Returning to work as the English lockdown eases

Question

Points to note

Can employees return to the workplace?

The ‘stay at home’ rule ended on 29 March but many restrictions remain in place and some workplaces are not permitted to reopen, as yet. Government guidance states that people should continue to work from home where they can and this is expected to remain the case until 21 June, at the earliest. As a result, despite expectations being raised in the media of a return to the office, many workers should continue working from home under the guidance. Employers are expected to “take every possible step to facilitate their employees working from home, including providing suitable IT and equipment to enable remote working”.

However, the Government recognises that home working may not be appropriate for some workers, such as where they are facing mental or physical health difficulties or a particularly challenging home working environment. Employees who cannot work from home can attend a workplace which is permitted to be open under the rules, provided they are COVID-secure. This includes offices, factories and construction sites.

What does the law say about the employers’ and employees’ health and safety (H&S) duties as workplaces reopen?

Employers have a legal duty to ensure, 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. This includes conducting regular risk assessments to identify COVID-related risk, appropriate measures to control that risk and consulting with any recognised trade unions, worker H&S representatives or with workers directly, as appropriate.

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.

Employers should refer to the latest Government and HSE guidance. Key measures highlighted by the Government include: risk assessments, frequent cleaning, face coverings, social distancing, adequate ventilation, maintaining contact details to support Test and Trace, keeping workers with COVID symptoms away from work and supporting workers’ mental health. As stated above, the role of ventilation has been strengthened in the updated guidance to state that the risk of transmission is greater in spaces that are poorly ventilated and that ventilation should be used as a control measure to reduce the risk of aerosol transmission. When determining the capacity of the workplace, ventilation as well as social distancing should be taken into account.

Should employers be consulting workers before they return to the workplace?

Employers have a legal duty to consult in good time on certain matters relating to workplace H&S, such as the introduction of measures which may substantially affect the H&S of employees. Therefore, COVID-secure reopening measures, including vaccination and testing policies, may trigger the duty to consult.

Unlike some employment-related consultation duties, there is no requirement to consult with a view to reaching agreement. However, there is an expectation that information will be provided, for example, on proposed H&S measures, that employees or their representatives will be given an opportunity to comment and that the employer will take any comments into account. In our survey on H&S consultation, employers stated that H&S consultation on last summer’s reopening helped allay employees’ fears, educated employees in COVID-secure measures, strengthened employee trust and confidence in workplace safety and resulted in feedback which improved the employer’s safety response.

If the duty to consult applies, who should employers consult?

In workplaces where employees are represented by a recognised trade union, the employer will typically consult safety representatives who have been appointed by the recognised trade union. Where there is no recognised trade union (or the union has not appointed representatives), or for those employees who are not represented by a recognised trade union, the law requires consultation either directly or through elected health and safety representatives (or a combination of both). As a result, many employers have the option of consulting employees directly, for example, in the absence of any representatives/recognised trade union.

Can employers require employees with no coronavirus symptoms to undergo COVID testing before they attend the workplace?

The Government believes that testing has “a key role” in reducing the risk of virus transmission and lateral flow tests, supplied by the Government, are available free of charge until 30 June 2021 for businesses that register by 12 April. It is becoming increasingly difficult for employers to justify not requiring regular testing of its workers as a condition of attending the workplace (subject to employees having a reasonable objection).

Introducing obligatory testing does, however, present data protection, employment relations, employee communications and other considerations for employers. Before introducing a testing programme in the workplace, employers should review the options available and engage with employee representatives, including recognised trade unions, as appropriate.

Given the risks posed by coronavirus infection when balanced against the non-invasive nature of testing, employers should generally be able to justify that testing, whether voluntary or compulsory, is a proportionate and appropriate response to their identified H&S risks. It is recommended that employers introduce a testing policy (which outlines aims, consequences, support, privacy considerations and outcomes) and review the adequacy of sick pay for those self-isolating as a result of workplace testing.

Can employers require employees to be vaccinated before they attend the workplace?

Requiring employees to be vaccinated (in the absence of employees having reasonable grounds for refusal) remains a significant intrusion into their autonomy to choose and determine their own medical care and should be avoided by nearly all employers on legal, ethical and reputational grounds. 

However, while stopping short of explicitly requiring vaccination, employers might want to prevent attendance at work if employees, who are eligible for vaccination, refuse to get immunised without good reason. At this stage, such a requirement gives rise to significant risks for an employer, including practical (there is no reliable way to evidence vaccination status currently) as well as the need to legally justify the employer’s actions on H&S, data protection, discrimination, human rights, constructive dismissal and other grounds. Currently, a potential justification may only exceptionally extend to a small number of workplaces, for example, in frontline healthcare roles if the particular circumstances show that the risk of infection remains high and it is not reasonably mitigated by other means. This may change as the evidence on the role of vaccination in risk mitigation develops but it will continue to depend on the individual employer’s risk assessment.

Can employers demand to know the vaccine status of those employees returning to a workplace?

Employee vaccination status is personal data concerning health and, as such, it 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 ICO guidance, 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 is building for an employer to know this information to inform workplace risk assessments, with the Government updated Roadmap stating that “vaccines have at least some impact on transmission”.

Can an employer require employees to attend work when it reopens?

While it will depend on the circumstances, an employer may be able to require staff to attend their workplace if: the work cannot be done from home; the organisation has not been instructed to close; the employer meets current “Working safely” guidance (e.g. risk assessments, protecting the vulnerable, on social distancing/hygiene/ventilation etc) and the employer ensures, as far as is reasonably practicable, the health and safety of their employees and makes adjustments for those with conditions that amount to a disability and for those at higher risk. Care should be taken to avoid making assumptions which expose the employer to potential discrimination claims (such as whether or not an employee is ready or able to return or making arrangements which unjustifiably and detrimentally affect some groups, such as those with caring responsibilities).

However, employers should take advice when considering their response to any employee refusing to return. For example, when proposing to withhold pay or, in particular, to take disciplinary action where an unvaccinated employee is refusing to attend work due to coronavirus infection fears, given the ER, reputational and legal risks involved.

How can employers support employees who may be concerned about attending a workplace due to health concerns related to COVID-19?

Following the Government/HSE guidance, addressing potential COVID risks and communicating mitigating measures to employees will reduce the likelihood of any employee reasonably believing that returning to work places them in serious and imminent danger to their health. Employers should plan how they will protect people who are at higher risk, such as disabled, vulnerable employees (or employees with such people in their household) and, potentially, those not yet vaccinated. For the duration of the Coronavirus Job Retention Scheme, they may be eligible for, or should remain on, furlough leave. Refer to the latest guidance, listen to the reasons for employees’ concerns, try to find an agreed resolution and keep records.

What happens if returning employees breach social distancing and other H&S policies when at work?

Disciplinary procedures should be clear on this point, well-communicated and sanctions should be proportionate and consistent. The consequences of not enforcing COVID-H&S workplace rules are serious, reflecting the ongoing risk of infection. In addition, employees reasonably believing there to be serious and imminent danger (from coronavirus) have the right not be subjected to any detriment or dismissal if they take protective action such as leaving the workplace, or refusing to attend.

When will social distancing and other COVID-secure measures be lifted?

The Government has committed to reviewing social distancing, mask wearing and other long-term COVID-secure measures before 21 June, in order to inform decisions on how and when they might be lifted. Until then, they continue to apply under Government guidance. In its latest Roadmap Update, the Government is linking any relaxation in social distancing measures with the possible introduction of COVID-status certificates, with a certificate potentially providing “reassurance that an individual is at reduced risk of transmission”. An update on certification is expected later in April.