Government announces the easing of lockdown in England: workplace implications

Question

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.