Employment Law Coffee Break: Covid-19 update, hybrid working and managing IP and commercial risks, and a new health and social care levy

Covid-19 update: autumn and winter 2021/22 plan

The government has published its autumn and winter plan for England in response to the continuing Covid-19 pandemic and the need to ensure that the NHS is not put under unsustainable pressure – plan A. If further measures are necessary to protect the NHS, the government has also provided details of its contingency plan – plan B.

What does Plan A mean for employers?

Plan A is inevitably detailed and confirms the government's commitment to supporting businesses through guidance. The Working Safely guidance on how employers can reduce risks in their workplace has been updated and businesses should continue to consider this guidance when preparing their health and safety risk assessments, and put in place suitable mitigations. In particular, businesses are encouraged at their place of work to:

• ask employees to stay at home if they are feeling unwell – it remains the position that businesses are subject to a legal requirement not to ask or allow employees to come to work if they are required to self-isolate under the current rules;
• ensure there is an adequate supply of fresh air to indoor spaces. Businesses should identify any poorly ventilated spaces, for example by using a CO2 monitor, and take steps to improve fresh air flow in these areas – further guidance on ventilation in workplaces is expected; and
• provide hand sanitiser to enable staff and customers to clean their hands more frequently, and clean surfaces that people touch regularly.

The updated Working Safely guidance confirms that face coverings are no longer required by law, however it expressly states that "people should wear face coverings in crowded, and enclosed settings where they come into contact with people they do not normally meet… be aware that workers may choose to wear a face covering in the workplace". Employers should take steps to ensure that all individuals feel comfortable to wear a face mask if they wish to do so and also consider whether they may be appropriate in certain areas of the workplace, taking care not to inadvertently discriminate.

The role the vaccination programme has played in tackling Covid-19, and the government's commitment to it, is clear with plans announced for vaccination booster jabs to be made available this September to all those who were in priority groups 1 to 9 during the first phase of the vaccination programme. With mandatory vaccinations for those working in care homes due to come into play on 11 November (subject to a judicial review), a consultation on whether this should also be followed in frontline health and social care settings, and the programme now extending to children aged 12 and above, vaccinations remain a hot topic. It will be important to remind employees to remain respectful of individual views and ensure employees are not harassed or treated unfairly for the choices they have made.

The potential impact of influenza is also recognised with the government recommending as many people as possible receive a flu vaccination this autumn and winter to reduce the overall pressure on the NHS. The groups of people eligible for a free flu vaccination has been extended to include not only those who are pregnant, vulnerable or 65 years old and over, but also 50-64 year olds and secondary school children. Minimising sickness absence is key for many businesses recovering from the pandemic. While many employers already offer an in-house vaccination programme for staff, consideration should be given as to how to encourage uptake and ensure those who want a jab are captured where they may be remote working (for example, through a voucher scheme).

Express reference is made to long Covid, described by the National Institute for Clinical Excellence as "signs or symptoms that develop during or after an infection consistent with Covid-19 that continue for more than 12 weeks and are not explained by an alternative diagnosis. It includes both ongoing symptomatic Covid-19 and post-Covid-19 syndrome" and support that will be provided through the NHS. Employers will need to remain alert to the potential impact on their employees; particularly where absence and/or performance issues arise. Long Covid may qualify as a disability under the Equality Act 2010; care must be taken not to discriminate against affected employees and consideration given to any reasonable adjustments that may be required. Even where the employee is not disabled for the purposes of the Equality Act 2010, it may potentially be reasonable to consider appropriate adjustments to working arrangements to take account of any ongoing health issues arising from Covid-19 infection.

The government has also confirmed that the clinically extremely vulnerable should continue "to follow the same guidance and behaviours as the rest of the adult population". Employers should note though that "the government will continue to assess the situation and the risks posed by Covid-19 and based on clinical advice will respond accordingly to keep the most vulnerable safe". In the meantime, careful consideration should be given to additional precautions (including those recommended by the individual's health professional) that may be appropriate.

And Plan B?

Where Plan A is not sufficient to prevent unsustainable pressure on the NHS – which the government considers is "plausible" amid the "significant uncertainty" – Plan B sets out further measures that may be required. These include clear and urgent communications to the public on the need to behave more cautiously, introducing mandatory vaccine-only Covid-19 status certification in crowded indoor and outdoor settings which meet threshold numbers of people, and legally mandating face coverings in certain settings.

Significantly for employers, the government has also stated that it "would also consider asking people once again to work from home if they can, for a limited period" following advice that it is the high levels of homeworking which have played an important role in preventing sustained epidemic growth in recent months; the plan states that working from home reduces "transmission risk inside and outside of the workplace, including by reducing the number of people taking public transport and the number of face to face meetings and social activities and thereby reducing community and household transmission". However, it is recognised that homeworking "causes more disruption and has greater immediate costs to the economy and some businesses than the other Plan B interventions, so a final decision would be based on the data at the time". While this does not immediately disrupt plans to return to office-based working, employers should be prepared to return to a homeworking model if necessary but also in the meantime expect some that some employees will wish to continue with homeworking in light of the government's position on this.

It is clear from the government's latest announcement that it is taking all measures it can to avoid any further Covid-19 lockdowns. However, as we have become used to, there is no certainty and employers should note that "more harmful economic and social restrictions" beyond those in plan B are not ruled out – these would only be considered as a last resort.

Hybrid working: mitigating IP and commercial risks

In this episode of our Future of Work hybrid working series, Employment Partner Olivia Sinfield talks with Becky Crawford, a Senior Associate in the Commercial Disputes team, about the various commercial issues businesses need to be aware of when implementing new workforce or workplace strategies. We look at issues such as:

• How best should you exit your current IT contract?
• What are the considerations and factors to take into account when looking to create a relationship with your new tech provider?
• How best should you address any liability issues and contingency plans?
• What practical steps should be taken to reduce IP and infringement claims issues?
• What should you be aware of around licensing and safeguarding of confidential information?

In conjunction with this podcast, you can download this flyer detailing our 3 step approach to help you minimise and manage some of the risks.

Employee tax and incentives spotlight: new health and social care levy announced

The government announced on 7 September 2021 that a new health and social care levy is to be introduced in the UK, to pay for reforms to the care sector and NHS funding. The new levy will be based on National Insurance Contributions (NICs). From April 2022, there will be a 1.25% increase in NICs for working age employees, the self-employed and employers. From April 2023, the levy will be formally separated out to become a separate tax on earned income (and NICs rates will return to their current levels). It is important for businesses to note that the 1.25% rise in NICs for the 2022/23 tax year applies to NICs paid by both employers and employees.

Read more in this update from our employee incentives team.