Although the Government relaxed its work from home guidance in July, the reality is that many employers will have only been expecting people to return to the workplace in the last week or in some cases not until early 2022 and even then, many will adopt a hybrid working policy.
Yet the risk of contracting COVID-19 remains and will be a genuine one for some time. So employers still have a tricky tightrope to walk in terms of balancing this and their legal responsibilities with a desire to keep their businesses afloat or moving forward.
Natasha Forman and Francesca Lopez are Senior Associates in the Employment Team at Kingsley Napley LLP offer five key areas employers need to consider:
“No jab, no job”?
The Equality and Human Rights Commission and the CIPD have both spoken out against a “no jab, no job” approach, pointing out that it is likely to be unlawful and may discriminate on the basis of disability, or religious or philosophical belief.
Acas and the Government’s own COVID-19 vaccination guide for employers recommend employers encourage their employees to get vaccinated without making this mandatory (with the exception of the registered care home sector).
However with the rise of the delta variant and stricter approach being taken by some organisations in the US, employers will need to make their own judgment. A practical compromise might be a requirement that if staff are not double vaccinated they should be prepared to take lateral flow tests to prove they are not infected before coming into the workplace. Certainly this issue will need to be monitored very carefully.
The “pingdemic”
Since 16 August, those who receive a contact alert via the NHS Test & Trace App are not required to self-isolate if they are fully vaccinated or otherwise exempt, but the individual is advised to take a PCR test. Employers are not expected to check whether an individual is exempt from self-isolation. However, if they know the employee is not exempt from self-isolation and fails to do so, that is an offence and punishable by a fine unless the individual is participating in an approved daily contact testing scheme (available to employers in sectors providing essential services such as food distribution and production, waste collection and energy.)
Likewise, it remains an offence for employers to allow an employee to attend the workplace if they are aware that the worker is legally required to self-isolate because they have tested positive for COVID-19.
Self-isolation & sick pay
If a worker cannot work from home, employers should pay statutory sick pay as a minimum and should consider giving the individual in question the option to use their paid leave days. Small and medium sized employers (with fewer than 250 employees) may be able to reclaim their costs for Statutory Sick Pay.
Health & safety obligations
By now most employers will hopefully have undertaken a health & safety risk assessment for their workplace and will have considered issues such as desk-spacing, ventilation, cleaning, lifts, an infection risk checking process for visitors entering their premises and so forth. The position on the wearing of masks is now up to employers but most seem to be taking the approach that masks are sensible and recommended for enclosed/crowded spaces and request people to wear them accordingly. This is also reflected in the updated Government Guidance.
Government Guidance also states that, in carrying out a risk assessment, employers should consider the different ways COVID-19 can spread and put in place measures to reduce the risk of each of those occurring. Failure to do this may be considered a breach of health and safety law.
The Guidance points out that employers have a legal duty to consult workers on health and safety matters and encourages them to listen to concerns raised by staff and explain how those will be addressed and the risk of COVID-19 managed. We recommend consulting with the workforce on the results of any risk assessment that is undertaken.
If employees have concerns that employers are putting commercial interests before the health and safety of staff, they may raise a grievance or go through their employer’s whistleblowing channels.
Encouraging a return-to-work vs coercion
It is recommended that employers consult with their workforce about a return to the workplace with as much notice as possible and incorporate a gradual easing in plan into the return.
Whilst those who are vulnerable (ie people with disabilities, immune conditions, who are pregnant or have caring responsibilities) are no longer advised to shield, it is nevertheless prudent to continue to support these individuals and take their needs into account, as well as those with childcare responsibilities. Doing so will also minimise the risk of a discrimination claim. Likewise those are not yet fully vaccinated should be given some leeway.
Employers should expect to see an increase in formal flexible working requests with employees seeking to make permanent certain adjustments to their working pattern and location to reflect what they were doing during lockdown. It would be wise to approach each request with an open mind and to follow the applicable legal process in the handling of such requests. Discrimination claims can arise and each request should be considered carefully to seek to avoid potential pitfalls.
It should be hoped that any refusal to cooperate a return to the workplace request would not lead to disciplinary or other consequent action but, if it did, the employer would need to be ready to justify how it addressed its obligations.
Conclusion
Whilst many employers are keen to get people back to work, it is advisable to ensure there is room for flexibility and compromise in any new requirement or policy.
Employers have significant health and safety obligations and a duty of care in relation to their staff and many employees will be acutely aware of these in the current climate. Employees have a number of potential claims they can raise in this area, as well as the potential to bring disability or sex discrimination claims, and constructive dismissal claims.
A consultative approach, clear communication, prudence and reasonable expectations is likely to be more successful than an arbitrary approach.
