Posted: 04/03/2022
This article, originally published on 4 March, was updated on 22 April to reflect the new guidance in place.
Following the publishing of the government’s latest Covid-19 response, ‘Living with Covid-19’, on 21 February, updated guidance from the UK Health Security Agency (UKHSA) has been provided and applied in England since 1 April. While the lifting of the remaining restrictions and a return to ‘normality’ was welcomed by many, employers and employees remain concerned about the implications for the workplace, particularly as the lifting of restrictions may see a wider return to offices.
One headline issue for employers as we moved into this new phase of the pandemic was that the Statutory Sick Pay (SSP) Rebate Scheme, which enabled employers to claim back Covid-related SSP, ended on 17 March.
One of the key changes introduced from 24 February was that individuals are no longer legally required to self-isolate if they test positive for Covid-19, or are a close contact of someone who has tested positive. However, although self-isolation is no longer a legal requirement, the UKHSA updated guidance sets out that adults with symptoms of a respiratory infection, such as Covid-19, and who have a high temperature or do not feel well, should try to stay at home and avoid contact with others. It also states that those who are asked – or choose – to test and get a positive Covid-19 result should try to stay at home and avoid contact with other people for five days (10 days for other people at higher risk of serious illness) following the day of their positive result.
Employees are also no longer required to inform their employer if they have a positive test and those with coronavirus symptoms are encouraged to ‘exercise personal responsibility’ and show consideration to others. Employers do of course have a duty of care to protect the health and safety of their staff, and may therefore wish to introduce their own policy for employees, requiring them to continue to test before attending the workplace, notifying the employer if they test positive for Covid-19.
This is relatively straightforward where employees are able to work from home, but what about those employees who need to be present in the workplace in order to carry out their job? Those who are self-isolating are no longer deemed incapable of work and SSP is not payable. Those who are symptomatic and therefore incapable of work will of course continue to be entitled to SSP, although the regulations enabling anyone absent for a Covid-related reason to claim SSP from day 1 of absence has been repealed from 24 March, meaning that SSP kicks in on day 4 of absence, in accordance with the usual rules.
If employers want staff who are not too ill to work to remain away from the workplace, with the result that they will be unable to carry out their duties, they will need to be prepared to pay their full salary for the period of absence, otherwise they risk claims for breach of contract or unlawful deductions from wages.
To reduce such costs, some employers have been considering the adoption of policies requiring staff testing positive for Covid-19, who are not too ill to work, to take paid leave and stay at home. Alternatively, the provision of a new pay structure specifically for Covid-19 related absences has been considered. The introduction of such policies is not without risk, particularly where there are proposals which may impact on existing contractual pay entitlements.
Furthermore, reducing or withdrawing pay from those who are self-isolating does not only carry legal risks, but it also increases the risk that workers will choose not to get tested, or will turn up for work despite testing positive, with the consequent risk to health and safety in the workplace. Whatever employers choose to do, they will need to have a robust absence policy in place to address such issues, and to set out clear guidelines regarding testing and reporting.
The position became more complicated from 1 April as the availability of free testing has been reduced. Employers who wish to insist on employees being tested are likely to have to fund private testing out of their own pockets. Depending on the number of workers involved, over time, this cost could be significant. Employers also need to be mindful of data protection obligations as they will now need a legitimate reason for processing sensitive health data, as non-legally required testing for precautionary measures may not be a sufficient justification.
The duty to protect employees’ health and safety has been thrown into sharp focus during the pandemic as employers have grappled with making their workplaces ‘Covid-secure’. From 1 April, employers no longer have an obligation to deal specifically with Covid-related risks in their workplace risk assessments. The general health and safety duties to employees, however, in most circumstances require Covid-related risks to still be considered, and it may be advisable to maintain many of the measures already put in place.
As mentioned above, on 1 April the new public health guidance was published by the UK Health Security Agency (UKHSA), which replaced the working safely guidance and provides some clarity for employers. Such guidance encourages anyone who needs to leave their home while they have symptoms of a respiratory infection such as Covid-19, or within 5 days following the day of their positive test, to take important precautions to minimise the chance of passing on their infection. Examples of such precautions, which employers may wish to include in their policies, include:
For the wider population who don’t have symptoms of Covid-19, the updated guidance also encourages vaccination, the ventilation of indoor spaces, wearing a face covering or mask in certain situations and keeping up good hand and respiratory hygiene.
Extra care should continue to be taken for those at high risk of serious illness, including those with a disability. For example, potential reasonable adjustments to the workplace should be discussed with disabled workers so they can work safely.
As self-isolation and regular testing have been withdrawn, it is likely that employers will see a greater number of employees refusing to attend the workplace due to concerns for their health and safety. Employers will need to be able to reassure staff that they are meeting their health and safety obligations by ensuring that they continue to undertake proper risk assessments (see above).
Employees and workers can bring employment tribunal claims if they are dismissed or subjected to a detriment because of anything they have done or propose to do in order to protect themselves or others, including a refusal to return to work or leaving work, in circumstances of danger which they reasonably believe to be serious and imminent (sections 44 and 100 of the Employment Rights Act 1996). Similarly, anyone who raises concerns about Covid-related risks in the workplace is likely to be protected by the whistleblowing legislation.
Employers will, however, need to consider how ‘refusers’ should be treated. Ultimately this may be a disciplinary issue and employers should ensure that their disciplinary policies are robust and up to date. Rather than move to disciplinary action, there may be other options to be considered. Is it feasible to allow people to work permanently from home and, if so, how can you avoid creating a ‘two tier workforce’? Will employees who do not attend the workplace find themselves marginalised or excluded or, conversely, will those who are not permitted to work from home feel resentment?
Requests to work from home permanently should of course be considered on a case by case basis and be dealt with under the flexible working request regime. Some employers are considering the possibility of reducing pay for those who choose to work from home, and this is a possible option, although such a policy would need to be introduced with care, and there are potentially discrimination issues.
The lifting of Covid restrictions has created more uncertainty in the workplace. What is clear, however, is that employers who have clear and up to date policies in place to cover sickness absence, health and safety and disciplinary issues, and who are proactive in consulting and communicating with staff and their representatives about how Covid risks are addressed when establishing such policies, which is encouraged in the updated UK Health Security Agency (UKHSA) guidance, will be better placed to navigate the new challenges that ‘living with Covid’ has presented.
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