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In part one of our 'Living with COVID' series, we answer some of the initial key questions for employers and employees.
On 21 February 2022, Boris Johnson announced that all remaining restrictions (including mandatory isolation and mass testing) to deal with the COVID-19 pandemic are to be lifted in England from 24 February 2022. However, this announcement did not come because the pandemic is now over, or because COVID-19 no longer poses a risk to health or in some cases, life. The Government considers that due to the wide-spread and successful vaccination programme, the time has come to dispense with remaining restrictions on people liberties and that we no longer “…need laws to compel people to be considerate of others”. But, what does this all mean in a workplace context?
Christine Hart, Senior Associate and employment law expert, and our health and safety team answer some of the initial key questions that this may pose for employers and employees alike.
The recent announcement to remove all remaining legal restrictions applies only in England. The Devolved Administrations (Wales, Scotland and Northern Ireland) are set to adopt a more cautious approach initially with face covering, testing, distancing and contract tracing remaining in certain settings. Therefore, if your business operates across these jurisdictions, care should be given to ensure that you fully understand what specifically applies.
In England:
In terms of health and safety, no sudden movements (at least for now), maintain the ‘status quo’ and keep things carefully under review up to 1 April 2022. All businesses should, at the moment, continue to follow the principles set out in the ‘Working Safely During Coronavirus’ guidance. Since 1974, employers have had legal duties to positively ensure the health, safety and welfare of employees, workers and non-employees (customers, consumers, visitors, members of the public etc.) This means a legal duty to eliminate or manage any risks arising from their business operations, which includes the management and mitigation of transmission of any highly infectious diseases that occur within a workplace setting.
Therefore, whilst any remaining COVID laws might be lifted, health and safety laws apply. Employers should continue to carry out and review health and safety risk assessments, which should include the risk of COVID-19, and take reasonable steps to mitigate against the transmission of COVID within the workplace setting. This should include asking those who test positive to self-isolate and not look to attend work. All risk assessments should be reviewed, and any relevant information, instruction, training or guidance (policies or procedures) may need to be updated or refreshed to take into account any of the recent changes as required. For example, employers may now want to revisit things such as their testing programmes, what processes should be followed if someone tests positive, and what the arrangements will be for employer sick pay where an employee is on sick leave due to COVID.
The ‘Working Safely During Coronavirus’ guidance sets out a range of mitigations that employers should consider and implement where reasonably practicable to do so. Until 1 April 2022, Public Health advice and guidance in England remains for those who test positive, to stay at home and isolate, avoiding contact with others for at least five full days and employers should be willing and able to grant such requests and work with employees to accommodate and make adjustments wherever possible. Encourage staff members who are unwell with other illnesses to stay at home.
Employers still need to create a safe working environment so far as reasonably practicable. Managing Directors, Senior Officers, Boards, Executive Committees and senior managers need to lead by example and set “the tone at the top!” so, for the moment, some care should still be exercised about any decisions to go against recommended guidance and there would need to be a compelling business case (underpinned by its risk assessment) to do so.
How businesses respond can speak volumes to its leadership, culture, the level of trust that you show and the example you set for your workforce and anyone you deal with. Therefore, people should not be expected or asked to come into work, if they test positive or are ill. Indeed, doing so may only cause more ‘business interruption’ should a business then have multiple numbers in the workforce who contract an illness, which leads to further staffing issues.
It is likely that the employment law implications of the end of the COVID restrictions, will result in a legal minefield in the coming months. Caution should be taken when considering disciplining or dismissing employees who refuse to come into work, despite not being ill or clinically vulnerable.
Employees are protected by legislation if they refuse to return to a place of work that they ‘reasonably believe’ presents a serious and imminent danger to them. If an employee is penalised or is dismissed for refusing to return to work, then they may be able to pursue claims for unfair dismissal and/or a detriment. This issue was discussed in more detail in our previous blog – please read it here.
Applying a blanket policy approach in relation to a return to work also creates other risks that may result in an Employment Tribunal claim. For example, employers may need to consider putting in place reasonable adjustments for those who are clinically vulnerable, such as permission to work from home or staggered start times to reduce contact with others. Failing to consider and or implement appropriate reasonable adjustments could in itself amount to disability discrimination.
Honest, open and frank discussions are likely to be needed, between employers and employees to discuss and agree what is best for all concerned. This will put a spotlight on ‘health’ and issues around presentism in the workplace.
Managing health and safety generally, or indeed mitigating against the spread of COVID at work, is not just an employer issue. Employees also have their role to play. They, like employers, are under positive legal duties themselves under the Health and Safety at Work etc. Act 1974 to take reasonable care for their own health, safety and welfare, as well as that of others. Therefore, any employee who tests positive should not attend work, where they may inadvertently spread the virus and still isolate or ‘work from home’ if they can. The ‘Living with COVID’ plan makes clear people need to be encouraged to follow guidance and adopt ‘safer behaviours’ to reduce the risk of infection.
Therefore, in the immediate term, employees should perhaps be asking themselves the following, so that open discussions can be had with their employers: “Am I well enough to be working at all?” “If so, could I reasonably work from home?” And “if I test positive from COVID, and whilst not required by law, shall I notify my employer so that we can then discuss and agree upon a workable solution for all concerned?”
From 24 February, employees who test positive for COVID-19 will be under no obligation to self-isolate. As a result, if the employee chooses not to self-isolate and present themselves as ready, willing and able to work whilst positive, they are entitled to be paid their usual wages, unless there is a contractual right not to do so, if they are turned away and cannot work from home.
Understandably, employers will unlikely want a positive testing employee attending work, risking a widespread outbreak. Further, many employees will require the reassurance that they are not being asked to work alongside positive testing colleagues.
However, this means that more conscientious employees who elect to protect the safety of their colleagues by undergoing a voluntary period of self-isolation will be left in a less favourable financial position as they, unless their contract of employment says otherwise, will only be entitled to receive statutory sick pay (SSP) from day 4 of their absence. This could result in employees being more likely to attend work, and risk spreading COVID.
In light of this, we recommend that employers give careful consideration to the messaging that is sent out to the workforce in relation to positive cases and explore the possibility of enhancing sick pay entitlement for employees who test positive. Being asked to voluntarily self-isolate on SSP may not only discourage employees from performing tests, but also reporting a positive result to their employers.
By law, there is no longer any immediate requirement to do anything. With an end to routine contact tracing, those in ‘contact’ with someone with COVID, are no longer being advised to self-isolate or take daily tests. However, it is sensible that some level of ‘reasonable care’ and personal responsibility be given if you have come into contact with a positive case. If you or someone who works for you knows this to be the case, open and candid discussions should be held to agree upon any course of action.
In line with the above, workplaces should continue to operate under controls that have been previously identified and implemented from its workplace risk assessment in any event, which should help to reasonably minimise transmission.
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From 24 February 2022 – the ‘Test and Trace Support Payment Scheme’ (which provides financial support of £500 to certain categories of people on low incomes who lose income from self-isolating or staying at home to look after children or dependants with COVID) is due to end. People who were instructed through the scheme to self-isolate before this date will still be able to claim support payments within the next 42 days.
From 24 March, employees with COVID-19 will no longer be eligible to SSP from day one of their illness, with SSP only being paid on the fourth consecutive day of their illness.
These changes will likely result in many employees thinking twice about remaining home from work, as this simply may not be financially viable. The risks this presents to the wider workforce is a further reason employers may wish to consider implementing enhanced sick pay for positive absences.
Further, the Statutory Sick Pay Rebate Scheme will close on 17 March 2022. After this, employers will not be able to claim back SSP for COVID-19 related sickness absences or self-isolation periods that occur after 17 March 2022.
However, employers still have until 24 March 2022 to submit any new claims for periods up to 17 March 2022, or to amend claims already submitted.
The Government has promised to deliver further advice and guidance in April, that will be used to shape the future for business and how it will really ‘learn to live’ with COVID. Waiting to see if there are any other variants which may cause further setbacks, see how industry mobilises and responds to these changes, consider what other jurisdictions do next and indeed, how any data around COVID transmission presents in the future, will be important to inform what our future landscape to ‘live with COVID’ really looks like.
Although a great deal remains unclear at this stage, we strongly encourage employers to enter into an open dialogue with and consult their employees, in order to understand their attitudes towards the new changes and what concerns they have about the ‘new normal’. Although there is no ‘one size fits all approach’, engaging with the workforce to establish a clear and fair strategy in light of the recent changes will help to ensure that any issues are dealt with early and promptly before matters escalate.
Brabners will continue to monitor this carefully, and bring you any interim update and part two of our ‘Living with COVID FAQs’ series later this year. If you need any specialist advice or support in navigating these issues in the meantime, please do not hesitate to contact our Employment or Regulatory Teams.
This article contains a general overview of information only. It does not constitute, and should not be relied upon, as legal advice. You should consult a suitably qualified lawyer on any specific legal problem or matter so that specific advice can be given.
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