Back to work – where exactly does this leave employers in the aftermath of “Freedom Day” ?

5 August 2021

“Freedom Day”, and what it actually means in practice, is not proving to be quite as straightforward as some had hoped (and arguably as the Government had initially led the business community to believe).  Employers can be forgiven for feeling confused as to what is expected of them and what they should be doing in terms of bringing their employees back into the workplace.

We are by no means at the end of the debate, but we summarise below, the latest developments:

Return to the workplace
On 14 July 2021 the Government published it’s long awaited guidance on working safely during coronavirus for the purposes of Stage 4 of its roadmap to ease restrictions.  We considered key aspects of that guidance in a recent article.   

Since 19 July 2021, the Government has ceased to instruct people to work from home if they can.  However, that does not mean they are looking for an immediate and mass return to the workplace either. Rather it “expects and recommends a gradual return over the summer”.  Doubtless they hope that by the end of the summer, the vast majority of adults will have had an opportunity to be double-vaccinated and, assuming high take up, the risk of COVID-19 will be significantly diminished such that it is safe (or safer) for people to come back into the workplace. 

In our experience, businesses have by and large heeded the message to take a cautious approach. Many have introduced hybrid working models which would allow staff to spend more days working from home than in the office on a permanent basis.  This has sparked concern that the recovery of city and town centres will be adversely affected. So there may be more “encouragement” to come, to get workers back into the workplace. Indeed, the Government’s current philosophy has become clearee over the last few days as the Chancellor, Rishi Sunak, urged young employees in particular to return to the workplace, pointing out this would be “really beneficial” for their careers.       

 “No jab, no job”?
This debate has recently been revived in the context of the “NHS COVID Pass”, and the ability of businesses to make this a requirement from 19 July 2021

Questions have been raised about whether employers can, or indeed should, require staff to produce an NHS COVID Pass as a pre-condition to being allowed back into the workplace. Arguably this is in effect introducing a “no jab, no job” policy through the back door.

The Equality and Human Rights Commission and the CIPD have both spoken out against a “no jab, no job” approach, pointing out that it is likely to be unlawful and may discriminate on the basis of disability, or religious or philosophical belief. 

Acas advises employers to encourage and support their staff to get vaccinated but without making it an actual requirement (see here for the ACAS guide). 

The Government’s own COVID-19 vaccination guide for employers also urges employers to encourage their employees to get vaccinated.Notably, it contains no mention of employers being encouraged to compel staff  to get vaccinated or prove their vaccine status. 

So it is clear the Government has been hugely reluctant to mandate vaccination. Nonetheless, they have recently passed regulations requiring staff employed in registered care homes in England to be fully vaccinated unless they are exempt.  Those regulations will come into force on 11 November 2021.   

This was followed by senior ministers (Transport Secretary Grant Shapps and Foreign Secretary, Dominic Raab) being quoted in the press  expressing support for businesses considering making vaccination a condition of returning to the workplace, although at the same time they made clear the Government would not be passing legislation to that effect. The legal risks involved in doing so have not changed.     

In relation to making vaccinations compulsory that means, legally speaking, only employees working in registered care homes in England are actually being mandated to get vaccinated.  The Government has so far been reluctant to extend this compulsion, although it is coming under increasing pressure to do so, not least in relation to front line NHS/health workers. 

That being the case, and the legal position being as it is, it would be a bold (and, we would say, risky) approach for employers to introduce a blanket vaccination requirement as a pre-condition to entering the workplace at this stage, notwithstanding the fact that the national mood may seem to be heading in that direction.   Instead, employers minded to introduce such a requirement would be well advised to exercise caution, and to ensure that the wording of any such policy specifically allows for flexibility and the opportunity for employees to come forward and explain any issues they may have with vaccination.

Daily contact testing – the future of the “pingdemic”?
The Government’s guidance on NHS Test and Trace in the Workplace was updated on 3 August 2021. It includes a new section on “Daily Contact Testing”. This is designed to offer an alternative to self-isolation for contacts of confirmed COVID-19 cases.  Under the scheme, people who are informed that they have been in close contact with someone who has tested positive for COVID-19 will be required to take a daily lateral flow test for seven days. Provided they have a negative result, they will be able to attend work as normal, rather than self-isolate.

However, the daily contact testing scheme is only available to certain workplaces.  The initial roll-out is limited to workplaces in sectors that provide essential services, such as food distribution and production, emergency services and transport networks.  Nonetheless, it is expected that the scheme will be rolled out more widely, as pressure builds for the Government to address the disruption caused to businesses by large numbers of workers having to self-isolate as a result of being contacted by NHS Test and Trace, or being “pinged” by the NHS COVID-19 app.

What next?
The Government is due to assess the country’s preparedness for autumn and winter in September. This will include a review of the position on face coverings and test, trace and isolate. Hopefully there will be more clarity on these matters by then.

In the meantime, we would advise employers to take a cautious approach. In particular, they should ensure they have room for flexibility and compromise in any new requirement or policy that they look to introduce in their “roadmap to normality”.   

FURTHER INFORMATION

If you have any questions or concerns about the content covered in this blog, please contact a member of the Employment Law team.

 

ABOUT THE AUTHORS

Richard Fox  is a partner within the Employment team.  Richard acts for corporates, organisations and senior individuals in relation to employment matters of all kinds.

Özlem Mehmet is a Professional Support Lawyer in our Employment Team.

 

 

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