Business as unusual? Working life and Covid-19 now

Although this summer sees the lifting of lockdown restrictions across the UK, the re-opening of workplaces does not automatically signal a return to “business as usual”.

In this briefing, we bring you up to speed on the key issues and latest developments on working life and Covid-19.

As an overall comment, it is important to remember that, even as mandatory requirements such as mask-wearing and social distancing  are relaxed, Covid-19 is still classed as a “workplace hazard”. The pandemic will remain relevant to employers’ usual obligations to:

• take reasonably practicable steps to reduce risks to the health and safety of employees
• make reasonable adjustments and protect workers from detriment and discrimination under the Equality Act 2010/Disability Discrimination Act 1995 in Northern Ireland
• comply with contractual obligations around mobility and working from home; and
• manage employee relations around workplace safety measures.  

The relaxation of restrictions also will not impact on employees’ protection from being subjected to a

• detriment (e.g. having their wages reduced) or
• being dismissed

for exercising their right to leave their workplace if they believe it poses a serious and imminent danger to them, or to others - including members of the public and their families.

Note that the progress of re-opening differs in each of the UK’s four jurisdictions. The Institute for Government has published a summary of the lockdown rules in each UK jurisdiction here.

Coronavirus Tribunal cases

A number of Employment Tribunal cases related to Covid-19 have started to come through. These rulings are not binding on other Employment Tribunals, but they do give us an indication of the likely approach that a Tribunal would take to claims brought on similar facts.

So far, Employment Tribunals have found the following.

• It was unfair to dismiss an employee who refused to return to work in order to protect his clinically extremely vulnerable father. The claimant lived with his father and worked in a restaurant. The employer did not provide any protective equipment to staff and the employee did not believe that the employer intended to implement Covid-secure practices. An Employment Tribunal found that the employee had a reasonable belief that there were circumstances of “serious and imminent danger” and he was dismissed because he had taken steps to protect his father. You can read the judgment here.
• It was fair to dismiss an employee for their refusal to wear a face mask when visiting the site of a client which required face masks to be worn at all times. The full judgment is here.

• It was fair to dismiss an employee who refused to return to work, citing concerns about Covid-19. The claimant was one of a small number of employees working in a very large space; the employer had put Covid secure practices in place; and there was evidence that the claimant had breached self-isolation rules outside of work. The Tribunal said that the risk of contracting Covid-19 was not a “serious and imminent workplace danger”, entitling a claimant to exercise their right to leave the workplace, where the employer has taken safety precautions. For more information and a link to the full judgment, please see our April 2021 Briefing.

Legislation

Regulations will be introduced to make vaccination a condition of work in care homes. Whether vaccination can be made a condition for working in other sectors is an issue which has been hotly debated: you can read our ‘No jab, no job’ Q&As, here, for guidance.

Self-isolation

Employees who have Covid-19 symptoms or have been informed that they have been a close contact of someone with Covid-19 symptoms, are required to self-isolate and are entitled to Statutory Sick Pay if they cannot work remotely.

In England, new guidelines now allow ‘critical workers’ (e.g. railway signallers and air traffic controllers) to leave self-isolation to attend work, provided they are asymptomatic: more details here.

Also in England, from 16 August 2021, ‘double-jabbed’ people and under 18s will no longer need to self-isolate if they are a close contact of someone with Coronavirus. Those who are not vaccinated will still be required to self-isolate.

Anyone who tests positive for Covid-19 will still be required to self-isolate, regardless of their vaccination status.

Working safely

The government’s Working Safely During Coronavirus guidance (for England) has been updated now that workplaces in England are fully open, but employers are still required to take “sensible precautions”. The guidance echoes previous guidelines on Covid security at work. Particular points to note are:

• advice that transmission is limited by organising employees into ‘cohorts’
• face coverings are no longer required but should be ‘encouraged’
• employers should discuss the timing and phasing of a return with their workers
• risk assessments and risk management are still required
• employers should talk to clinically extremely vulnerable workers about their individual needs and supporting them in taking any additional steps which have been advised by clinicians.

The Department for Health and Social Care has published guidance (applicable to England) on protecting people who are clinically extremely vulnerable, including workplace guidance. The guidance is here. HSE guidance on protecting vulnerable workers is here.

The above guidance and changes apply only in England, and there is separate guidance in place in Wales, Scotland and Northern Ireland.

Welsh guidance on measures to minimise the risk of exposure to Coronavirus in workplaces and premises open to the public is here.

The key changes for employers in Wales include the following.

• A requirement to provide information to those working at premises about risk assessments and measures to reduce risk.
• A requirement to take all reasonable measures to maintain a 2 metre distance indoors and mitigate risks outdoors, which may include limiting close physical interaction.

Scottish guidance on safer work places is here.

Northern Irish guidance on Making Workplaces Safer is here and guidance in relation to vulnerable workers is here.

Agile/hybrid working

Acas has published guidance for employers on hybrid working: how to decide if it’s a suitable option and how to introduce it. You can read the full guidance here. Acas has also said that it expects demands for flexible working to increase as the UK comes out of the pandemic.

Note that the removal of the mandatory requirement to work from home means that you must address the question of where employees are expected to work, taking account not only of the contractual position but also any employee concerns about returning to the office.

And finally….

The Furlough Scheme is currently timetabled to close on 30 September 2021. Guidance on the Scheme has now been updated to reflect the reducing government contribution to Furlough Pay.

From 1 August 2021, the government will pay 60% of wages up to a maximum cap of £1,875 for the hours an employee is on Furlough.

For claims from 1 July 2021, employers must top up employees’ wages to 80% of wages (up to £2,500) in total for hours on Furlough. The caps are applied pro rata to the hours not worked.

Contributors: Sarah Maddock and Amy Collins

This publication is intended for general guidance and represents our understanding of the relevant law and practice as at July 2021. Specific advice should be sought for specific cases. For more information see our terms & conditions.

Get in touch

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Stuart McBride

Partner, Head of Employment Bristol

+44 (0)333 006 0329 Email me