Covid-19: Step 4 update for employers
The formal documents supporting the announcement are available online here:
- COVID-19 Response: Summer 2021 (5 July)
- Moving to Step 4 of the Roadmap (12 July)
- Coronavirus: how to stay safe and help prevent the spread from 19 July (12 July)
- Working safely during coronavirus (COVID-19): guidance from Step 4 (14 July)
Looking specifically at the position for offices, the current rule that employees should work from home where possible and only attend work where that is reasonably necessary, will fall away on 19 July at which point, the relevant sections of the Government’s policy documents give the following guidance.
General principles – taken from the 5 July "Summer 2021" document are as follows.
- It is no longer necessary for Government to instruct people to work from home. Employers can start to plan a return to workplaces.
- Regulations that place Covid-secure requirements on businesses, including table service, and distancing between tables, will be lifted.
- "Working Safely" guidance will be updated to provide examples of sensible precautions that employers can take to reduce risk in their workplaces. Employers should take account of this guidance in preparing the risk assessments they are already required to make under pre-pandemic health and safety rules.
- Businesses must not require a self-isolating worker to come to work, and should make sure that workers and customers who feel unwell do not attend the setting.
- Businesses will be encouraged to ask staff and customers to clean their hands regularly and clean surfaces that people touch regularly. The Government will provide guidance on how businesses can reduce unnecessary contact in the workplace, where it is practical. Operators will still be encouraged to use outside space where practical, and to consider the supply of fresh air to indoor spaces. Carbon dioxide (CO2) monitors could be used to help identify where a space is poorly ventilated with businesses encouraged to take steps to improve ventilation if CO2 readings are consistently high.
Further guidance – taken from 12 July "how to stay safe" document.
- The Government is no longer instructing people to work from home if they can. However, the Government expects and recommends a gradual return over the summer.
- All remaining closed businesses and venues such as nightclubs and adult entertainment venues will be able to reopen.
- All capacity limits at sporting, entertainment, or business events will be lifted.
- Hospitality venues such as pubs, restaurants and bars will no longer be required to provide table service or follow other social distancing rules.
- All businesses should follow the principles set out in the working safely guidance.
- Employers will still have a legal duty to manage risks to those affected by their business. The way to do this is to carry out a health and safety risk assessment, including the risk of COVID-19, and to take reasonable steps to mitigate the risks you identify. Working Safely guidance sets out a range of mitigations employers should consider 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; and
- communicating to staff and customers the measures you have put in place.
- To support organisations and individuals in these settings, the NHS COVID Pass will be made available through the NHS App, NHS.UK, or as a letter that can be requested by ringing NHS 119. Visitors will also be able to show text or email confirmation of test results. Organisations should ensure they are in compliance with all legal obligations, including on equalities.
- We encourage organisations in higher risk settings to use the NHS COVID Pass as a condition of entry, in order to reduce the risk of COVID-19. This will especially be the case in large crowded settings where people are likely to be in close proximity to others outside their household. The Government reserves the right to mandate certification in certain venues at a later date if necessary.
- There are some settings where the NHS COVID Pass should not be used as a condition of entry, in order to ensure access for all. This includes essential services and essential retailers which have been able to stay open throughout the pandemic.
- Businesses are also encouraged to continue displaying QR codes for customers wishing to check in using the NHS COVID-19 app, or to continue collecting customer contact details to support NHS Test and Trace, however this will no longer be a legal requirement.
The Government has said that its “expectation and recommendation” is that there should be a “gradual” return to work “over the summer” and that this recognises the desire of many employers and employees to adopt more flexible working practices going forwards. Some employers, for example, will want to blend office and home working, typically via an agile working policy. In contrast, such an expectation could give cause for concern for those planning a full safe return to work from 19 July. Going forwards, it is unlikely that the Government will "hold employers' hands" over this, instead leaving it to employers to decide how and where their employees should work. The guiding principle for employers will remain the need to comply with their obligations under health and safety laws to provide a safe place of work and to ensure that any measures taken do not discriminated against any protected group. Employers should expect to revised their risk assessments in light of the latest Government guidance (as and when it is released) and to consult with employees over material changes. The Government has signalled that it might change its approach again in September as winter approaches and so employers should ensure that their staff communications and return to work policies make it clear that they will be reviewed in light of any future changes in Government guidance or law.
It is worth noting that some trade unions have been strongly critical of the Government’s approach and it may be reasonable to expect some degree of reluctance, particularly in unionised workplaces. Generally, our advice remains to engage with staff concerns when formulating a return to work plan in order to help satisfy health and safety consultation obligations, and maintain good workforce relations.
Further detail on the Government’s recommended measures for offices can be found in the "Working safely during coronavirus" document, which has been substantially updated from its pre-Step 4 versions. The key points to note are:
- businesses should undertake a risk assessment that should be shared with employees and (for larger firms) published online;
- the Government "expects and recommends a gradual return over the summer" rather than an immediate return to pre-pandemic modes of working;
- the need for equality and non-discrimination should be borne firmly in mind, ensuring employees with particular needs are catered for;
- firms should minimise contact between workers, for instance by using teams or cohorts that do not mix, using protective screens, and avoiding hotdesking;
- cleaning regimes, hand sanitiser provision, and ventilation remain important safety measures; and
- firms should pay particular attention to mental health issues, noting the Government’s separate guidance on that topic.
Some additional information is available from two of the Government’s "Roadmap Reviews". These were established in April 2021, and reports were published last week.
- The "Social Distancing Review" contains an interesting selection of evidence on the effects of social distancing, as we have all experienced it over the course of the pandemic. It does not set out firm conclusions or recommendations in support of the move to Step 4 on 19 July:
- noting the effect of the pandemic on the economy, the report underlines that continued social distancing will constrain the recovery (paras 19-20);
- the pandemic has disproportionately affected hospitality, which employs relatively large numbers of those on a lower income, the young, women and those from an ethnic minority background. Since social distancing limits capacity in this sector, its removal would have a positive effect from an equalities perspective (paras 22-23 and 50); and
- the report states that business would prefer "irreversibility over speed" when thinking about the removal of social distancing measures. This suggests that the Government will try hard to avoid reimposing measures following the move to Step 4 on 19 July (para 25).
- The "COVID-Status Certification Review" looks at whether to make it mandatory to show Covid-free status in order to access services, events or places of work. It makes a number of points:
- there is a balance to be struck between the cost of any mandatory scheme, the need to avoid detrimentally affecting those who cannot show their status (for whatever reason), polling support for "vaccine passports", and the potential to help safeguard the health and wellbeing of people and enable them to feel safer;
- policy should take note of groups where there is vaccine hesitancy, groups for whom it could be difficult to access or administer tests, or groups who may face higher levels of digital exclusion. It should also note that, because vaccine rollout is age-based, any scheme will necessarily affect different age-groups differently;
- weighing those factors, the report concludes:
- it will not be mandatory to show Covid-status (para 22); and
- there will be an NHS COVID PASS by which people can show their status if they wish (para 24).
The Q&A that follows sets out some of the issues we have considered in the course of assisting our clients in preparing to reopen their workplaces.
The first issue is to ask what specific information the business wants to collect and why it thinks it needs it - because data protection considerations are relevant here.
The next issue is whether any "survey" will be anonymous. Collecting anonymised data to determine how many employees have been vaccinated carries little legal risk, since the data is not considered "personal data" under the data protection legislation.
Collecting non-anonymised vaccine status data will mean that the data protection legislation will come into play as vaccine status will amount to "special category data", affording it the highest protection for which an organisation will need to show that the processing is necessary for employment obligations. This requires an appropriate policy document in place, as well as maintaining a record of processing activities by conducting a data protection impact assessment (DPIA).
Before collecting the data, the employer would need to ensure that it has a lawful basis for processing – effective planning for a reopening of an office combined with health and safety concerns for its staff might well amount to a good reason for collecting information on which staff have had the vaccine. Employers choosing to go down this route must be transparent with staff, ensuring that they understand why this information is being collected and what it will be used for. They will also need to balance their interests against those of the individual. This requires an assessment of whether the same result can be achieved in another less intrusive way. For example, (i) could office based Covid-19 testing be adopted rather than requiring employees to disclose their vaccination status? (ii) will the disclosure of vaccination status be voluntary? (iii) will there be any repercussions for employees who do not disclose their vaccine status? Employers should consider these questions as part of the DPIA.
More detail on the ICO’s position on this kind of data collection exercise can be found on their data protection and coronavirus hub.
Interestingly, the Government has announced its intention to use legislation to require all those working in the care home sector to be vaccinated, a step endorsed by the Equality and Human Rights Commission.
Notwithstanding the Government’s decision not to make Covid-certification mandatory (as discussed above), it seems relatively clear that the direction of travel on vaccination is moving towards ever-greater take-up across all sectors of the population, and growing acceptance that showing that you have been vaccinated is a reasonable measure in order to gain admittance to large-scale events and gatherings. Given that context, employers might find that the level of resistance to a "vaccination survey" is manageable although it is also fair to say that so far the majority of our clients are not going down this route. This might change as the return to work plans settle over the summer.
Dividing the employee population into two cohorts depending on vaccine status might appear a sensible approach. Risk may arise, however, if the two cohorts can be divided along any of the protected characteristics. The most obvious is age: because the vaccine roll-out is largely dependent on age, the vaccinated RTO cohort is likely to be older and the unvaccinated WFH cohort is likely to be younger. An employee in either group who objects to the rule imposed on them may therefore be able to mount a discrimination law challenge. The firm’s defence will then depend on the reason – the "objectively justifiable legitimate aim" – for its stance.
Discrimination also comes into play when considering the reasons why employees might not have been vaccinated. If that reason is connected to a "protected characteristic", in the language of the Equality Act 2010, any employer seeking to force vaccination would need to show its decision was objectively justified. One can imagine a number of protected characteristics that might be relevant in this context, such as being pregnant.
More interesting is the protected characteristic of religion or belief. Some employees may have religious objections to vaccination. Some may subscribe to an "anti vaxxer" viewpoint, or object to any drug containing animal extracts, or that has been tested on animals. Depending on the coherence of that viewpoint, the reasons for it, and its effect on the individual’s life more widely, it is possible that it might amount to a philosophical belief qualifying for protection in the same way as a belief founded on religion.
When assessing whether a belief qualifies for protection, the Tribunals apply five threshold tests: (i) the belief must be genuinely held; (ii) it must be a belief and not an opinion or viewpoint; (iii) it must be a belief as to a weighty and substantial aspect of human life and behaviour; (iv) it must attain a certain level of cogency, seriousness, cohesion and importance; and (v) it must be worthy of respect in a democratic society, not incompatible with human dignity and not conflict with the fundamental rights of others.
In a recent, well-publicised decision, the Employment Appeal Tribunal considered whether so-called “gender-critical” views were protected. Those views hold, amongst other things, that sex is immutable, transwomen can never be the same as natal women, spaces should be reserved for natal women, and natal pronouns should be used – a practice often called “mis-gendering”. The focus in this case was the final criterion – item (v) in the list above. Adopting the approach of the European Court of Human Rights, the EAT concluded that only the most offensive forms of hate speech (e.g. Nazism or totalitarianism) should fail this part of the test. “Gender-critical” views, while offensive to some, are not at that extreme end of the spectrum. They are therefore protected in principle. The EAT was at pains to stress, however, that just because a belief qualifies for protection, that does not give adherents of that belief carte blanche to offend colleagues, harass them or discriminate against them. Such behaviours would give rise to liability, whatever the belief system motivating them.
Applying that logic to "anti vaxxer" views, it is relatively easy to imagine a claimant satisfying all five of the threshold tests. The real question in any litigation will be whether the detrimental treatment – being required to WFH, or being disciplined, or being dismissed etc – which is likely imposed because of a refusal to be vaccinated rather than the anti vaxxer viewpoint per se, is objectively justified.
Again, there might be an age discrimination angle to deal with, but an objective justification ought to be relatively easy to formulate. The key issue is going to be what employers will do if the policy is breached: if those employees are required to work from home, it will be important to ensure parity between the WFH and RTO populations. That can be difficult in terms of promotion and reward, where those in the office are often preferentially treated.
Trickier issues arise if some sort of sanction is to be imposed for breach of the policy. Discrimination concepts would come into play (as discussed above), but firms would also need to have in mind the additional protection offered by ss.44 and 100 of the Employment Rights Act 1996. Those sections permit a claim where an employee is detrimentally treated, or dismissed, because they have refused to attend the workplace "in circumstances of danger which they reasonably believe to be serious and imminent".
A number of precisely this type of claim have been reported over the last few weeks arising from the first lockdown in Q2 2020. They are inevitably fact-specific, but offer some useful points to note:
- employees whose roles cannot sensibly be performed remotely will find it harder to remain at home;
- insisting on being furloughed is unlikely to endear claimants to the Tribunal;
- taking sensible steps to facilitate remote working, and keeping one’s employer informed, will assist claimants; and
- claimants who are fearful about attending work because of caring responsibilities for vulnerable family members are likely to receive a more generous hearing.
Given the evident risk in this area, clients contemplating adopting a stricter approach should seek advice at an early stage.
Mandating vaccination for employees has not been tested in UK law yet. The key problem with mandating the vaccine will be the risks associated with dismissing employees who refuse, and the potential for discrimination claims from employees with protected characteristics. It will be harder to dismiss an employee fairly where they can continue to perform their job without needing the vaccine. In contrast, if employees are required to travel to locations where the vaccine is needed for entry into that country, then the requirement to be vaccinated is more likely to be a fair reason to dismiss an employee who refuses.
At the moment, as there is no legal obligation for office workers to be vaccinated or to disclose their vaccine status to their employers it would be risky to implement a policy requiring staff to be vaccinated. This might shift once the vaccine has been available to the entire adult population for a significant period of time.
Public Health England has launched a campaign to assist employers to encourage their staff to be vaccinated. A toolkit, including posters and briefing notes, is available online. One of the key aims of the campaign is to ensure employees have reliable information about the UK’s vaccination programme, given the level of inaccuracy circulating on social media.
It is reasonably likely, if you introduce a RTO policy, that some employees may request flexible/agile work arrangements (i.e. working from home/WFH). Most clients will have a flexible working policy which confirms the procedure for making a formal WFH application. As a very brief reminder, flexible working requests are governed by statute in the UK. It is open to an employer to reject an application for flexible working for any of the following business reasons: (i) extra costs that will damage the business; (ii) the work cannot be reorganised among other staff; (iii) people cannot be recruited to do the work; (iv) flexible working will affect quality and performance; (v) the business will not be able to meet customer demand; (vi) a lack of work to do during the proposed working times; and (vii) the business is planning changes to the workforce.
Some clients will prefer less formal agile working arrangements that offer flexibility. In all cases, firms should consider some of the practical aspects of flexibility.
- How much freedom is available? Should departments or teams be required to attend on particular days?
- How will learning and development be maintained?
- How will promotion and reward be dealt with, given the perception that those in the office are often preferentially treated?
- How will confidentiality and document management be addressed?
- How will meetings be managed if some participants are remote and some are in the office together?
