Employment Law Coffee Break: Covid-19 update and health and safety considerations for hybrid working

The health and safety considerations for hybrid working 

In this, the first in our new series of podcasts on the Future of Work, Employment Partner Olivia Sinfield is joined by Mary Lawrence, Partner in our Health and Safety team, to discuss the health and safety implications relevant to hybrid working.

Living with Covid in the workplace: what should employers do as restrictions lift

This week the prime minister, Boris Johnson, sent a clear message to businesses that they should prepare for most Covid-19 legal restrictions to be lifted from 19 July. Confirmation will be given on 12 July but from 19 July businesses should expect:

• The government instruction to work from home where employees can will be lifted.
• The 1m+ social distancing rule will be abolished and there will be no limit on the size of groups which can meet indoors and outdoors.
• There will be no legal requirement for people to wear facemasks.

Sajid Javid, the Health Secretary, has also announced changes to the self-isolation rules. From 16 August it is proposed that an individual who is identified as a close contact of a positive Covid-19 case will not have to self-isolate provided they are fully vaccinated (that is, they have received two Covid-19 jabs and at least two weeks have elapsed after their second jab). Instead they will be advised to take a PCR test (rather than a lateral flow test) as soon as possible. The same policy will apply to anyone under 18. From 19 July school bubbles will also end meaning that children will not longer be automatically sent home to self-isolate where one person in their bubble has a positive Covid-19 test result. It will remain a legal requirement for individuals to self-isolate if they test positive for Covid-19.

What should employers do now?

How an employer shapes its response to the latest announcement will need to be considered based on each employer's own circumstances in light of their continuing legal obligations, the commercial situation and the practical realities they face. As businesses continue their economic recovery, protecting employer brand and employee relations will be key.  

1. Continue to comply with health and safety duties and reflect latest government guidance 

All employers retain a duty to ensure the health and safety of their employees (and others impacted by their business) so far as reasonably practicable. There will be an expectation that businesses continue to follow Covid-19 guidance to manage the relevant risks, unless these can be managed in another way. Indications are that the government will publish revisions to current guidance to reflect this new stage in its Covid-19 response.

The importance for employers of complying with continuing government Covid-19 guidance has also been underlined by cases we have seen coming out of the Employment Tribunal relating to statutory claims where an employee has alleged that they have been dismissed or suffered a detriment due to a reasonable belief that they or others would be in serious and imminent danger if they returned to work. This statutory claim has recently been extended to workers who allege a detriment.

Employers should continue to ensure that any measures which they do put in place do not discriminate directly or indirectly under the Equality Act 2010.

2. Continue to encourage vaccination take-up 

The numbers being vaccinated remain high and the government has indicated that by 19 July all adults will have been offered their first dose. However, it remains the case that there will be those who for various reasons choose not to be vaccinated. Many employers have been considering whether it would be prudent to introduce some form of compulsory vaccination requirement (including requiring employees to demonstrate evidence of vaccination). While the government has committed to introducing compulsory vaccination requirements into care home settings (and potentially other NHS settings), there are no indications at present that this legal requirement will be expanded further. Given the inherent legal risks and sensitivities in requiring individuals to be vaccinated to carry out their work, businesses should continue to consider how they can manage any risks through continued use of other measures, such as social distancing etc. This is something we continue to talk to employers about given individual circumstances and are watching any legal developments closely.

3. Provide reassurance to staff, visitors and other third parties

Against the backdrop of rising Covid-19 cases, employees, many of whom have been working under strict Covid-19 measures or working from home, are likely to be understandably concerned as to how their employer responds to the government's latest announcement. Many may not be fully vaccinated until early autumn at the earliest. Ensure you have clear communication channels directly with staff and via health and safety representatives regarding the measures put in place to protect health and safety. Clear policies should also be put in place for visitors and other parties attending premises, as well as for your staff who are required to attend third party premises. 

4. Manage individual concerns carefully and sensitively

Employers should ensure that individual issues are considered carefully and sensitively. While for most employees the measures put in place by an employer should provide sufficient comfort, there may be instances, for example where an employee has particular vulnerabilities, that further steps should be considered. Failing to consider individual issues carefully and sensitively could lead to claims of breach of trust and confidence and depending on the circumstances, potential discrimination claims (for example, where the employee is pregnant or has a disability).

5. Pre-empt any practical repercussions arising from the government's lifting of restrictions more generally

With cases expected to rise as restrictions are lifted, particularly where staff are yet to be fully vaccinated, employers should anticipate increased staff sickness absence in the immediate period surrounding the removal of restrictions. It will be important to ensure managers are comfortable managing absences which do arise. Building up an understanding of long Covid and the impact this may have on individuals will be critical.

Likewise, while the relaxation of the self-isolation rules for those who are fully vaccinated will be welcomed, with many workers still unlikely to be fully vaccinated, businesses should ensure staff are clear on when they are expected to self-isolate and the terms which will apply (for example, will they be expected to work from home, benefit from company sick pay etc.)

Many employers have already been planning for a return to work, with many looking at hybrid working arrangements and putting in place policies for when restrictions are eased. As these arrangements are tested in practice, identifying any legal risks and the impact on working relationships will be key. Clear rules should also be put in place for managing holiday requests where there are concerns that a surge may arise as working arrangements change. Employers should also prepare for an increase in statutory requests to work flexibly (for example where an employee's proposed arrangements fall outside the parameters of any hybrid working policy). Against the backdrop of extended homeworking during the pandemic, these requests will need to be handled particularly carefully to avoid legal claims and employee relations issues.

What next?

We now wait for further confirmation on 12 July that legal restrictions will be lifted as indicated. Boris Johnson stated in response to a question at his press conference on 5 July that once restrictions are lifted it is "really now a matter for employers and employees to work out what they want to do". What is clear is that employers should not rush to remove all restrictions overnight; as the government has alluded to, we will all still be living with Covid-19 and businesses will be left with some difficult decisions to make.

Please speak to your usual Osborne Clarke employment contact or partner, Mary Lawrence, who leads our health and safety team to discuss the implications of the latest announcements for your business.