Returning to work after 19 July 2021
The 19th July 2021 is loosely termed ‘Freedom Day’ as all state-mandated, compulsory social distancing, mask wearing, limits on gatherings, singing and dancing, introduced due to COVID-19 are lifted in England (rules for Scotland, Wales and Northern Ireland are, as throughout this pandemic, different). In addition, there is no longer an instruction to work from home where possible, although the government recommends a gradual return to work. But what does this mean for employers?
The government has issued revised guidance for different types of workplaces – here are four key ones:
- Offices, factories and labs
- Shops, branches and close contact services
- Construction and other outdoor work
- Restaurants, pubs, bars, nightclubs and takeaway services
Obligations under the Health & Safety at Work Act 1974
Irrespective of the easing of restrictions, employers still have obligations to keep their workers and visitors safe in the workplace and this has not changed. At the moment, infection rates are high and this must be factored in. The government recommends a gradual return to work rather than everyone returning from Day 1 and the following have to be considered:
- Risk assessments: these are required by law and must be in writing if you have five or more employees and employees must be consulted about these risk assessments. For those who are pregnant or clinically vulnerable, separate assessments must be completed.
- Law v risk assessment: although the law no longer requires social distancing or masks, given the prevalence of COVID-19 at the moment, and the way in which it spreads, then an employer may well believe that to maintain a safe place of work, bringing employees back gradually, to allow for social distancing, keeping screens up and mask wearing in crowded areas are sensible precautions to reduce the risk.
- Obvious precautions: despite the rule changes, reduced numbers in the office, increased cleaning, hand sanitisation, improving ventilation, asking those who are ill to stay away are all sensible precautions to take
- Policies: a specific policy obliging employees to stay away from the office if they have tested positive, have symptoms, live with someone with symptoms or who is positive, have been contacted by test and trace or have been ‘pinged’ on the app. The last one is important because they do not have to legally self-isolate if pinged, it is a recommendation only. The seriousness with which the employer takes a breach of this is very important to spell out because if it is considered gross misconduct then you must say so.
An employee who believes that they are in serious and imminent danger can refuse to return to work and if the employer dismisses them, they might claim automatic unfair dismissal (no length of service needed). The cases are just starting to trickle through as they were fast tracked. What these are telling us are that if employers have taken all reasonable precautions, if the employee has not engaged with the employer about their concerns and tried to find ways to manage their concerns, then an employee will not succeed in their claim for automatic unfair dismissal. Even if they have engaged with their employer, their concerns have to be realistic and against a background of highly effective vaccines which reduce the risk of serious illness or death by over 90%.
Current self-isolation rules
Currently an individual is obliged by law to self-isolate if they have symptoms or someone they live with does, are positive or they live with someone who is positive, they have returned from a ‘red’ country, or they have been contacted by NHS Test and Trace. Failure to do so, or an employer insisting an employee comes to work in these circumstances, can result in fines starting at £1,000 for the first offence and moving to £10,000 for the fourth and subsequent offences. If an individual is ‘pinged’ by the NHS app then it is advisory only and not a legal requirement.
Self-isolation rule changes after 16 August 2021
The current plan is that from 16 August 2021 employees who have been double vaccinated or those under 18 will be advised to take a PCR test if contacted by Test and Trace but they do not need to self-isolate, unless they return a positive test. These rule changes are going to be brought forward for NHS staff when it is necessary because of staff shortages.
Can employers insist on employees being vaccinated before returning to the office?
There is no ‘one size fits all’ answer to this question. Certainly in care home and hospital settings the answer is likely to be yes, and indeed the government is looking to implement a law to that effect – as they are able to do under the European Convention on Human Rights, if public health is being protected. For any other employer, an assessment must be done in terms of the risks, whether there are other ways of doing it such as coming in early and taking daily lateral flow test and also what the science is telling us.
The current studies show that vaccinations reduce transmission by up to 50% and so those who are vulnerable in the workplace will be better protected. Also, with the new self-isolation rules changing, an employer may take the view that to ensure business continuity, vaccination is the most proportionate response as otherwise all their staff will be sent home. All decisions and the rationale should be carefully documented and form part of the risk assessment.
It is a difficult and sensitive area with strong arguments on both sides. If a discrimination claim is brought there may be the need to objectively justify policies which are potentially discriminatory on the grounds of pregnancy, age, disability or philosophical beliefs. It is always better to try and bring your employees with you through discussion and education rather than forcing a policy on them.
Can an employer ask about vaccination status?
It is understood that the Information Commissioner will shortly be issuing revised guidance on this point. Medical information is ‘special category data’ and an employer must show that this is ‘necessary for a specific purpose’. With the new self-isolation rules coming into effect in August, employers will need to know who has been vaccinated to know they are complying with the law and so it is difficult to see how they cannot reasonably ask for this information. However, it is important that this information is treated like any other information under the Data Protection Act, as it can easily be anticipated that if word gets out that an employee is not vaccinated, they may be harassed and if their reason for not having a vaccine is medical or because they are pregnant or have firmly help philosophical beliefs then this is going to be contrary to the Equality Act.
Options when employees are self-isolating
Although HMRC’s furlough guidance says that the furlough scheme should not be used for those self-isolating and they should instead be paid SSP (which those employers employing fewer than 250 employees, can claim this back for two weeks), HMRC has suggested that the furlough scheme can also be used for those self-isolating, although the government’s guidance says that this is only for those employed prior to 30 October 2020.
There is also an NHS Test and Trace grant available to those on low incomes or benefits told to self-isolate or with a child who is isolating – this is £500 and administered by local councils and available to employees and to those who are self-employed.
A sense of perspective
Whilst the death of anyone is a tragedy for every family, it is important to keep a sense of perspective about COVID-19 deaths to ensure that the fear is not greater than the actual risk. Employers may like to share the Office for National Statistics weekly bulletin. On average 10,000 people die in England and Wales every week. COVID-19 deaths currently account for 1.2% of those deaths (101 in the week to 2 July) whereas deaths from flu and pneumonia account for around 10% (969 in the week to 2 July).