Quick fire – February 2022

Acas guidance on bereavement, ethnicity pay gap reporting, revocation of mandatory vaccination and the Government plan for living with COVID-19 are all covered in February’s Quick fire.

Acas guidance on bereavement

Acas has published new guidance for employers on supporting employees who have suffered a bereavement.

The guidance outlines the various statutory rights available for taking leave following a bereavement, and what employers should do to support employees during and following any period of bereavement leave. The guidance also outlines what should be included in a bereavement policy, and provides links to other sources of advice and support relating to bereavement.

Ethnicity pay gap reporting

The House of Commons Women and Equalities Committee has recommended that ethnicity pay gap reporting should be made mandatory by April 2023 and has called on the Government to introduce the legislation required.

The Committee has published a new report on ethnicity pay gap reporting, following an evidence session it held in January 2022. A Government consultation on introducing ethnicity pay gap reporting was issued in late 2018, but to date there has been no Government response published and no indication of when (or if) this is likely to be taken further.

A minority (19%) of employers voluntarily publish their ethnicity pay gap data, but the Committee has concluded that large companies (250 or more employees) should be under a legal obligation to do so, in addition to reporting their gender pay gap data.

The Government has not yet responded to the Committee’s recommendation.

Revocation of mandatory vaccination

On 31 January 2022 the Government announced that it had reviewed the latest evidence and taken the decision to revoke the legislation relating to mandatory vaccination of those working in the health and social care sector.

Mandatory vaccination of care home workers came into effect on 11 November 2021, resulting in the dismissal of staff who had not been vaccinated by that date. Further regulations applying to the vaccination of those working in the wider health and social care sector, including NHS employees, were due to take effect from 1 April 2022. This meant that the deadline for those employees to have their first vaccine was 3 February 2022.

The Government issued a short consultation on 9 February to seek views on the revocation of mandatory vaccines, which closed on 16 February. This consultation was necessary for technical reasons; the Government had already committed to revoking the legislation.

In its consultation paper, the Government stated that it remains of the opinion that workers in the health and social care sectors have a professional duty to be vaccinated. It also confirmed the following steps:

• health regulators have been asked to review their vaccination guidance and emphasise workers’ professional responsibilities in relation to vaccination
• it will engage with the NHS to review its policies on the hiring of new staff and the deployment of existing staff, taking into account vaccination status
• The Code of Practice on the Prevention and Control of Infections will be reviewed and strengthened, following a separate consultation.

Prior to the publication of the consultation, NHS employers were instructed not to serve unvaccinated employees with notice of termination. Unvaccinated care home employees who were previously dismissed can now be re-employed; the Government has confirmed that enforcement of the care home vaccination regulations has been suspended, pending their official revocation.

Government plan for living with COVID-19

On 21 February 2022, the Government announced its future plan for Living with COVID-19, which includes removing the legal requirement to self-isolate following a positive test from 24 February 2022.
Detailed guidance to reflect the changes has not yet been published, and at the time of going to press the existing guidance on Working safely during coronavirus states that it will be “updated shortly”.
The key changes for employers to be aware of are covered below.

• From 24 February 2022, the legal requirement to self-isolate following a positive test will be revoked. Workers will not be legally obliged to tell their employer that they need to self-isolate. Those who test positive with COVID-19 will still be advised to stay at home and avoid contact with other people for at least five days. Specific guidance will be issued for those who work in vulnerable services, such as adult social care, healthcare and prisons.
• Also from 24 February 2022, close contacts of those who test positive will no longer be required to self-isolate if they are not vaccinated, and those who are fully vaccinated will no longer be asked to test daily for seven days. Guidance will be published to set out steps that contacts should take to reduce risks to themselves and others.
• From 24 March 2022, the COVID-19 provisions for SSP will come to an end. This means that SSP will no longer be payable from day one of an employee’s absence if they are either incapable or deemed incapable of working due to COVID-19. The three waiting days will apply as before for all absences.
• The SSP Rebate Scheme, applicable to employers with fewer than 250 employees, will also end on 24 March 2022. This currently allows employers to reclaim SSP paid for the first 14 days of COVID-19 related absence. Claims must be made by 24 March in respect of absences up to 17 March.
• From 1 April 2022, the Government will no longer provide free universal symptomatic and asymptomatic testing for the general public in England. Limited symptomatic testing will be available for a small number of at-risk groups (details of eligibility have not yet been published) and social care staff. Tests will instead be available to purchase privately.
• Also from 1 April 2022, the requirement for employers to explicitly consider COVID-19 in their health and safety risk assessments will be removed. The existing set of ‘Working Safely’ guidance will be replaced with new public health guidance. Employers will still be expected to implement mitigations that are appropriate for their circumstances and consider the needs of those employees at greater risk of serious illness from COVID-19.

As the Government seeks to end the legal obligations relating to COVID-19, greater responsibility for managing the impact of the virus will fall to individuals and to their employers, who may need to revisit their sickness absence policies and provide clear guidance to their employees on what to do if they suspect that they are infected.

These articles are from the February 2022 issue of Employment and Immigration Law Update, our monthly newsletter for HR professionals. To download the latest issue, please visit the newsletter section of our website. For further information please contact a member of Birketts’ Employment Team.