Employment Law Coffee Break | Covid-19 update, more key cases in 2021, our latest webinar recording and disability workforce reporting

Covid-19 update

Following on from last week's announcement to instigate Plan B for England in light of rising concerns regarding increasing cases of the Omicron variant, this week has seen new regulations and guidance on face masks, self-isolation and use of the NHS Covid pass at large events and venues. Guidance has also been updated on home working for office workers and daily lateral flow testing for close contacts.

What do the new self-isolation rules mean for employers in England?

Same rules on self-isolation for all regardless of Covid-19 variant

Bringing all individuals who are close contacts of an individual diagnosed with Covid-19 under the same self-isolation regime has helped remove some of the difficulties in understanding which rules apply to whom. Regulations now provide that all individuals identified as close contacts are exempt from self-isolation if they are fully vaccinated, are below the age of 18 years and 6 months, have taken part in or are currently part of an approved Covid-19 vaccine trial or are unable to get vaccinated for medical reasons.

It remains the case that an employee must inform their employer where an individual is legally required under the regulations to self-isolate during a period when they are due to be attending work (unless they are working from home), for example where they are instructed by NHS Track and Trace to self-isolate because they have tested positive for Covid-19 following a PCR test or because they have been in close contact with someone who has tested positive and they are not exempt from the self-isolation requirements. Likewise, an employer must not require or allow them to break their isolation to attend work; to do so is an offence attracting a fine of between £1,000 and £10,000.

New daily LFD testing regime for exempt close contacts

However, employers should note that close contacts who are not legally required to self-isolate are now "strongly advised" to take a daily lateral flow device (LFD) test for 7 days after they are notified of the contact (or until 10 days since their last contact with the person who tested positive for COVID-19 if this is earlier). Where the LFD test result is negative, individuals "can go to work or school and undertake other daily activities in accordance with national guidance" depending "on the circumstances of the individual employer and workplace"; an example is given of health and social care settings where "employers may ask workers to take additional precautions". The updated guidance also "strongly advises" individuals who are part of this daily LFD testing regime to limit close contact with people outside their household and wear a face covering, especially in crowded, enclosed or poorly ventilated spaces, to work from home if they can, limit contact with anyone who is at higher risk of severe illness if infected with Covid-19 and to follow the guidance on how to stay safe and help prevent the spread.

Where an individual tests positive with a LFD test, individuals are advised to self-isolate and take a PCR test. Where the PCR is negative, an individual can stop self-isolating but it is recommended that they continue to take daily LFD tests.

There is no obligation on an employee to inform their employer that they are participating in the daily LFD testing regime (in the same way that there has been no legal obligation on an employee to inform their employer that they are exempt under the close contact rules and are awaiting a PCR test result). However, employers should now revisit any internal guidance for staff on self-isolation and consider what this means in light of their overall Covid-19 secure health and safety risk assessment – are there appropriate control measures which are aligned with current government guidance or which reduce/eliminate risks in an equivalent way?

The media have reported concerns over the availability of LFD tests, with unions calling on the government to prioritise these for individuals who are unable to work from home. While the government previously provided free tests to employers, there are no indications that this scheme will be reintroduced; employers are instead encouraged to put in place their own arrangements (at their own cost) or for individuals to obtain their own tests via the government website or through pharmacies and other designated collection points. Where any employer-led testing is implemented that extends beyond the simple provision of test kits to those requesting them, care will need to be taken to ensure that the arrangements put in place are in compliance with employment, health and safety and data protection laws.

The Chartered Institute of Personnel Department (CIPD) and trade unions have also called for the rate of statutory sick pay to be raised to at least the equivalent of the national minimum wage or national living wage to provide a better financial safety net for workers (many of whom feeling they must continue to work while ill or struggling financially with self-isolation). The CIPD is calling on the government to consult on how the statutory sick pay (SSP) system can help employers attract and retain a diverse workforce and better reflect today's labour market, including support for those in atypical work, including the self-employed.

Covid-19 pass

From 15 December, large events and venues meeting certain threshold numbers in England must legally require over-18s to prove they are either double vaccinated against Covid-19, have had a negative PCR or lateral flow test result within the last 48 hours, or have an exemption to enter large events and venues. This can be shown via the NHS Covid pass or a valid text or email confirmation from NHS Test and Trace. There are indications that the requirements may change at some point in the new year to replace the requirement for double vaccination with a requirement to also have received a booster jab.

Coming against the backdrop of regulations that came into force on 11 November 2021 requiring care home staff to be vaccinated, and new regulations providing likewise for frontline NHS and social care staff from 1 April 2022, the introduction of Covid-19 entry requirements in certain settings for members of the public has been met with divided opinions from Members of Parliament and other commentators. While there is no express prohibition on other businesses requiring similar evidence as part of their approach to providing a Covid-19 secure workplace, it remains the case that the NHS Covid pass is primarily intended for use in England by large-scale events and venues: employers wishing to put additional controls in place must continue to consider carefully the legal considerations and impact on the workforce more generally.

In Wales, an NHS pass is similarly available with guidance from the Welsh government stating that the pass can be used by employees to show their employer that they are fully vaccinated and are not required to self-isolate if identified as a contact; it does not go so far as to provide that the pass is intended for use by employers for routine entry to the workplace.

Key cases in 2021 – Part 2

In last week's Coffee Break we looked at three of the principal employment law judgments for employers in 2021. This week we look at a final three for employers to consider before we move into the new year.

Employees can transfer to more than one employer on an outsourcing

The Employment Appeal Tribunal (EAT) has held that in an outsourcing situation it is possible for the employment contract of a transferring employee to be split between transferees in proportion to the tasks performed by the employee. It is therefore possible for the employee to be employed under multiple contracts of employment by different employers following a transfer, as long as the work attributable to each contract is clearly designated.

Following this decision it will now be important to assess in an outsourcing situation, where more than one service provider is being assigned, whether it is possible to identity the activities that are transferring and whether they remain fundamentally the same, albeit split between service providers. Where it is possible to identify an organised grouping, it is now essential to identify at an early stage how employees are assigned to the services transferring and therefore whether they will transfer to just one or more than one incoming service provider. Businesses entering into outsourcing arrangements will now need to factor in the additional possibility of employees transferring to multiple transferees and negotiate indemnities accordingly.

Menopausal symptoms could amount to a disability

The EAT looked at a case considering whether or not an individual's menopausal symptoms could satisfy the definition for a disability under the Equality Act (bringing with it the duty on an employer to make reasonable adjustments, as well as a duty not to unlawfully discriminate) and whether the alleged treatment of an individual with such symptoms (for example, where an individual feels that they are not being taken seriously or treated sensitively) constitutes unlawful discrimination and harassment. Here the EAT found that the original Employment Tribunal (ET) showed a lack of reasoning in deciding that the claimant was not disabled as a result of her symptoms and remitted the case back to a new ET for consideration. Determination of whether menopausal symptoms meet the definition for a disability under the Equality Act will require careful factual analysis. Employers should look at what training and guidance is required to help line managers understand how the symptoms of the menopause might impact on an employee's performance, wellbeing and other aspects of the their work life, such as time-keeping and the need to work from home. Each situation should be approached sensitively and the possibility of reasonable adjustments should be considered: this might be an appropriate course of action even in situations where symptoms may not amount to a disability, but are nonetheless impacting on an employee's work life.

Direct pay offers to employees during collective bargaining are unlawful

The Supreme Court handed down an important decision for employers who recognise a trade union for collective bargaining purposes, ruling that employers cannot make direct pay offers to union members, while a collective bargaining process is still ongoing; such payments will be unlawful inducements.

In this instance, the employer, having reached an impasse with the trade union over pay negotiations, wrote directly to the employees seeking their acceptance to its pay offer and warning that failure to agree would have a number of negative consequences. The Supreme Court made clear that a direct approach can only be made once the collective bargaining process has been followed and concluded. Employers can make direct pay offers once the collective bargaining process has been exhausted, but will need to have clear evidence that the process is not ongoing, should this be challenged by the trade union in any subsequent Employment Tribunal proceedings.

Disability workforce reporting: government publishes new consultation

The government has published today (16 December) a consultation looking at workforce reporting on disability – both voluntary and mandatory – for large employers (250 employees and above). This follows on from the National Disability Strategy published in July 2021 which sets how the government will work towards creating a society that is fully inclusive for disabled people; the government states that the consultation is "an important step in ensuring we have the best evidence to inform our approach as we seek to ensure inclusive workplaces, increase opportunities for disabled people and tackle the disability employment gap". There is currently a voluntary reporting framework which provides support to employers to voluntarily report information on disability, mental health and wellbeing in the workplace.

The consultation seeks to understand what information is currently collected by employers on disability in the workforce, the impact to business and the behaviours it causes, including whether an organisation currently collects information on the proportion of disabled people in their workforce. The consultation will close on 25 March 2022.

Green jobs and green HR

Finally for 2021, for those of you who were unable to join us at our recent "Green jobs and Green HR" webinar, please find here a recording of the webinar. With decarbonisation increasingly influencing business agendas and concerns over greenwashing, HR will have a key role to play in ensuring that employers can continue to attract and retain the very best individuals with the right skills to meet business needs and commitments, as well as supporting green initiatives through employment terms, the provision of benefits, staff policies and workforce engagement initiatives. We will be looking at these issues in more detail in 2022.