Coronavirus - Navigating the next stage

As we move into what we can only hope is the last phase of changes to Coronavirus restrictions, the last month or so has seen the lifting of most social restrictions across the UK, and the introduction of more routine protective measures.

However, the number of COVID-19 cases in the UK remain high. As restrictions fall away (along with COVID-19 statutory sick pay ("SSP") entitlements) and government guidance becomes less prescriptive, the onus has now shifted to employers to ensure that they are mitigating the risks posed by the virus in the workplace in line with their general duty to protect the health and safety of staff.

In this Briefing, we explore a few of the tricky issues that employers may need to navigate over the coming months.

How do we continue to meet our health and safety obligations?

In England, individuals are no longer legally required to self-isolate following a positive COVID-19 test, and free testing has come to an end (except for the most vulnerable). An employer no longer has to explicitly consider COVID-19 in health & safety risk assessments, and the government has replaced its previous ‘Working Safely’ guidance with a set of more general public health principles. It is now recommended that an employer seeks to reduce the spread of the virus by encouraging vaccinations, keeping workplaces properly ventilated, and maintaining a clean working environment. Separate guidance has been issued in relation to vulnerable individuals.

In Wales, the government has withdrawn routine testing. Employers are advised to take five main actions to protect their staff and customers, including completing a risk assessment and asking staff who test positive for COVID-19 (or have symptoms) to stay at home. The Welsh guidance is available here.

Scotland has revoked some of the legal requirements on employers such as having regard to government guidance about minimising risk of exposure on their premises (click here). However, employers are encouraged to follow the ‘Fair Work Statement’ which states that staff should not be penalised for following medical advice or staying away from work. Advice for high risk individuals in Scotland has also been updated.

In Northern Ireland, the government’s guidance is to remember that COVID-19 remains a risk, and to wear a face covering and self-isolate if required. To read the advice, ‘Coronavirus (COVID-19): how to stay safe and help prevent the spread’ click here.

Despite the above changes, an employer still has a general duty to protect (as far as is reasonably possible) the health and safety of its staff. Revising existing risk assessments and ensuring that any resulting action plans are implemented (and then properly followed-up) will remain important. Relevant factors to consider include:

• the nature of the workplace (both the physical environment and the type of work carried out);

• whether hybrid or home working is feasible; and

• what measures can be implemented for vulnerable employees.

What should we do now if an employee has COVID-19 symptoms?

The special rules that allowed statutory sick pay (“SSP”) for self-isolating/shielding employees have now been removed across England, Scotland and Wales. This means that even if an employee tests positive for COVID-19, they will not be entitled to SSP unless their symptoms are sufficiently severe for them to be unable to work. SSP is also no longer payable from day one of absence.

In England, the new public health guidance states that if someone is unwell with symptoms of a respiratory infection (including COVID-19) they should follow the separate government guidance for people in that situation, broadly: stay at home, avoid contact with other people, and work from home if possible. If they can’t work from home, the guidance advises them to talk to their employer about available options. 

What does this mean from a practical perspective?

If staff can easily work from home, you could require them to do so until any symptoms of a respiratory infection have passed. However, the position is less straightforward where staff cannot work from home:

• You could require staff to stay at home until their symptoms have passed, but this is unlikely to be a practical long-term solution. As testing is no longer free, absence rates could increase as staff take time off work with symptoms of any respiratory illness. It also throws up the question of pay, particularly where someone only has mild symptoms, as SSP is now only payable where someone is too unwell to work. It would be open to you to provide contractual sick pay for staff staying at home as precaution, but some employees may object if that eats into their sick pay entitlement, leaving them with less leave to take if they later become too unwell to work.

• You could require staff with symptoms to take a COVID-19 test (and would need to pick up the cost of this). You would need to think carefully about where the test would be carried out to ensure that there is no abuse of process. There is also a possibility that staff could object.

• Alternatively, you could simply encourage staff with mild symptoms, who are well enough to work, to wear a mask and practice social distancing, whilst also following the recommendations in the new public health guidance to prevent the spread of the virus.

Your approach is likely to depend to a great extent on the outcome of your health and safety risk assessment and the likely risks posed by COVID-19 at your workplace(s), including the needs of any vulnerable staff and/or the risk of infecting vulnerable members of the public.

You should also consider whether any contractual or policy documentation (e.g. sickness absence policy) needs to be amended in light of your approach.

What if vulnerable staff refuse to return to the workplace?

In light of the new government guidance in England, you will have more scope to argue that vulnerable staff should return to the workplace if their role cannot be undertaken from home. Discuss the matter with the relevant staff member to try and understand their concerns.

If the staff member has a disability for the purposes of the equality legislation, you may be required to make reasonable adjustments before they return. If they continue to refuse to return, you could potentially move to discipline or ultimately dismiss them, depending on the circumstances of the case.

Contributors: Laura Jackson and Victoria Wenn

For further news and updates on employment law developments as they happen, please follow our specialist Employment Law Twitter Feed @TLT_Employment and subscribe to our Employment Law Focus podcast – the latest episode, on challenges with returning to work is available here.

This publication is intended for general guidance and represents our understanding of the relevant law and practice as at 6 April 2022. Specific advice should be sought for specific cases. For more information see our terms & conditions.