17 March 2021
Law at Work - 2021 – 1 of 6 Insights
The four steps the government plans to take to ease and then lift COVID-19 restrictions in England were set out on 22 February in its COVID-19 response - Spring 2021.
Subject to four tests being satisfied at each stage, restrictions, which started to be eased on 8 March, are anticipated to be eased further on Monday 29 March, Monday 12 April, Monday 17 May and Monday 21 June at which point all restrictions will be lifted. While the Roadmap is broad in its remit, we have teased out some pointers for businesses, and issues to consider as we come out of lockdown.
In addition to the Roadmap the government has also published Reopening businesses and venues. The first sectors to open will be outdoor sports facilities on 29 March, followed by some sectors of the economy to re-open in step two (not before 12 April 2021) which includes non-essential retail businesses, personal care premises such as hairdressers and much of the leisure sector and hospitality (outside). Most businesses will then re-open in step three (not before 17 May 2021) such as indoor hospitality venues, the accommodation sector and indoor entertainment venues. By step four (not before 21 June 2021) the government would hope to remove all legal limits on social contact, and in particular reopen remaining premises, including nightclubs, and ease restrictions on large events and performances. Subject to the outcome of various reviews it would hope to relax COVID-Secure requirements on businesses.
The CJRS which was due to end on 30 April will be extended until the end of September 2021. During the Budget earlier this month, the Chancellor Rishi Sunak confirmed that the government will continue to contribute 80% towards furloughed employees' wage. Then from July, employers will start paying 10% of furloughed employees' pay, increasing to 20% during August and September. Where an employer was considering collective redundancies to take effect by 30 September the 90-day consultation period would need to start on 2 July.
It was also announced that a fourth round of self-employment grants worth up to £7,500 will help support those left out of previous support because they had not filed tax returns. This is likely to benefit an additional 600,000 people.
In the Roadmap the government states that people should continue to work from home wherever possible during steps one to three. Plans for step four are yet to be considered although at this point the government would hope to remove all legal limits on social contact and publishing accompanying guidance on how best to reduce the risk of transmission.
The Test and Trace Support Payment, for those who are told to isolate but cannot work from home, will continue into the summer, and will be expanded to cover parents who cannot work because they are caring for a child who is self-isolating. The government expects that the clinically extremely vulnerable will no longer be advised to shield after 31 March but will confirm the position nearer the time.
Currently the Roadmap will allow people to go on holiday within England from 12 April and the earliest they can travel abroad is from 17 May. To avoid a surge in holiday requests later in the year, employers may want to encourage (or compel) staff to take holiday now, especially if their holiday year runs from 1 January to 31 December or where employees have holiday carryover from 2020 to use.
All businesses which reopen will continue to abide by the social contact rules, demonstrate robust strategies for managing the risk of transmission and to ensure social distancing rules are followed. They must continue to adhere to the guidelines in place to ensure workplaces are safe and carry out the appropriate risk assessments.
It is recognised that social distancing is difficult and damaging for businesses and that they want to return to as near to normal as quickly as possible. Ahead of step four (but we have no more detail than this), the government will complete a review of measures to limit transmission of the virus such as social distancing. One area of review is whether COVID status certification (also known colloquially as "vaccine passports") could play a role in reducing risk and enabling a relaxation of the COVID-secure guidance in workplaces and other settings. This review "will also inform guidance on working from home - people should continue to work from home where they can until this review is complete."
The Government has also said it will update COVID – Secure guidance to provide further advice on how businesses can improve fresh air flow in indoor workplaces and introduce regular testing to reduce risk. Local authorities will also continue to offer advice.
The government's free COVID-19 workplace lateral flow testing is now available to all businesses in England, including those with fewer than 50 employees. This service is for employees who cannot work from home. Businesses have until 31 March to register their interest. The government has said that regular testing will be a vital part of its roadmap to cautiously ease restrictions.
If testing is carried out by a business, it is in addition to, and not a replacement for the government's current safe working guidelines and Acas has published advice on how the practicalities should be agreed with staff or their representatives. This includes how testing would work, how staff will get their test results, considering the level of pay for staff if they need to self-isolate but cannot work from home eg receiving their usual rate of pay, or potentially using the furlough scheme (if this is possible).
Although the COVID-19 vaccine is currently being offered to particular targeted sectors of the UK population, based on age or clinical vulnerability, and is only available via the NHS, it has already generated much public debate. Whether, or to what extent and for what purpose "vaccine passports" will be required in the future is not yet known and is subject to government review. Without specific legislation, however, denying anyone employment (or indeed a service) because they cannot show that they have had the virus may be unlawful discrimination – for example on the basis of age, disability and potentially pregnancy. Such claims could arise where employers either require prospective employees to be vaccinated ("no jab no job") or existing employees who may face repercussions for failure to agree to a reasonable management instruction. Every business will need to judge their response according to the circumstances in their particular workplace, and weigh up the potential benefits and possible detriments to both individuals and their particular organisation.
Acas' new advice on getting the coronavirus vaccine for work is focussed on how to support staff to get the vaccine once it is offered to them. Similar to workplace testing it suggests employers consider offering paid time off for vaccination appointments and full pay (rather than SSP) if staff are off sick because of vaccine side effects. It advises that, in most circumstances, it is best for employers to support staff to get the vaccine without making it a requirement. If an employer feels it is important for staff to be vaccinated eg if its necessary to do their job, then they should consult with staff and suggests that where further steps are necessary, then a vaccine policy might be appropriate. If an employer believes that an employee's reason for refusing a vaccine is unreasonable, then this may be a disciplinary issue.
The Acas advice on both workplace testing and vaccinations also notes that employers should assess whether they plan to collect data (eg on staff vaccinations) and whether there are lawful grounds for processing health information how it plans to use, store and delete testing data, in line with UK data protection law.
Businesses will need to ask why they want the data, and what are they going to do with it? It may be to inspire customer confidence, to be able to say to customers 'all our staff, or the majority of our staff, have been vaccinated,' or it could be that the aim is to reduce sick absence within that particular workplace (especially where people work in close proximity). Each policy should be adapted to the particular workplace, the role and any particular risks of the job.
It is currently a criminal offence for an individual to leave or to be outside of their home without a ‘reasonable excuse’. So, an employee, currently, would be advised to have documentation from their employer as to why they are required to go into a workplace. From 29 March individuals will no longer legally be required to stay at home. However, Guidance will set out that people should continue to work from home where they can and continue to minimise travel wherever possible.
If employees return to work but dispute either the circumstances in which they do so or the conditions under which they work, they could bring health and safety related unfair dismissal claims and inform the Health and Safety Executive. They may also have grounds to make a whistleblowing claim.
Employers must not 'knowingly' allow employees or agency workers to conduct work in any place other than where the individual is self-isolating. Breaches of the self-isolation regulations by employers can result in a fine for that organisation starting at £1,000 for the first offence, increasing to £10,000 for the fourth or subsequent offences.
Organisations' health and safety and disciplinary policies are an example where established employment law and the impact of the recent pandemic may interact. Recently, an employment tribunal held that it had been fair for an employer to dismiss one of their employees for refusing to wear a face mask inside his lorry cab while making a delivery to a client. In D Kubilius v Kent Foods Ltd the tribunal found that the employee's refusal to comply with the health and safety instruction to wear PPE was a serious breach and entitled the employer to dismiss for gross misconduct. It was only a single act of misconduct, and so might have been reasonable for the employer to have given a written warning. However the fact that the employee was asked repeatedly to wear a mask inside his cab as part of new COVID rules but refused, and that the client then banned the lorry driver from entering its site, meant that the decision was fair as it was within the range of reasonable responses open to the employer.
Although the decision is not binding on other employment tribunals, we can expect to see more challenges by employees brought on health and safety grounds, as a result of alleged breaches of existing company policies and procedures, being applied in these new and challenging circumstances.
What does this mean for employers?
by multiple authors