In a time of ongoing uncertainty, as we continue to weather the pandemic storm and the emergence of the Omicron variant of Covid-19, the overarching duty on employers to ensure that their employees (and others) are not exposed to health and safety risks has remained a constant.
Now, faced with the continued impact of the pandemic and the prospect of a tough winter ahead, employers cannot afford to let down their guard when it comes to protecting the health and wellbeing of their workforce. The result is that health and safety teams will need to continue to work with colleagues in HR and beyond.
This will mean ongoing risk assessments, acting on those assessments and implementing measures to ensure the workplace remains safe and Covid-secure. Therefore, what can we learn from where we are now and what must employers be alive to as we usher in 2022?
We have become all too familiar with the various Covid-related guidance issued by the Health and Safety Executive, Acas and the government but it is crucial that businesses continue to keep an eye on and implement the measures set out in the latest versions of those documents.
Anna Fletcher: "If an employee remains unwilling to co-operate and follow Covid-secure measures at work, fair dismissal may follow."
The latest Working Safely guidance sets out a range of steps employers should consider to help prevent the spread of Covid-19, including:
- Cleaning surfaces that people touch regularly
- Identifying poorly ventilated areas in the venue and taking steps to improve air flow
- Ensuring that staff and customers who are unwell do not attend the workplace or venue
- Communicating to staff and customers the measures that have been put in place.
The burden rests with employers. From ventilation to sanitisation, face coverings to social distancing, each employer must reach their own decisions about what is right for their workplace and workforce. And employers need to remain nimble – whether that means being in a position to quickly reinstate working from home or sourcing staff cover at short notice in the event of rising infection rates.
Self-isolation legislative provisions
Employers also need to keep abreast of the evolving self-isolation requirements to ensure they and their employees are complying with the relevant legal obligations, which have been extended to 24 March 2022.
Since 28 September 2020, workers who have been told to self-isolate by NHS Test and Trace and are due to work somewhere other than their place of self-isolation (i.e. home), have a legal duty to inform their employer as soon as possible and must continue to self-isolate.
Correspondingly, employers have a legal duty to not knowingly allow them to work other than at the designated place of isolation, during the period of isolation. In England, this is required under the Health Protection (Coronavirus, Restrictions) (Self-Isolation) (England) Regulations 2020. The Self-isolation Regulations were due to expire on 28 September 2021, but have been extended until 24 March 2022.
Since 16 August 2021, individuals informed by NHS Test and Trace that they are a contact of someone who has tested positive will not need to self-isolate where they are:
- Fully vaccinated
- Below the age of 18 and six months
- Have taken part in, or are currently taking part in, an approved Covid-19 vaccine trial
- Not able to be vaccinated for medical reasons.
However, as we have come to expect, guidance needs to flex to accommodate the pandemic. At the time of publication on 1 December we are now advised that, if an individual has been informed that they are a contact of someone who has been identified as a suspected or confirmed case of the Omicron variant of Covid-19, these conditions do not apply, and they must stay at home and self-isolate (but see www.gov.uk for the latest advice).
Workers who are now exempt from the self-isolation requirement do not need to inform their employer when they have been advised that they are a contact of a positive case. Of course, those who test positive will still need to self-isolate and it remains an offence (at least until 24 March 2022) for the employer to knowingly allow them to work other than at the designated place of isolation (generally their home), during the period of isolation.
There are a number of workplace issues, which have sparked much debate and discussion and, in some cases, have attracted judicial scrutiny.
‘No jab, no job’
With the exception of the care sector (already a legal requirement), and patient-facing NHS workers (from April 2022), employers do not have the right to require the workforce to be vaccinated.
Although it remains a subject of much debate, employers could decide to make job offers conditional on proof of vaccination. Pimlico Plumbers boss, Charlie Mullins, has confirmed that this is the approach that his business is adopting. However, the requirement risks complaints of discrimination by unsuccessful candidates who are unable to have the vaccine perhaps because of a disability.
More broadly, any requirement for employees to be vaccinated needs to be assessed in the context of current guidance and the risk of legal action (most likely via an employment tribunal), that such a requirement could expose the employer to. The current recommendation (and, of course, this may be subject to change), is that those who have severe allergies to the vaccine should avoid vaccination for medical reasons.
People with disabilities are likely to want to obtain medical advice from their GP or consultant and may be advised not to be vaccinated. Refusal of employment, which arises as a result of being unvaccinated on medical grounds, risks claims of disability discrimination arising as a consequence of a disability. The unfavourable treatment of such employees because they are not vaccinated would be discriminatory, unless objectively justified.
And it is not just disability that creates a risk of legal action against the employer. People may not be vaccinated because of a particular religious belief. In addition, there is the added risk of complaints from expectant mothers who are unsure whether to have the jab as a result of their pregnancy.
Although, at the time of publication on 1 December, face coverings are only a legal requirement in certain situations (see the government website for any changes), employers can continue to require employees to wear face masks in the workplace even if it is not a legal requirement in a specific setting.
Refusing to wear a face mask where the employer has imposed that requirement may amount to a refusal to comply with a reasonable management instruction and justify dismissal for gross misconduct.
In Kubilius v Kent Foods Ltd a delivery driver’s dismissal for refusing to wear a face mask when entering a client’s premises following two requests by the client and his employer Kent Foods itself was held to be fair. Kent Foods’ decision to dismiss fell within the range of reasonable responses because of the importance of maintaining good relationships with its client, and the fact that the claimant, who had been banned from the client’s site for not wearing a mask, refused to accept that he had done anything wrong.
However, before moving to dismissal employers should engage with the employee to understand the reason for the refusal in case (for example) the refusal relates to a disability. It may be that face masks are adversely affecting communication between employees who, for example, have hearing impairments or where an employee has a neurodiverse condition where clear and certain instructions are necessary.
And what if it is the employee who is objecting to the non-use of masks by colleagues at work? Again, given the sensitivity of the issue, discussing the matter with those involved and seeking compromise will help preserve ongoing positive employee relations.
Requiring employees to return to work
Recent employment tribunal decisions suggest that where the employer has carried out and acted on risk assessments on minimising the Covid-19 risks for people returning to the workplace, it is unlikely that the dismissal of an employee for refusing to return to the workplace will be unfair.
However, employers should remember that some employees remain concerned about returning to the workplace. They may be worried about using public transport or anxious about working around other people after a protracted period of working from home. As ever, clear and supportive communication backed up by evidence of the steps that have been taken to protect the health and safety of the workforce will remain vital.
Initiatives to support wellbeing and in particular mental health as we return to some semblance of normality should also be considered if not already in place. If they are in place, are they working, how do you know and is there anymore that you can be doing?
Obligations on employees to co-operate with the employer’s Covid-secure measures
Employees have a legal duty to take reasonable care for the health and safety of themselves and others who could be affected by their actions at work. Breach of that duty is potentially a criminal offence on the part of the employee.
Reliance on this legal duty should be a last resort but if – despite reasonable requests from the employer – the employee remains unwilling to co-operate and follow Covid-secure measures at work, HR will need to intervene and a potentially fair dismissal (for gross misconduct or ‘some other substantial reason’) may follow.
However, seeking to engage and encourage workers to voluntarily follow the workplace Covid rules would be preferable.
- Keep assessing the risks in your workplace
- Engage with your employees on your plans and keep the workforce updated
- Review your arrangements regularly
- No knee jerk reactions. Make informed decisions when dealing with employee issues
- Keep up-to-date with the latest good practice, guidance and legislative provisions.
HSE’s Covid guidance is at: hse.gov.uk/coronavirus
Contact Gowling WLG law firm at: gowlingwlg.com
Anna Fletcher is Legal director at Gowling WLG law firm
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