Coronavirus: Living with Covid – the implications for employers

2 March 2022

Many may now consider the safest course is to redraft their sickness policies, or even introduce specific new ‘infection policies’.

The government made its long-awaited Freedom Day announcement on Monday 21 February 2022 and later the same day the Cabinet Office published its paper Living with Covid. As a result, the legal landscape for employers and employees changed significantly on 24 February 2022. The legal requirement to self-isolate following a positive test was removed. Self-isolation support payments went too. From 24 March, the special provisions for the payment of statutory sick pay for people with Covid-19 will be removed. So is this all good news for employers? Will this help those who have been charged with managing their workplaces through what remains of the pandemic? Does it mean freedom for them, or something less?

The reality is that some employers are going to feel they have been left to negotiate this difficult area largely on their own. They will have to regulate their workforce themselves and they will no longer be able to rely on a bedrock of government regulation that has taken much, or at least some, of the decision making out of their hands. We may also find we have now entered a new era in which it is no longer acceptable for employees to come into work suffering from an infectious respiratory virus of whatever kind (not just Covid but flu, heavy colds and so on) – which, in some cases, was even encouraged in the past.

Key duties

For the employer, the starting place for any issues of this kind is always the duties it owes to its employees to provide a safe system of work. Principally, these are:

  • the duty under the Health and Safety at Work Act 1974 to ensure (so far as is reasonably practicable) the health, safety and welfare at work of all its employees;
  • the duty at common law to take reasonable care for the safety of its employees and to provide them with a safe system at work; and
  • the term implied into any employment contract to provide a reasonably suitable working environment for the employee to perform their contractual duties.

The government has promised guidance but that has yet to emerge. We are told to expect it in April. So employers will need to consult what is currently available, including helpful guidance from the Health and Safety Executive, such as Working safely during the coronavirus pandemic and the guidance dealing with issues such as risk assessments and how to communicate with staff. But it remains very much that – simply guidance.

 

The dilemma for employers

The specific rules governing behaviour during the pandemic have hitherto provided employers with a bedrock of regulation. There has been no choice but to follow the rules. So the decision as to whether the employee should self-isolate after a positive coronavirus test was not for either the employer or the employee to make. Employees who tested positive were simply forced to stay at home.

Now, employers are going to have to decide for themselves how they are going to approach these issues. That may be more challenging than the government may want employers to believe. In most instances, employees do not have the ability to regulate who comes into the workplace and who does not. They are generally reliant on the employer protecting their interests. There are bound to be employees who, having had a positive test but with no symptoms and feeling well, want to come into work. This may be despite the employer not wanting them to do so. Other employees who work in the vicinity may not want them to come in either.

There are going to be other difficult scenarios requiring judgement calls, not unlike the quandary many employers faced over mandatory vaccination. At first, many employers chose to be careful, fearful of a potential complaint of discrimination if they made vaccination compulsory. Then, as the practice of mandatory vaccination policies became more widespread in the US and other countries, and the government introduced mandatory testing in care homes and almost did so for frontline NHS staff, some employers felt emboldened to take a tougher stance.

 

Can staff with Covid now come into work?

The cautious advice for now is likely to be that, regardless of the expiry of any legal obligation to self-isolate, if a worker tests positive they should not be permitted to enter the workplace. This will be in line with the government’s continuing (albeit non-mandatory) advice to individuals to stay home if they have Covid.

As a minimum, if the employer is inclined to grant permission, it should only do so after a careful risk assessment and consideration of how to control the risks. Given the relative ease with which many employees have managed to work from home over the past two years, this will almost certainly have to be considered as an option. However, if this is not possible, another option might be careful placement of the employee so they are not putting others, particularly vulnerable others, at risk.

Employees themselves may challenge any decision to allow in a colleague who has had a positive test. There have been very few cases to date, so employees’ options are only just beginning to be tested. But there are bound to be requests to see risk assessments and for disclosure of communications that show the employer’s decision-making process, which for an unprepared employer may be awkward. Unions and health and safety representatives may increasingly demand to be consulted and make representations.

Ultimately, for employees, there is the option of using what have been hitherto rarely used sections of the Employment Rights Act 1996. Sections 100(d) and (e) provide that an employee who is dismissed principally because they reasonably believed there to be a ‘serious and imminent’ danger, or because in such circumstances they took ‘appropriate steps’ to protect themselves or others, may have been automatically unfairly dismissed. We can expect more cases on these sections in the future.

 

Possible precautions to take

Employers will have to consider how the world of work may have irreversibly changed in the UK since the onset of the pandemic. A stoical approach by either party in the face of respiratory viral infections of all kinds, not just Covid, may no longer be acceptable. The practice of coming into work while suffering from colds and flu has been widespread for decades, maybe more, but as we increasingly work in air-conditioned offices, and more latterly in open-plan areas rather than cellular offices, we may find that practice increasingly consigned to antiquity.

How will employers rise to meet this challenge? Many may now consider the safest course is to redraft their sickness policies, or even introduce specific new ‘infection policies’. In particular, these would make clear that anyone testing positive for or with symptoms of coronavirus (or indeed with evidence or symptoms that indicate they have a respiratory infection of any kind) must, subject to their being well enough to do so, work from home. Or, if they cannot work from home, then they must stay at home for a particular period of time. If the employee feels well enough to work, it is likely that the employer will have to offer them full pay. This is because employees are entitled to be paid if they are prevented from working when they are ready, willing and able to do so.

The face mask is another issue for employers. A requirement to wear one has waxed and waned over the past two years. For some (but not all), it is a simple enough precaution, particularly when it comes to moving around communal areas rather than being at an individual work station. We may see it becoming a standard feature in our workplaces for a while yet, subject to the granting of exemptions in appropriate cases. It may even become a more long-term fixture of working life. For many employers, it could be something to include in risk assessments, and a relatively inexpensive way of controlling risks in addition to the adoption of ventilation and social distancing, which, again, employers may want to retain.

 

Vulnerable employees

Employees who have an underlying health condition that makes them particularly vulnerable if they catch Covid, or who have someone vulnerable in their household, do not currently have an easy route to establish the right to work from home. However, they may now push hard to work remotely given the risk of colleagues not isolating despite having Covid.

The employer may have a flexible working policy and there is the statutory right to request flexible working – but not the right to flexible working itself. In its 2019 manifesto, the government committed to promote flexible working and introduce measures to make it the ‘default’, unless employers have good reasons not to grant it. This has been subject to a consultation, which closed on 1 December 2021. We have yet to see the outcome, but it does seem the government is unlikely to commit to a ‘default’ right as such. It is still going to be possible for employers to turn down flexible working requests to work wholly or mainly from home.

As is already the case, employers will have to have a non-discriminatory reason for rejecting requests to work flexibly. However, given how widespread working from home has now become, the balancing exercise for determining the outcome of a request, and what may be perceived as a discriminatory reason for turning it down, may have become more challenging.

 

New challenges

The government has clearly wanted to mark a step change in the war against Covid. Undoubtedly, there is symbolic value in abandoning the last of the regulations, but the reality for employers may be that they have not at a stroke become liberated from an enforced regimen. Instead, they may have become exposed to many more challenges in their management of their workforce while the pandemic remains with us. No wonderthere has been such an urge for the government to publish guidance in the immediate aftermath of the abandonment of the regulations, and many employers will maintain a keen interest in its early publication.

This blog was first published in Employment Law Journal in  March 2022 issue.

FURTHER INFORMATION 

For further information on the issues raised in this blog, please contact Richard Fox in our Employment team.

 

ABOUT THE AUTHORS

Richard Fox is a senior partner within the Employment team. He has been at Kingsley Napley throughout his career and until October 2019, led the Employment team since its inception more than 25 years ago.

 

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