Moving from Government restrictions to ‘personal responsibility’, yesterday the UK Prime Minister announced his ‘living with Covid-19’ strategy for England. This blog post summarises the key points to take away for employers.
Currently, individuals who test positive for Covid-19 are legally required to self-isolate for ten days, or five days following negative lateral flow test results on days five and six. However, from 24 February, this legal requirement will be removed. While a minimum five-day self-isolation period will still be advised, workers are under no obligation to tell their employers if they have tested positive and have been advised to self-isolate, and this change in approach may cause issues for employers. Despite the Government’s change in direction, employers still have a duty of care under both common law and legislation to take reasonable steps to prevent foreseeable harm occurring to their employees (see our earlier blog post for a summary of the legal obligations on employers). In addition, any relaxation of the rules will cause concern for employees who are fearful of contracting Covid-19, who are vulnerable or who live with a vulnerable individual, perhaps resulting in reluctance to return to the workplace.
As explained in our recent blog post, individuals are protected from suffering a detriment or being dismissed by their employer for leaving work, refusing to work, or taking appropriate steps to protect themselves or other people where they reasonably believe that they are in serious and imminent danger. To date, case law has generally demonstrated the importance of employers being able to show that they have implemented appropriate Covid-19 health and safety measures in the workplace. On that basis, for the time being employers should continue to comply with the Government’s ‘Working safely during Covid-19’ guidance, which will remain in force until 1 April, including keeping risk assessments up-to-date and consulting with employees on health and safety measures. Employers may wish to reiterate to employees that they are strongly advised to self-isolate for a minimum of five days following a positive Covid-19 test, and may even consider going further than the Government guidance by implementing and enforcing more restrictive rules on workplace attendance. If they do so, however, they will need to consider what their position in respect of sick pay will be for anyone who cannot work from home. Requiring employees to self-isolate in circumstances where the Government does not require it, and then withholding pay from those self-isolating employees, may give rise to a risk of claims (for example, for breach of contract or unlawful deduction from wages).
In addition, the Prime Minister has confirmed that, from Thursday, vaccinated contacts of positive Covid-19 cases will no longer be required to test for seven days and unvaccinated contacts of positive Covid-19 cases will no longer be required to self-isolate. Self-isolation support payments will also end from 24 February. Further, from 24 March, changes to statutory sick pay and employment support allowance designed to help people through the pandemic will end. Over the past few months, several high profile companies have removed company sick pay for unvaccinated staff members who were required to self-isolate due to coming into close contact with a Covid-19 case. With self-isolation rules for such individuals now removed, it may be more difficult for employers to justify applying different isolation rules and sick pay policies to vaccinated and unvaccinated employees. Employers who continue to do so may increase their risk of indirect discrimination claims, or dissatisfaction amongst their employees.
Another significant aspect of the Prime Minister’s announcement is the removal of free universal symptomatic and asymptomatic lateral flow and PCR testing from 1 April. The UK Health Security Agency will determine those individuals who will continue to be entitled to free tests in due course, but this will be limited to symptomatic at-risk groups and social care staff. Anyone else who desires a test will have to pay. While some are collecting the testing data and others are not, numerous employers are currently relying on regular employee testing in an attempt to keep their workplaces free of Covid-19. Once testing is no longer freely available, employers will need to determine a new approach. Some employers may wish to consider purchasing test kits for their employees, but this decision will need to be made based on each employer’s risk assessment and resources.
From 1 April, employers will no longer be required to explicitly consider Covid-19 in their risk assessments and the Government’s ‘Working safely during Covid-19’ guidance will be replaced with new public health guidance. At that point, particularly when combined with the removal of free tests, many employers are likely to conclude that abandoning any requirement for testing (or any specific Covid-19-related safety measures) is the most practical solution.
For some time now, many employers have been grappling with their approach to vaccination. Yesterday, the Government announced additional booster jabs for those aged 75 and over, residents in care homes and any adults who are immunosuppressed. Mandatory vaccination policies have always been risky – potentially giving rise to legal risks relating to data privacy, unfair dismissal and discrimination, as well as employee relations issues. The recent steps taken by the Government make mandatory vaccination policies even more difficult to navigate. Recently, the Government announced that it intended to revoke plans to make vaccination mandatory for all health and social care settings in England and will publish a response to its consultation on this decision in due course. If the Government no longer considers that a ‘no jab no job’ approach is proportionate in the most vulnerable of settings, it may be difficult to justify making attendance at an office conditional upon vaccination (particularly if it is applied on a blanket basis in such a way as to exclude those with certain health conditions or religions from the workplace). It would be advisable for employers to continue to incentivise vaccination in accordance with Acas guidance, particularly if further booster jabs become available to the general population, but it is important that unvaccinated individuals do not suffer any detriment for their decisions.
While not a point specifically relating to the latest government announcement, an employer’s approach to hybrid working is an important part of the wider context. Aside from health and safety concerns, some employees may be reluctant to return to the workplace for lifestyle reasons. Perhaps they have already relocated away from the office, or they are better able to manage their childcare commitments while working from home. Employers will need to consider whether their employment contracts contain an express contractual requirement to work at the workplace, and if so, whether it is reasonable to enforce such a requirement. Many employees (those who have over 26 weeks’ service) will have the right to submit a flexible working request to change their contractual place of work, and the Government is currently considering responses to its consultation on making the right to request flexible working a ‘day one right’ for all. Post-pandemic, employers should treat these requests very carefully. In circumstances where an employee has been able to perform their role successfully from home throughout multiple lockdowns, it may be more difficult to substantiate a reason to refuse a flexible working request, not to mention retaining the employee following a refusal, particularly in light of the ‘Great Resignation’. If such requests are granted, employers may then need to tackle the tricky issue of adjusting pay for home-workers, and the ability to make future changes to a home-working pattern if attitudes to remote working shift again.
Ultimately, there is no one way to balance the various competing interests that will be at play in each business. Employers will need to take a reasonable and proportionate approach to Covid-19 and return to office policies, taking into account the nature of their workforce, their legal obligations and the Government guidance. Now that England is out of step with much of the world when it comes to Covid-19 restrictions, global employers in particular will find it difficult to apply a consistent approach across all jurisdictions while also complying with local laws and guidance. 1 April will be a significant day for employers. In the meantime, it remains to be seen whether the principle of ‘personal responsibility’ in the workplace will be a help or a hindrance.