Roadmap step 4: Implications for employers

As expected, the Government confirmed the lifting of remaining lockdown restrictions with effect from 19 July 2021, under step 4 of the Government’s roadmap. 

Legal rules on social distancing, wearing face coverings, limiting the number of people able to meet and the long-standing instruction to work from home have been removed. In addition, businesses that have had to remain closed, such as nightclubs, are now allowed to reopen.

However, the Government is keeping in place certain key protections, namely: testing for those with symptoms and targeted asymptomatic testing; isolating when instructed by NHS Test and Trace, and border quarantine for those arriving from certain high risk countries. From 16 August 2021 there are expected to be changes to the rules on self-isolation for those who have been fully vaccinated, if they are in contact with a positive case. Close contacts will instead be advised to take a PCR test.

Step 4 – Guidance

In place of the legal mandates that have been in force in various guises since April 2020, the Government has issued new guidance, which came into effect on 19 July. The guidance makes it clear that individuals are now expected to use personal judgement to manage risks rather than relying on legal restrictions.

For employers, although the ‘work from home’ instruction no longer applies, the guidance states that the Government ‘expects and recommends’ a gradual return to the office for those who have been working from home. Employers should discuss the timing and phasing of a return with their workforce and with trade unions (where applicable).

In addition, employers should follow the new working safely guidance that applies from 19 July, covering a range of different working environments. This guidance states that it is up to employers whether they ask workers or customers to wear face coverings, but the Government ‘expects and recommends’ that people should continue to wear them in crowded, enclosed spaces.

The guidance highlights ‘priority actions’ that employers should take:

• complete a health and safety risk assessment that includes the risk from COVID-19
• provide adequate ventilation and take steps to improve fresh air flow in poorly ventilated spaces
• clean more often, particularly surfaces that people touch a lot
• turn away people with COVID-19 symptoms, and not permit workers who are self isolating to attend work (it is an offence to do so)
• enable people to check in at your venue (although employers are no longer legally required to do so); and
• keep all workers, contractors and visitors up to date with safety measures.

Organisations in ‘higher risk settings’, particularly in large, crowded settings (which will include pubs and nightclubs) are being encouraged to use the NHS COVID Pass as a condition of entry (see also ‘Vaccination status’ below). The guidance also suggests that individuals should regularly test themselves using free rapid lateral flow tests, particularly when managing periods of risk such as returning to the workplace.

Health and safety

Employers have a legal duty to manage the health and safety of their employees, visitors and those members of the public affected by their business activities. This means that employers are required to take reasonable steps to mitigate the risks in the workplace that are identified in a health and safety risk assessment, and this will continue to include risks posed by COVID-19. During a period when case numbers are likely to be very high, this will arguably pose a more onerous requirement for employers than when case numbers were lower and when legal mitigations (such as social distancing and face coverings) were still in place.

Employees who have a ‘reasonable belief’ that their workplace poses a serious and imminent risk, either to themselves or to others, are protected under the Employment Rights Act 1996 from being subjected to a detriment or from being dismissed for leaving the workplace (see these recent cases for example of how employment tribunals are approaching such claims).

Employers should ensure that they listen and take steps to address concerns raised by their workers about the safety of their working environment, and consider what measures can be taken to reduce risks. Clear communications, as well as involving staff and any recognised trade unions in planning a return to work, should assist in alleviating many concerns.

Guidance for the clinically extremely vulnerable

When the Government announced its intention to move to step 4, it was subject to criticism that it had failed to take account of the clinically extremely vulnerable (CEV), who may not be protected by vaccination. It has since published additional guidance for this group of people, who were previously advised to shield. This guidance makes reference to the separate Health and Safety Executive guidance on protecting vulnerable workers.

The HSE guidance encourages employers to discuss a return to the workplace with their CEV workers, to explain the measures being taking to ensure the workplace is ‘COVID secure’.  HSE advise that employers should take “every possible step” to enable CEV workers to work from home, and if this is not possible employers can continue to use the Coronavirus Job Retention Scheme (CJRS) to furlough such workers until the end of September 2021.

In addition, employers are under a continuing duty to make reasonable adjustments for those employees with a disability, and this might include adjustments to mitigate risks posed to disabled employees by COVID-19, even if such employees are not designated as CEV.

This means that employers will need to manage the transition back to the office very carefully, balancing the needs of employees with different perceptions and attitudes to risk, and particularly for those with clinical vulnerabilities.

Vaccination status

The Government confirmed on 6 July 2021 that it would not be mandating the use of COVID status certificates, showing an individual’s vaccine status or test result, as a condition for entry to any setting at present. The use of these certificates, now known as the NHS COVID Pass, will be at the discretion of organisations who elect to use them, for example in order to access certain large scale events.

We know that vaccination against COVID-19 will become mandatory for care home staff and others who access the premises for work purposes, subject to medical and certain other exemptions (see our recent bulletin). It has now been confirmed that these provisions will take effect from 11 November 2021. In addition, it is likely that mandatory vaccination will also be extended to those working in the health and social care sector, subject to further consultation. Making vaccination compulsory for employees outside these sectors, however, is likely to present significant difficulties in practice for employers.

An individual’s COVID status is ‘special category data’ under UK GDPR. Employers seeking to establish the vaccine status of their employees must have a lawful basis for doing so and will need to conduct a data protection impact assessment to assess the privacy risks and what appropriate steps can be taken to mitigate them. Employers will need a compelling reason for recording employee vaccination status, and whether they are able to demonstrate this will depend on the nature of the workplace and the employees’ role. Further guidance is available on the Information Commissioner’s website.

Public Health England has recently published a new vaccination guide for employers, in which employers are encouraged to promote vaccination to their employees and to take steps to support them in getting vaccinated. Acas has also published guidance on getting the coronavirus (COVID-19) vaccine for work.

Flexible and hybrid working

While some employees will be welcoming a (gradual) return to the office, many others have thrived during the extended period of homeworking and will be seeking to continue that arrangement in some form going forward. Some employers are actively introducing a new ‘hybrid working’ policy, with employees able to combine a mixture of home and office-based working, depending on their role and the business requirements.

A recent survey conducted for Acas suggests that over half of employers (55%) expect an increase in staff working from home or remotely for part of the week, with 49% expecting an increase in staff working from home or remotely all week. Acas has issued new guidance for employers on introducing hybrid working, including creating a hybrid working policy.

Even if employers decide to introduce a hybrid working policy, employees with at least 26 weeks of service are entitled to make a flexible working request, which can include working arrangements outside the scope of the policy. Employers can reject such requests if the reason for rejecting it falls within one of the statutory reasons for refusal, but a refusal on these grounds may still amount to an unlawful act of discrimination towards employees with caring responsibilities or who are disabled.

Watch a YouTube recording of our recent Early Bird webinar on the topic of flexible working: Bending over backwards? Flexible working as the new normal.