of people from other households for a sustained period of time, which is likely to include large business events, including outdoors. It is possible use of the NHS Covid Pass may be developed for further use in the workplace to help prevent transmission.
Furlough scheme coming to an end
The government’s furlough scheme has been extended until 30 September 2021, but employers should be planning ahead if this is going to affect them. For details of the tapering down of employer support under the scheme from July to September, see our updated article on key information on the furlough scheme.
Options for employers with the end of the furlough scheme in sight include:
- employers choosing to extend the furlough scheme themselves beyond the end of the government scheme;
- lay-offs and short-time working;
- redundancies; and
- changing terms and conditions of employment.
See our related article on restructuring and redundancy procedures, which provides useful guidance on carrying out a fair redundancy procedure.
We are frequently advising employers on these issues and the advice provided will depend on the circumstances involved. Do contact us for related advice and assistance.