Employment Law Coffee Break: Self-isolation in the spotlight, hybrid working and immigration, and a new duty on employers to prevent workplace sexual harassment

Covid-19 and self-isolation

This week has seen increasing confusion over when individuals should self-isolate; despite the lifting of restrictions. With media reports of a "pingdemic" as increasing numbers of people are notified that they have been in contact with infected people and employers suffer staff shortages, Covid-19 continues to significantly disrupt business operations with some even being forced to temporarily close. Concerns have also been raised over the potential for abuse by those looking to stay away from the workplace, particularly where employers have adopted a policy of allowing employees to take periods of self-isolation on full pay or company sick pay.

The requirement to self-isolate for those who have been double jabbed for at least 14 days is expected to fall away from the 16 August (Kwasi Kwarteng, the business secretary, has been reported in the media as stating that the information will be reviewed and a decision made a week before that date); these individuals will instead be advised to take a PCR test and only be required to self-isolate where the result is positive. However, with many still waiting to complete their vaccinations, employers must understand the current legal requirements and latest guidance to ensure that they do not inadvertently expose themselves to potential fines and legal liability.

• Employees are legally required to notify their employer and self-isolate where they receive a notification to do so via the NHS Test and Trace service. There are some specific exemptions to this general rule for those providing critical services (see below) and NHS and social care staff - employers will need to understand whether an individual is exempt and the different rules which apply in each of these cases. Employers must not require or encourage someone who is legally required to self-isolate to attend the workplace; to do so exposes the employer to a fine, as well as liability under the Health and Safety at Work Act 1974 for failing to provide a safe place of work.
• Employees are not legally required to notify their employer or self-isolate where they receive a notification that they are a contact via the NHS Covid-19 app. However, government guidance states that "if a worker has received a notification to self-isolate via the NHS Covid-19 app, they should not attend the workplace as the individual may be infectious and could spread the virus". In light of an employer's statutory duty to provide a safe place of work, a policy setting out clearly expectations on employees to inform their employer of any notification via the app and the steps they are required to take (such as continued self-isolation at home) will be helpful in this regard.
• While employers may be tempted to require employees to attend the workplace where their only reason for isolation is notification of a contact via the Covid-19 app, the government has stressed that it is "crucial" for individuals to self-isolate and businesses should help employees to do so. Where businesses do consider that they need to bring these staff back into the workplace, consultation should be carried out with health and safety representatives and the Covid-19 risk assessment updated accordingly to ensure sufficient measures are in place to minimise any identified risks. Care must also be taken to consider individual concerns; employers risk employment law claims, for example, where an employee resigns in response to an unreasonable requirement to attend the workplace which breaches the implied term of trust and confidence or where an employee is dismissed or suffers a detriment as a result of a reasonable belief that they or others are in serious or imminent danger. Employers should also be alert to disability discrimination and whistleblowing claims.
• Employers would be sensible to review and update their policies on any evidence required where an employee informs them that they are required to self-isolate, as well as setting out clearly what pay the employee will be entitled to during that period. Employees may qualify for statutory sick pay and low income workers may be entitled from their local authority to a one-off Track and Trace payment of £500. To avoid any reduction in pay, some employers are permitting employees to cover a period of self-isolation by taking their annual leave on short notice. Employers should consider setting out clear guidelines for managers to ensure compliance with the employer's own health and safety guidelines and a consistency with approach.

Critical services

The government has updated the Test and Trace workplace guidance to provide further information on the self-isolation exemption for those notified as a contact of a positive Covid-19 case but who are providing critical services. Employers who believe that self-isolation of certain key employees as contacts would result in serious disruption to critical services are instructed to contact the relevant government department providing the specific information; whether an individual meets the critical service criteria "will be made rapidly on a case-by-case basis and kept under review". Before relying on the exemption, the employee concerned must be specifically named on a letter from a government department confirming they are in scope.

NHS Covid Pass

The NHS Covid Pass is gaining increasing attention with the decision this week to make double vaccination (which is evidenced on the pass) a condition of entry to nightclubs from September 2021. For many employers, requiring employees or other visitors to demonstrate their Covid-19 status via the pass is unlikely to be required as continued social distancing and regular cleaning will be sufficient to control the risk and the government has not to date encouraged use of the pass in settings which are not classed as "higher risk". However, with potential changes to the self-isolation rules on 16 August 2021 and specific requirements around international travel the pass may take on a more prominent status. Any proposals to rely on the pass in the workplace setting will require specific consideration of the health and safety, employment law, discrimination and data protection issues this raises. This week the ICO has published guidance on the use of the Covid Pass at business premises.

As evidenced by the government's announcements this week, this is a developing area. Combined with the requirement in the new working safely guidance for employers to notify the relevant local authority of all positive cases in the workplace, employers must ensure they keep on top of the latest government guidance and have clear internal processes in place as they enter this next phase of managing the impact of Covid-19 on the workplace.

Hybrid working and immigration

Olivia Sinfield, partner in our Employment team, speaks to Adam Sinfield in our immigration team in our latest future of work podcast looking at the legal and practical aspects of hybrid working including:

• Is a "working from anywhere" model advisable?
• Is it possible for companies to adopt a cross border and hybrid working model?
• What has been the impact and challenges of Brexit on immigration regimes?
• Can you really work in another country for up to 90 days?
• What are the risks and pitfalls when considering flexible working policies?

Listen now >

Horizon scanning and a new legal duty to prevent workplace sexual harassment

The government has this week published its response to a consultation on sexual harassment in the workplace (which closed in 2019). It has confirmed that it will:

• introduce a duty on employers to prevent sexual harassment (it is anticipated this will require employers to take "all reasonable steps" to prevent harassment and for an incident to have taken place before an individual can make a claim, but is subject to further engagement with stakeholders during the legislative process). It is believed this "will encourage employers into taking positive proactive steps to make the workplace safer for everyone";
• support the EHRC in developing a statutory code of practice for employers to complement the technical guidance published by the EHRC in January 2020. New "accessible" guidance for employers will also be introduced;
• introduce "explicit" provisions protecting against third party harassment; the government has committed to continue to work with stakeholders to shape this new statutory protection;
• consider extending the time limit for claims under the Equality Act 2010 from three to six months but subject to continued engagement with stakeholders to understand better the impact of an extended period and ensuring that any new limit is compatible with the realities of the tribunal process.

The government has rejected calls for the reinstatement of the power for Employment Tribunals to make wider recommendations on employers as a sanction in discrimination claims, finding that employers will often make changes to policies and practices as a result of an Employment Tribunal decision anyway and will tailor them to their organisation. As such, employers are more likely to be committed to the changes and see positive results.

The consultation response expressly alludes to the changing workplace and intends "these steps will ensure that whatever it looks like, people feel safe and supported to thrive" and that "as people start to return to offices and other workplaces we must be clear that 'building back better' extends to every corner of our lives". However, employers should not anticipate change imminently with it clear that more work needs to be done before legislation is drafted; indeed any changes will be introduced only "as soon as parliamentary time allows".

Other developments in the pipeline

You can read about the latest employment issues and future developments impacting employers in the pipeline in Osborne Clarke's latest Regulatory Outlook.