‘Freedom day’……..what employers must consider on return to the workplace.

22 July 2021

Disclaimer: This article makes reference to the 12 July 2021 announcement made by the Prime Minister that applies to England only (the devolved administrations has communicated separate plans for Scotland, Wales and Northern Ireland)

The British Prime Minister announced that ‘Freedom Day’ in England would take effect from 19 July 2021. Unsurprisingly, this decision has received mixed opinions to the easing of COVID-19 restrictions. However, as employers open their doors allowing more employees to return to the workplace, consideration must be given to the relaxation of these rules within the ‘new normal’.

Returning to the Workplace – With the majority of employees having predominantly worked from home since the start of the first lockdown, the change in the legal requirement for homeworking will cause many employers to focus on how they would like their workplace to operate and look moving forward. Many individuals may be reluctant to return to the office; for example, they may fear using public transport, they may like the flexibility around childcare, and the clinically vulnerable may be concerned about the risk of the spread of COVID-19 in the workplace.

Under the Equality Act 2010 (EQA), employers have an obligation to make reasonable adjustments and to ensure that a safe working environment exists at all times. To ensure this, employers may find that there is a requirement to make adjustments to the way in which they operate to ease any concerns that employees may have surrounding COVID-19; for example, varying start and finish times to reduce an employee’s use of public transport during busy periods, as well as ensuring that risk assessments are carried out and updated on a regular basis. Part of this consideration could very well be to allow certain employees to continue to work from home.

Whether employers can insist on employees returning to the office will also very much depend on whether they have a contractual right to enforce this. It is unlikely that employers will have taken the steps to amend employment contracts to reflect the change in an employee’s place of work and therefore, in most cases, the contractual place of work will be the office. Find our more by contacting us at Redkite Solicitors.

Flexible working – There has been a dramatic shift in the number of employers implementing ‘flexible working policies’, with particular focus being placed on ‘hybrid working’ – where an employee works including some of the time in the workplace and other times at home. The flexible working rules still apply so employees are expected to make a formal flexible working application and the employer still needs to seriously consider the request, which is a statutory requirement. It is also worth bearing in mind that it will likely be more difficult for an employer to reject such an application when in most sectors working a varied pattern and/or, from home has proven to be successful.

Self-isolation – Individuals will still be required to self-isolate if they are contacted by NHS Test and Trace. From 16 August 2021, those who are fully vaccinated or under 18 year of age, and will not be required to self-isolate if they have had contact with someone who has tested positive for COVID-19. However, if an individual tests positive for the virus they will still be legally required to self-isolate and abide by the NHS guidelines. Employers should not pressure individuals to return to the workplace if they have symptoms, or if they have been asked to self-isolate or have tested positive for COVID-19, as they could be fined up to £10,000.

Vaccinations – From October 2021, vaccinations will become mandatory in Care Quality Commissioned Care Homes subject to Parliamentary approval. This does not currently apply to other sectors, therefore it would be high risk to enforce vaccines within the workplace if there are alternatives to minimise the transmission of COVID-19, such as social distancing. An employer may have an argument that employees should be vaccinated on health and safety grounds to ensure the safety of others, particularly where social distancing is not always possible. However, imposing the vaccines on the grounds of health and safety may not always be a justifiable reason and is likely to be deemed as an intrusion as the vaccine is currently not mandatory across all sectors.

 Furthermore, not all employees will be able to have the vaccine and those with a health condition may be advised against it or choose not to. If the condition is deemed as a disability in accordance with the EQA then pressure to get the jab from the employer could result in a claim for disability discrimination. Similarly, religion and belief is a protected characteristic under the EQA and therefore consideration must be provided to employees who may have certain religious beliefs or strong philosophical beliefs that may make them hesitant to get the vaccine.

There will of course be certain roles where making vaccines mandatory would be low risk; for example, if an individual was required to travel overseas to fulfil their job role. However, even in this type of circumstance we would advise that you obtain legal advice first to ensure that there are no potential discriminatory issues involved. If vaccines are required for the role and other COVID-19 safe measures cannot be put in place, then a formal vaccine policy in writing should be introduced and implemented.

Furthermore, although there is less of a risk on making a vaccine (either one or two doses) a condition when offering new employment, there are still discriminatory issues to consider. Applicants do not a qualifying period to make such a claim and it is worth remembering that in any event it is unlawful to ask an employee medical questions prior to a job being offered unless an exception applies.

ACAS (the early conciliation service for employers and employees) has stated that employers should not enforce mandatory vaccinations and instead should listen to employee concerns to understand why they are refusing to have the vaccine. Employers are encouraged to actively support and educate employees on vaccines, instead of making it a condition of employment.

GDPR requirements must also be considered; if an employer asks an employee/prospective employee to provide vaccine status this information is personal health data and a ‘special category data’ in accordance with data protection laws. The requirement to request this personal health data must be on an individual basis in respect of the workplace and the requirements of the employee to perform within the specific job role.

Face coverings – Although the legal requirement to wear a mask in England has been removed, the Government has stated that face coverings are still ‘expected and recommended’ in crowded indoor areas and on public transport. This has now shifted the decision on whether or not face coverings should be worn in the workplace to the employer. Consideration on whether the wearing of a mask is mandatory or not depends on the nature of the workplace, balanced with an employer’s legal duties under the EQA. Failure to make these considerations could result in an influx of discrimination claims.

Such duties include the consideration to make reasonable adjustments for employees who are clinically vulnerable as a consequence of a disability and are at higher risk of contracting COVID-19.  In any event, employers must ensure that any measures implemented are a ‘proportionate means of achieving a legitimate aim’ in order to successfully defend such claims. Employers should conduct a risk assessment if it is established that masks are not required and ask employees how they feel about wearing masks, particularly in communal areas. If employees opt for mask wearing to make them feel safe then by implementing a policy that is COVID-19 specific around wearing masks may satisfy the requirement that the policy is proportionate. We would however recommend that employers obtain employment legal advice before implementing such a policy.

NHS COVID Pass – This type of pass will be encouraged in nightclubs and other venues with large crowds ‘as a matter of social responsibility’ and not as a legal requirement. The aim of the certification is to evidence whether an individual is double-jabbed, have had a negative result or have natural immunity after recovering from COVID-19. It has again be left to the employer to decide whether or not to use the certification.

Health and Safety – Obligations under the Health and Safety at Work Act provide that an employer must ensure that, so far is reasonably practicable, there is a safe and working environment in force for all employees when they return to work. Failure to do so, could result in a whistleblowing claim – where an employee makes a disclosure which is in the public interest. Should an employee suffer a detriment as a consequence of this protected type of disclosure then there is a risk of a claim for automatic unfair dismissal.

An up to date risk assessment must be conducted to include matters such as ventilation whenever possible, one way systems, re-arranging of desks to allow for sufficient space, appropriate sanitisation facilities, shields between desks and the public area and the availability of PPE if applicable.

Testing for COVID-19 – This may be considered reasonable for employers to conduct based on health and safety reasons, however, employees may regard testing as an unnecessary invasion of their privacy. Employers should consider whether testing is a proportionate way to address the risk. If not then the employer is at a risk of a potential constructive dismissal claim should testing be enforced, as it could amount to a breach of the mutual trust and confidence that exists between an employer and its employee.

Furthermore, if the requirement for testing is not a contractual right, enforcement may encourage claims of breach of contract.  Should testing be required, employers should consider putting a robust policy in place to support this and ensure that line managers receive sufficient training to deliver the policy effectively. Any changes to the contract and policies should be done through a proper consultation process.

Moving forward – Employers should not rush the easing of the restrictions in the workplace and instead take a consultative and pragmatic approach to understand any employee concerns. Clear and regular communication with employees is vital and it is good practice to have the relevant discussion/s before an employee/employees are due to return to the workplace. Also employers should ensure that regular reviews are undertaken to ensure employees feel confident that the work place is safe.

Due to the ever-changing and complex nature of this topic, as an employer if you are in doubt as to how best you can ease the restrictions you currently have in place or if you an employee who feel unsafe at work due to reluctance to implement COVID-19 safe restrictions, please do not hesitate to get in touch with our specialist employment team on 03330 144 455 or email us on enquiries@redkitelaw.co.uk and one of our expert team members will get in touch to discuss your requirements.

This article was written for Redkite Solicitors by Kelly Rivers, Solicitor in the Employment Team. To find out more about Kelly visit her website profile by clicking here.

The contents of this article are intended for general information purposes only and shall not be deemed to be, or constitute legal advice. We cannot accept responsibility for any loss as a result of acts or omissions taken in respect of this article.

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