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Government announces the easing of lockdown in England: workplace implications

  • United Kingdom
  • Employment law


The Government has announced the next steps in its COVID-19 roadmap from 19 July (this date is subject to confirmation on 12 July). In summary, it will remove most legal restrictions in England, meaning the end of rules or instructions:

  • requiring social distancing and the wearing of face coverings
  • limiting the number of people meeting
  • instructing people to work from home

It will retain targeted interventions to reduce risk, including:

  • retaining test, trace and isolate. However, from 16 August there will be changes to self-isolation, including removing the need to quarantine for the fully vaccinated if they are in contact with a positive case. This is a welcome step for employers, reflecting staffing concerns as numbers self-isolating inevitably increase with rising infection rates. It will remain a legal requirement for people to self-isolate if they test positive or are told to do so by NHS Test and Trace
  • managing border controls to reduce the risk of variants entering the UK

Having reviewed the case for COVID-status certification (accessed via the NHS app or website and called the NHS COVID Pass), the Government has also announced that its use would not be mandatory in any domestic (UK) setting. However, it has stated that it will make the NHS COVID Pass available on the NHS app as a certification tool if organisations choose to use certification on a voluntary and lawful basis.

NB. This week’s announcements set out arrangements in England. The devolved administrations are expected to communicate plans for Scotland, Wales and Northern Ireland which may differ from the contents of this briefing.

What does this mean for the workplace?

In broad terms, the Government will expect workers and employers to make their own informed decisions about how to manage COVID-19 risks in each workplace, as Government restrictions fall away. For example, despite the Government dispensing with the requirement to wear a face covering, this may still be considered by an employer to be a reasonable and appropriate safety measure in certain workplaces or circumstances.   

The removal of the ‘work from home’ guidance is likely to result in an increase in commuting and workplace attendance, although we are not likely to see a return to pre-pandemic levels in the short-term, if at all. However, this and other changes announced by the Government do not alter an employer’s existing and ongoing health and safety at work duties.

These duties include: ensuring, so far as is reasonably practicable, the health, safety and welfare at work of their workers and anyone else who may be affected by the employer’s business; conducting regular risk assessments, including the risk of COVID-19 alongside other workplace risks; taking reasonable measures to control risks; and consulting with any recognised trade unions, worker health and safety (H&S) representatives or with workers directly, as appropriate.

According to the Government announcements, all employers will be expected to follow the principles set out in the working safely guidance, which will be updated for 19 July. The Government has indicated that the guidance will continue to set out a familiar range of mitigations that employers should consider, depending on their individual workplaces, including:

  • cleaning surfaces that people touch regularly
  • identifying poorly-ventilated areas and taking steps to improve air flow
  • ensuring that staff and customers who are unwell do not attend the workplace
  • reducing unnecessary contact in the workplace, where practical
  • communicating to staff the measures the employer has put in place

In terms of workers managing the risk to themselves and others, once restrictions are eased, it should be noted that employees also have legal responsibilities: to take reasonable care for their own and others’ health and safety and to cooperate with their employer to help them meet their duties.

In conclusion, the 19 July marks a challenging transition for employers: from clearly-defined COVID-19 restrictions to a new phase where employers must decide for themselves how to apply Government guidance to the H&S risks identified in their own individual workplaces. For many employers, this will lead to a period of incremental, not overnight, change from the 19 July, as workers, managers, facility managers, commuters and others build their confidence in moving forwards safely and effectively, against the backdrop of rising infections this summer.

Outlined below are some frequently asked questions in relation to this week’s announcements:


Points to note

Can employees return to the workplace from 19 July?

Yes, subject to confirmation from the Government on 12 July. As stated above, it will fall on the employer to risk assess how, and when, to return employees to the workplace safely, reflecting their own individual circumstances.


It is expected that many employers will adopt some forms of hybrid, or blended, working going forwards, as part of ongoing COVID risk mitigation and in response to broader lessons learnt from the pandemic. For further information, read our briefing on hybrid working and our briefing on remote working and mental health.

What is the role of COVID employee testing from 19 July?

The Government remains supportive of regular (twice weekly) asymptomatic testing to help find cases and break the chains of transmission and states that regular testing can be used to  “help manage periods of risk such as returning to the workplace”.

Testing should be reviewed as part of updating risk assessments. It can provide an additional COVID-19 risk mitigation measure, to reduce the risk of infection entering the workplace, and to build employee confidence, helping to counterbalance the easing of other restrictions such as relaxing social distancing. For further information, read our briefing on testing in the workplace


How should employers respond if employees are concerned about the easing of COVID-secure protections in the workplace?

Some employees may not want return to the workplace, or may be concerned where existing workplace protections are eased, if they have health fears (such as those with clinical vulnerabilities and/or those who have not been fully vaccinated). By involving any recognised unions or workers in risk assessment planning, and communicating openly with staff on measures adopted to safeguard their health, employers can build employee trust in the relaxation of any existing COVID-19 restrictions, as appropriate.

In the absence of legal restrictions from the 19 July, an employer may require staff to attend their workplace if: the employer ensures, as far as is reasonably practicable, the health and safety of their employees; it makes adjustments for those with conditions that amount to a disability; it acts reasonably, fairly and without discrimination.

Where the employee does not have reasonable grounds for their concerns and the employer has complied with H&S duties, employers should act carefully and sensitively, balancing broader employee relations, risk and reputational aspects.


To help manage COVID-19 risks going forwards, can employers require existing or new employees to be vaccinated as a condition of employment?


It remains the case that requiring existing employees to be vaccinated against COVID-19 is a significant intrusion into their autonomy to choose and determine their own medical care.  It is likely that it will be justifiable only if the health and safety benefit to the employee or others outweighs that intrusion. 

For example, the Government has, so far, acted to make vaccination mandatory only in the care home sector (from later this year). Described as  “an essential public health intervention”, it relied upon data showing the role of vaccination in combatting the risk of outbreaks and severe outcomes, following COVID-19 infection, among vulnerable people in closed settings. 

Unless the Government’s position changes, mandating vaccination outside this care home context will be challenging for most employers to justify on health and safety grounds, and they would be exposed to significant legal risks if they sought to discipline or dismiss an employee who refused to be vaccinated. Many employers are preferring to actively support and educate employees on vaccination, rather than mandating vaccination. However, the landscape is fast-changing, and employers need to keep a watching brief on this area.

There are fewer employment law risks in requiring vaccination as a condition for new starters only, rather than for existing staff.  However, an employer would still need to ensure its processes provide flexibility, including for medical exemptions, to avoid breaches of equality laws. It is also unlawful for an employer to ask a job applicant health-related questions before making a job offer, unless an exception (set out in legislation) applies. Exceptions include: where it is necessary to determine if a job applicant requires any reasonable adjustments or to find out whether a job applicant will be able to carry out an intrinsic part of the job. So the question of an employee’s vaccination status should not be considered until an offer has been made.


Can employers require employees to have been double vaccinated as a condition of entering the workplace?

It has been suggested that some employers will make double vaccination a condition of entering the workplace, allowing remaining staff to work from home until they are double vaccinated. This stops short of explicitly requiring vaccination for all existing employees. However, if employees cannot work effectively from home, and they are not permitted to enter the workplace unless fully vaccinated, this requirement may cause significant discrimination and other employment law risks.

As time moves on and all adults have had the opportunity to be double-vaccinated, the above position will evolve. In the meantime, employers should exercise caution.


Can employers demand to know the vaccine status of those employees attending a workplace, or more generally, to inform risk assessment and planning?


In this situation, an employer seeks vaccine status information, not to prevent attendance to unvaccinated employees, but to use the data to inform COVID-19 risk assessment and mitigation decisions – for example, where the employer wishes to gradually ease some COVID-19 restrictions and needs to understand the H&S implications for all people in the workplace before taking any decisions. The Government has stated that “the NHS Covid Pass will be made available on the NHS app as a certification tool if businesses and other organisations choose to use certification on a voluntary basis”. In addition to recording vaccination status, the Covid Pass records a recent negative test or proof of natural immunity. 

However, such personal health data is special category data under data protection law. An employer’s use of this data must be fair, necessary and relevant for a specific purpose and employee consent should not be relied upon. A data protection impact assessment needs to be carried out to assess the privacy risks and appropriate steps to mitigate them. According to guidance from the Information Commissioner’s Office, employers must have a compelling reason for recording employee vaccination status and whether such a reason exists will depend on the individual workplace risks. Whether a legal basis exists for processing vaccine data will ordinarily depend on whether it is necessary for legitimate interests and for the protection of public health or to satisfy the employer’s health and safety obligations. The public health basis has grown for an employer to know this information to inform workplace risk assessments, reflecting data verifying differences in transmission and infection between vaccinated and unvaccinated employees. However, any justification would depend on the individual workplace or an employee’s role.