Law at Work - July 2021 – 2 / 6 观点
The UK Government's announcement, that it intends to end all current COVID-19 lockdown restrictions in England from 19 July puts the onus on businesses to navigate COVID risk for themselves. We put the spotlight on 10 questions you may be asking about how to return to work.
Can we ask all staff to return to the office from 19 July onwards?
Although the guidance from 19 July onwards will no longer be to work from home, the Government has stated that it expects and recommends that there should be a gradual return to the office over the summer. Although you can ask staff to work from the office from 19 July, you should continue to be cautious in your approach and be mindful of the risks of COVID-19 transmission in the workplace. This might entail encouraging a staggered return, hybrid working or a combination of the two. People should only be encouraged to return in a way which is COVID-safe and to a workplace which is COVID-safe.
Can we ditch the masks and social distancing?
No, not entirely. The Government has confirmed that it is recommended for face coverings to be worn in crowded places, even after 19 July. It is therefore likely that some employers will still decide to require staff to wear face coverings in places such as staff canteens, lifts or in reception areas where the risk of COVID-19 transmission is higher. Notably, the Mayor of London has decided to make face-mask wearing mandatory on public transport.
While there is no hard and fast rule on social distancing from 19 July, it is clear that minimising the number, proximity and duration of social contacts will still be important as part of mitigating health and safety risk.
Do we need to ask our staff to get tested before they come into work or provide testing at work?
No, strictly speaking there is no legal requirement for employers to do either of these things from 19 July onwards.
However, the Government has made clear that testing (whether temperature, lateral flow or PCR) for staff and visitors may play a part in making the workplace COVID-secure.
Are there any changes to the self-isolation rules?
The big development here is that from 16 August, those who have been fully vaccinated will be exempt from the requirement to self-isolate if they are a contact of a positive case. They will instead be advised to take a PCR test as soon as possible.
Otherwise it remains the case that employers must not 'knowingly' allow employees or agency workers to 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.
What are the COVID-19 vaccination DOs and DONTs?
There is no legal requirement in the UK to have the COVID-19 vaccination, so you cannot (and should not) force staff to do so. But that is not to say you cannot strongly encourage all staff to get vaccinated when they can. Public Health England has published an Employer Toolkit, with posters, videos and Q and As, on how to get the public health message across in the workplace.
Every business will need to judge their response according to the circumstances in their particular workplace, and weigh up the potential benefits and possible risks to both individuals and the wider organisation.
There is no requirement to have a vaccine policy, but it may be a good idea for you to set out your general approach to vaccination. You may wish to make it clear that bullying or other detriment on grounds of vaccine status will not be tolerated in the workplace. Because the area has caused controversy and feelings about vaccination can run high, having a policy could protect the employer from disputes further down the line.
As always, businesses will also need to consider their data protection obligations when collecting data on COVID-19 vaccination in the workplace. Ask yourself why you want the data, and what you are going to do with it. The ICO has published guidance in this area which emphasizes that an employer should ask why it wants to collect data: "Your reason for recording your employees’ vaccination status must be clear and necessary. If you cannot specify your use for this information and are recording it on a ‘just in case’ basis, or if you can achieve your goal without collecting this data, you are unlikely to be able to justify collecting it. You should also take into account that accepting the offer of a vaccine is a personal decision, which could be influenced by a number of factors."
Is overseas travel back on the cards?
It isn't exactly plain sailing from 19 July, but there are some changes. Travellers returning from a country on the amber list will no longer be required to quarantine for 10 days on arrival if they are fully vaccinated. Tests will still be required though.
Many countries also have rules in place about who can enter and what you can do when you are there, so you should still proceed with caution. There are some jobs that qualify for travel exemptions.
Can our staff refuse to return to the office on health and safety grounds?
Employees may be required to attend the office from 19 July but employers still have an obligation to make sure it is safe to do so. Health and safety concerns should be explored and taken seriously and in the light of prevailing government guidance. The employer should be mindful that reports may be made to the Health and Safety Executive if COVID-secure guidelines are breached. Because employees have the right to leave work, or refuse to attend it, in circumstances where they reasonably believe there is an imminent risk to their health and safety, there is potential for claims of automatic unfair dismissal to arise if grievances relating to health and safety are ignored. Employees may also have grounds to make a whistleblowing claim.
How do we deal with staff who may be clinically vulnerable, concerned for loved ones or anxious about returning to the office?
Since the Government will no longer be advising staff to work from home, an employer is entitled to ask staff to come back to work. Throughout the pandemic the Government has urged employers to be compassionate and to listen to employees' concerns about their personal situations. This is as much about good practice as it is about the potential for trust and confidence issues to turn into grievances and possible constructive dismissal claims if left unresolved. Employees may have understandable concerns for themselves, or about exposing their loved ones to greater risk and these should be dealt with sensitively. However, a generalised fear of the pandemic is unlikely to give employees an exemption from carrying out their contractual obligations and following reasonable instructions from their employer (which may include a requirement to attend the workplace).
Do we still need to carry out COVID-19 risk assessments?
Yes. Employers have a statutory and common law duty to manage health and safety risks posed to staff and customers, and this includes the risk of COVID-19. COVID risk assessments should be reviewed and kept up to date. Have regard to the sector specific guidance relevant to your workplace.
How should we deal with requests to work from home forever?
Whether to offer home or hybrid working on a permanent basis will be a decision for your business, but it has been much publicised that many employers are not planning to return to the office full-time.
You should communicate any policy on homeworking, to cover matters such as provision of equipment, IT security and data protection. Flexible working requests should be considered in accordance with statutory requirements. Where home or hybrid working is allowed, decide whether this change is temporary or permanent and, if permanent, reflect this in contractual documentation.
You may even want to consider whether you would allow working from abroad and whether you need to put any safeguards in place for that possibility.