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Getting Down to Business After Covid

The lifting of Covid restrictions from 19 July removes more or less every domestic legal restriction in England in one fell swoop. All businesses will be able to open, without Covid-related capacity limits, and measures such as mask-wearing and social distancing will be left to people’s personal responsibility. Most Covid rules in Wales will be relaxed from 7 August if coronavirus rates allow. Welsh social distancing laws will be replaced with a requirement for risk assessments and legal limits on the number of people who can meet others will be scrapped. Face masks will still be required in most indoor public places in Wales (and on public transport in London) except in hospitality businesses, such as pubs.

Care will still need to be taken of course, but we can be positive about the fact that we are now able to do more activities than before and return to work. But now that ‘statute’ is replaced by ‘guidance’, transferring responsibility for COVID-related risk management from the government to individual organisations, what will this mean for employers in England and Wales?

Government Guidance

The government has published guidance on working safely during coronavirus and is no longer instructing people to work from home if they can, so employers can start to plan a return to workplaces. However, the government expects and recommends a ‘gradual return to offices’, with many of those who are able to work from home still doing so over the summer. Employees who are clinically vulnerable or have a compromised immune system will have no implicit legal right to demand home working, even if their workplace is not socially distanced and colleagues do not wear masks.

What Should Employers be Doing to Keep Their Employees Safe in The Office?

The so-called ‘Freedom Day’ on July 19 makes no difference to the duty imposed on employers under the Health and Safety at Work Act. You will still have a legal responsibility to protect your employees and anyone else coming into the premises from risks to health and safety. Employers should carry out a risk assessment, which may inevitably mean going above and beyond strict legal requirements – by how much will depend on each individual employer’s circumstances.

Protective measures such as hand sanitising gel stations and regular deep cleaning can easily stay in place. However, as part of a risk assessment, employers should also consider if social distancing should remain in the office. It is likely that retaining a requirement for mask wearing, particularly in communal areas, may be desirable, if only to reassure more vulnerable members of the workforce. If testing is already required, it’s sensible to retain this too.

Possible Discrimination Claims by Employees Returning to Work and How to Avoid Them

Whilst the Public Health (Control of Disease) Act 1984 and the Coronavirus Act 2020 grants considerable power to the government, the legislation stops short of forcing citizens to undergo medical treatments and vaccinations – at least in certain occupations. The House of Commons recently approved new regulations meaning that, from October this year, anyone working in a Care Quality Commission-registered care home in England must have two vaccine doses unless they have a medical exemption.

So, should you too require your staff to be double-jabbed as part of their job? It could be argued that it’s a reasonable step to take to reduce the risk of infection. Some may say it’s doing your staff a favour if they fancy going clubbing after September this year! Beware of going down this route though as requiring evidence of double vaccination could well give rise to discrimination claims on the grounds of age (younger staff members may not get their first jab until September at the earliest) or disability, where someone is advised not to have the vaccine because of underlying health conditions.

Instead, you should discuss the options with employees and any recognised trade unions or employee consultative bodies in advance. You should also consult with employees and representative bodies about the outcome of risk assessments and the proposed safety measures to reduce that risk to ensure ‘buy in’ from everyone.

Homeworking/Part Time Working Requests and How to Deal With Them

The employment contracts of most employees will likely state that their office or workplace is their contractual place of work. The most notable impact of the pandemic on that employment relationship has been the shift from the workplace to homeworking – what was once the exception has rapidly become the ‘new normal’. The initial stages of the pandemic meant that speed was essential when it came to mandating homeworking, but this has not created a contractual right to work from home given the instruction to do so came from the government, meaning employers and employees had no choice in the matter.

Employees with at least 26 weeks’ continuous service will still have a statutory right to make a flexible working request to permanently change the terms and conditions of their employment. These changes can relate to their hours, times they are required to work or the location from which the employee is required to work.

But now, given that the government will no longer be insisting that people ‘work from home’ from 19 July in England, employers face a decision as to where people are expected to work from. There has been a lot of talk about the adoption of hybrid working patterns and recent surveys suggest that people’s expectations around work, how they fulfil their role, and how they reconcile work and domestic responsibilities, have changed dramatically.

The key points for any employer here are clarity and communication. If you simply continue to allow homeworking after 19 July without comment, it is possible that, in due course, employees could argue that their contractual place of work has changed to their home. Forcing them back to the office at some future date would constitute a fundamental breach of contract, giving rise to a constructive unfair dismissal claim.

To avoid uncertainty and possible discrimination claims, it would be prudent to set out a government-style ‘roadmap’ describing the employer’s expectations of employees on returning to work and to communicate those expectations effectively to all staff, stating any general approach in some form of written communication, as well as regular virtual or face to face briefings.

However, it’s also worth bearing in mind that, if employers have learnt anything since the start of the pandemic, it is that their workforces are more flexible and resilient than they perhaps realised. With recent surveys suggesting that over half of workers would like to retain a mix of working at home and their workplace, and three quarters expecting employers to offer it, perhaps now is also the time to be thinking about policy on hybrid working?

Refusing to Return to Work

Some employees may refuse to come back to the office because they feel unsafe doing their required daily commute, especially if they use public transport, or they may have a clinically vulnerable person living with them. Can you insist they work from the office? After all, while employers have a statutory duty to provide a safe place of work, this legally binding obligation does not extend to the employee’s commute to and from work.

Instead, the employer should listen to the employee’s concerns and find out more about their circumstances: could they walk or cycle instead of using public transport or can an arrangement be made to avoid peak travel times and minimise social contact?

Flexibility and Communication is Key

Whatever the circumstances, flexibility and communication with your staff is key. It’s important to foster an inclusive working environment, ensuring that decisions don’t discriminate against certain groups of employees. Keeping people informed of what the business is doing will give them some degree of security and retain business productivity and make life easier for all concerned.