Employment Law Coffee Break: Covid-19 update, IR35 enforcement and the metaverse

Covid-19 update: New public health guidance for workplaces 

The UK Health Security Agency published on 1 April new guidance for employers and workforce managers in England on reducing the spread of infections, including Covid-19, in the workplace and which replaces the previous guidance on working safely during Covid-19.

Employers are expressly reminded of the importance of continuing "to comply with your legal obligations relating to health and safety, employment and equality duties" including the duty to provide a safe place of work and to not discriminate on a number of grounds, including disability. While there is no longer a requirement for most employers to explicitly consider Covid-19 in their statutory health and safety risk assessments, the guidance expressly states that "employers may choose to continue" to do so. Employers are also reminded that they have a duty to consult with their employees, or their representatives on health and safety matters and are referred to the HSE guidance on how to keep people safe and healthy at work.

Actions for employers 

The guidance recommends a number of steps employers can take to reduce the spread of respiratory infections, including Covid-19, which include:

• Considering, in accordance with existing legal obligations, "how best to support and enable" their workforce to follow the "guidance for people with symptoms of a respiratory infection such as COVID-19" (see below) if a person is unwell with symptoms of a respiratory infection, such as COVID-19.
• Ensuring managers "understand how to reduce the spread of respiratory infections, such as Covid-19 and flu" and raising awareness of the symptoms of Covid-19 and other respiratory infections (details of which are available on the NHS website); "this is especially important if there are people in the workplace whose immune system means they are at higher risk of serious illness from Covid-19".
• Considering how best to support and enable staff who wish to be vaccinated to get their vaccines when offered them. There is a Covid-19 vaccination guide supporting employers in this, as well as guidance available through the NHS.
• Bringing fresh air into occupied spaces which can help reduce the concentration of respiratory particles, lowering the risk of airborne transmission of respiratory viruses. The guidance recognises that the risk of catching or passing on Covid-19 and other respiratory infections can be higher in certain places and when doing certain activities.
• The guidance refers employers to HSE guidance on how to assess and improve ventilation in line with health and safety requirements under the Workplace (Health, Safety and Welfare) Regulations 1992. Detailed Covid-19 specific guidance for workplaces and public building is provided by the Chartered Institution of Building Services Engineers (CIBSE) "for those who wish to put additional measures in place".
• Maintaining clean workplaces noting that it is "especially important to clean surfaces that people touch a lot" and that "staff can be supported to maintain a clean working environment by providing them with cleaning products, soap and hot water and/or sanitiser".

The guidance also recommends:

• Giving specific consideration to the management of staff at greater risk from Covid-19, including those whose immune system means they are at higher risk of serious illness from Covid-19. Again, there is specific guidance to support employers in this respect.
• Where high levels of people with respiratory symptoms are experienced in the workplace, the actions detailed in the guidance "should be promoted and applied more rigorously". There is no requirement for employers to report any workplace outbreaks of respiratory infections to their local public health team.

This new guidance supplements other public health guidance published on the same date: "Living safely with respiratory infections, including Covid-19" (which provides advice for individuals on actions to help reducing the risk of catching and passing on Covid-19 and other respiratory infections); and "People with symptoms of a respiratory infection including Covid-19" which sets out advice including for adults with symptoms of a respiratory infection and who "have a high temperature or do not feel well enough to go to work or carry out normal activities", "to try to work from home if you can" and for adults who have a positive Covid-19 test result to "try to stay at home and avoid contact with other people for 5 days after the day you took your test". Where individuals are advised to work from home but are unable to do so, they should "talk to their employer about options available".

Data protection 

The Information Commissioner's Office has also issued new guidance in light of the relaxation of government measures reminding organisations to review their approach to collecting any information to ensure that "it is still reasonable, fair and proportionate to the current circumstances, taking the latest government guidance into account".  Any additional information collected and retained during the pandemic which is no longer required should be securely disposed of.

The guidance also makes clear the significant legal difficulties for any employers considering checking or recording vaccination status, reminding employers of the need to identify a lawful basis to do so and the need to undertake a data protection impact assessment. The guidance expressly alludes to the potential practice of checking vaccination data on a "just in case" basis or where they can achieve their goal without collecting this data, it is unlikely to be justified.

The guidance confirms that data protection law does not prevent employers from keeping staff informed about potential or confirmed Covid-19 cases amongst their colleagues. However, employers should avoid naming individuals wherever possible and should not provide more information than is necessary.  

Next steps

With a move away from more prescriptive workplace measures and self-isolation requirements, employers must now carefully consider this new set of guidance in light of their legal obligations and their own particular workplace – it is clear that an approach adopted by one business may not be appropriate for another. It will be important to ensure that in consultation with health and safety representatives, clear policies are put in place on the workplace measures being adopted going forward, as well as expectations and guidance around attendance (including when non-attendance is appropriate).

Managers will need to understand these new procedures to ensure they are applied consistently across the business, although care must be taken to ensure that careful consideration is given to an individual's particular circumstances, for example where they are at high risk or care for someone at high risk. Adaptations should be made as appropriate in discussion with the employee. Where an employee is disabled, employers should also consider whether it is appropriate to make reasonable adjustments in line with their statutory duty.

We are continuing to advise employers on what the changes in guidance, combined with the removal of other measures including the ending of free lateral flow testing for most individuals, means for their business; our health and safety team look here at the specific risk of personal injury claims by employees who allege they contracted the virus. Please do speak to your usual Osborne Clarke employment team or Mary Lawrence, partner in our health and safety team to discuss any issues further.   

Navigating IR35 as HMRC's 'soft landing' enforcement policy ends

HMRC's "soft landing" enforcement policy for the first year following the commencement of the private sector IR35 regime has now expired. In the future, HMRC is more likely to impose sizeable penalties (in addition to the tax assessment and interest) where it finds that those making decisions about or implementing IR35 processes have been "careless". HMRC is expected to enforce IR35 against the private sector at least as enthusiastically as it has against the public sector. Consequently, many companies are now reviewing their IR35 processes. Our specialist workforce solutions team offer a fixed price, legally privileged review of your IR35 processes and contacts to help identify any gaps and/or risks that need to be addressed to help reduce IR35 tax risk and reassure investors. You can download our IR35 guide. For more information please contact your usual Osborne Clarke contact or Frances Lewis, Head of Workforce Solutions.

The metaverse: What does this mean for employers? 

As hybrid working is fast becoming a daily reality, a blended approach of real and virtual interaction is set to accelerate as more organisations embrace the metaverse. The metaverse comprises a mix of virtual platforms where people can meet, work and socialise, and commencing work as an avatar may at this point seem inconceivable to many. But most of us would have struggled to imagine that hybrid working and meetings via video platforms could become the norm. Olivia Sinfield, partner and Alex Farrell-Thomas, associate, in our employment team consider here what the metaverse means for employers and how HR should prepare.

We also recently hosted a webinar "Working in the metaverse" with our colleagues in France and Germany and which you can watch here.