19th July… its finally arrived. Can you believe that the day has finally come where restrictions are being lifted? When this pandemic started, I was one of the many positive people that truly believed it would be something that would affect us for a short period of time…how wrong was I! Over a year later… and we are finally coming out of it.
So, what has actually changed as of today?
– The government’s instruction to work from home has been removed.
– Legal restrictions on social distancing have been lifted.
– Legal restrictions on wearing face masks have been lifted.
What the press are hailing as “freedom day” is upon us, which means that many employers will be eager to get their employees back into the workplace. BUT… before rushing to get those doors open and return back to the pre-pandemic ‘norm’, there are few things you need to consider. I have set out below some tips/advice on some of the things you need to be thinking about:
1. Be up to date with government guidance – on the 14th July, the government published their ‘Working safely guidance’ (Working safely during coronavirus (COVID-19): guidance from Step 4 – Guidance – GOV.UK (www.gov.uk)) – this guidance sets out 6 priority actions that employers should take to protect their employees and customers. It covers things like health and safety assessments, providing adequate ventilation, regular cleaning, turning away those with COVID-19 symptoms, enabling people to check in to premises, and communicating and providing training on the current safety measures in place.
2. The new guidance, does NOT, however, supersede the existing legal obligations employers have. You therefore need to be mindful of the legal duties that will continue to apply to you, notwithstanding the removal of the government mandated COVID restrictions. Some of the obligations worth noting here are:
a. Health and safety obligations and the duty to look after the health and safety of your employees.
b. Vaccination status and employee testing – make sure you have regard to both employment law and GDPR considerations before jumping on this bandwagon too quickly.
c. Equality Act 2010 – be sure to comply with your duties under this act when applying safety measures and the way in which the return to work is managed so it does not amount to unlawful discrimination.
d. Employment Rights Act 1996 – and, as we all know, you cannot unfairly dismiss your employees.
3. Can you now force your employees to return to work? The simple answer is no – the lifting of the home working restriction is not a green light for you to throw caution to the wind and force immediate return to the office. If you do choose to have this overly enthusiastic reaction, then you could be met with some challenges from your employees. Some risks/considerations worth noting are:
a. Take reasonable steps to ensure the workplace is safe for your employees to return – in the absence of this, telling your employees to return to work will then not be a reasonable instruction. This in turn would risk the fairness of any disciplinary action that could be based on it.
b. The clinical vulnerable – if an employee has concerns about returning to work because they are clinically vulnerable, this raises possible discrimination risks. Be sure to have individual risk assessments before insisting on a return to the workplace for employees falling into this category.
c. Employees with over 2 years’ service have the right to not be unfairly dismissed.
4. Can you require employees to take lateral flow tests? The simple answer is no – the government is still encouraging people to take these tests, however, it remains a voluntary decision for employees as to whether they do this or not. For more information on this and whether employers can require their employees to do COVID testing, see our other blogs on our insights page.
5. Can you ask about the vaccine status of employees? From an employment law perspective, you are permitted to ask your employees about vaccine status, provided that the collection of this information does not result in any unfair or unjustified treatment for your employees. Ideally, you should give the option to your employees that they do not need to disclose this information if they do not wish to. However, you will have additional data protection obligations if you wish to retain data on vaccine status.
a. TIP – unless it is strictly necessary to do so, i.e. the information is intrinsic to the nature of the job or necessary for the purpose of reasonable adjustments, we advise that you avoid asking about vaccine status during the recruitment process.
b. WARNING – differentiating between vaccinated and non-vaccinated employees for the moment is unchartered territory. We therefore advise, for the time being, that you should not differentiate between employees in this way as its likely to be a high-risk move.
I could go on and on about the things you need to think about, but I think that is enough for the moment. If you have any questions about any of the above or wish to discuss this further, then please do get in touch with a member of the team.