Employment Law Coffee Break | What's on the agenda in 2022, Covid-19 update and raising retirement

What's on the agenda for 2022

Issues high on the agenda for employers in 2022 include hybrid working, diversity and inclusion, and employee health and well-being. However, in this period of accelerated change, employers will also be pivotal in supporting businesses meeting the need for greater digitalisation, hitting decarbonisation targets and ensuring employees have the right skills for emerging jobs. Securing the right talent will require many employers to revisit where employees work from and on what terms. We explore these issues in our latest guide looking at key dates and actions for employers as they face the challenges of 2022.

We enter 2022 waiting on the outcome of a number of significant consultations and calls for evidence, including proposals to reform non-competition covenants in employment contracts and updating the statutory right to request flexible working. 

Covid-19 update

England remains under "Plan B" with the prime minister, Boris Johnson, confirming that the current measures will now remain in place until 26 January and that "people in England should carry on working from home whenever they can" in line with current guidance. A further review will take place in the run up to 26 January. Different rules apply to those living in Scotland, Wales and Northern Ireland. Across all nations, international travel rules should continue to be checked carefully (both in the country of origin and the destination) given the evolving situation which means that requirements can be subject to rapid change; the latest international travel rules for England are here.

In England, the government remains keen to avoid imposing another lockdown to manage the impact of the Omicron variant and instead has opted to introduce other changes to support Plan B including:

• Testing: With concerns over availability of lateral flow tests (which currently still remain available for the public to order), the government has announced that from this week (10 January) critical workers, which "includes those who work on critical national infrastructure, national security transport and food distribution and processing", will be provided with free lateral flow tests for every working day to help keep essential services running.

  Further, from Tuesday 11 January, as a temporary measure, the need to take a PCR test to confirm the result of a positive lateral flow test is suspended in most cases: instead, guidance provides that a positive lateral flow test result should be recorded on gov.uk and an individual should begin self-isolating immediately. Guidance sets out specific cases where a follow-up PCR test is still required, including if an individual wishes to claim a test and trace support payment or they have a positive day two lateral flow test after arriving in England. The guidance also provides that if an individual has any of the following symptoms: a new continuous cough; a high temperature; or loss of, or change in, normal sense of taste or smell (anosmia) - even if mild - then they should stay at home and arrange to have a PCR test.

• Self-isolation: Individuals testing positive for Covid-19 can now self-isolate for seven days (rather than 10 days) provided they produce a negative lateral flow test on days six and seven of their self-isolation period and do not have a high temperature. Where self-isolation ends after seven days, individuals are strongly advised to limit close contact with other people in crowded or poorly ventilated spaces, work from home, and minimise contact with vulnerable people. It remains the case that individuals who are fully vaccinated (have received two Covid-19 vaccinations), who are under 18, or who are medically exempt are not legally required to self-isolate if they are notified as being a "close contact" of someone testing positive for Covid-19 although they are "strongly advised" to take lateral flow tests for seven days from notification (and must self-isolate immediately if they develop symptoms); all other individuals who are close contacts of a positive Covid-19 case must still self-isolate for the full ten days.
• Statutory sick pay: To support GPs in maximising the vaccine booster programme, regulations have been introduced providing that employees are allowed to self-certify sickness for up to 28 days starting from 17 December 2021 (including employees who are already off sick, provided this started on or after 10 December 2021) up to 26 January 2022 when these temporary arrangements will come to an end. Updated guidance on fit notes suggests that doctors are not under an obligation to provide a fit note before the 28 day period. This could cause practical problems where employers require evidence sooner, for example under a company sick pay scheme, and a GP is not willing to provide a fit note. Employers may need to exercise their discretion in such cases (taking care to do so consistently) or potentially require an employee to obtain a private fit note. The three day waiting period for statutory sick pay continues to be suspended for Covid-19 related absences and at present is set to be reinstated from 25 March 2022.

  The government has also made regulations to re-introduce the statutory sick pay rebate scheme allowing employers with fewer than 250 employees (as at 30 November 2021) to recover up to two weeks' statutory sick pay for each employee who is off work due to Covid-19 including those in self-isolation, on or after 21 December 2021. The scheme will end on 24 March 2022 and claims must be submitted by that date.

The on-going importance of complying with statutory health and safety obligations, together with relevant government guidance, is emphasised by the publication of the Health and Safety Executive's injury and statistics for 2021. These indicate that the rates of work-related ill health have increased, with Covid-19 posing a new threat to employers' liability over the last reporting year, including being a major contributory factor to work-related stress, depression or anxiety. Read more from Matthew Vernon, associate in our specialist health and safety team.

Is a fear of catching Covid-19 a protected belief?

The Employment Tribunal has held that an employee's "fear of catching Covid-19 and a need to protect myself and others" did not amount to a protected belief under the Equality Act 2010. Case law has established that to be protected a belief: must be genuinely held; it must not simply be an opinion or view point based on the present state of information available; it must relate to a weighty and substantial aspect of human life and behaviour; it must attain a certain level of cogency, seriousness, cohesion and importance; and it must be worthy of respect in a democratic society and not incompatible with human dignity or conflict with the fundamental rights of others.

While recognising that the claimant's belief regarding Covid-19 satisfied a number of the above criteria, it could not be a protected belief as it was simply "a reaction to a threat of physical harm and the need to take steps to avoid or reduce that threat" and reflected "a widely held opinion based on the present state of information available that taking certain steps, for example attending a crowded place during the height of the current pandemic, would increase the risk of contracting Covid-19 and may therefore be dangerous". Further the claimant's fears related to protecting herself and principally her partner; she did not rely on a belief "in wider terms".

While only a tribunal decision, this case is helpful for businesses where individuals are reluctant to return to the workplace (in line with the applicable government guidance). However, it remains important for employers to ensure that all appropriate health and safety measures are in place to protect staff to minimise the risk of legal claims; the claimant here also claimed that the workplace posed a serious and imminent danger to her and others under section 100(1)(d) Employment Rights Act 1996. Any concerns raised should be dealt with sensitively and appropriately, with care taken to ensure that an individual is not discriminated against.

Raising retirement with employee with dementia

A recent case before the Employment Tribunal (ET) has emphasised the legal risks associated with employers raising the option of retirement with employees; in this particular case with an older worker with dementia. The former supermarket employee was successful in her claims for constructive unfair dismissal, age and disability-related harassment, direct age discrimination and discrimination arising from disability after it was found that managers had enquired on a number of occasions as to whether she wanted to retire. This had the effect of making the claimant feel as though she was being pushed out of the business, or that her employer felt that she was too old to be there. The ET determined that the comments on retirement would not have been raised with an employee who was not of retirement age in similar circumstances, presenting the same medical symptoms and therefore "that the repeated mention of retirement to the claimant as a possible option was direct age discrimination" and "on the basis that this was mentioned on more than one occasion we also find that it amounted to age-related harassment. It was unwanted conduct which violated the claimant’s dignity. It was reasonable for her to feel upset at the respondent having mentioned this as it created an environment where it made her feel unwanted. It was reasonable for her to have this impression in the circumstances."

Also of note was the ET's findings that the employer ought reasonably to have known that the claimant was disabled. Armed with the knowledge that she was forgetting things, getting confused and needing greater assistance to carry out her role, the employer was on notice that the claimant had symptoms of a mental impairment and, at the very least, should have investigated her symptoms via a referral to occupational health prior to her return to work from lockdown. Well-intentioned attempts to assist the claimant find her keys in her bag had left the claimant feeling upset and constituted disability-related harassment as “there may have been a way of assisting the claimant which preserved her dignity, asking her what she wanted them to do”.

With increasing numbers of older employees in the workplace, employers need to act sensitively towards employees showing symptoms of ill-health and seek appropriate assistance from occupational health or an appropriate medical specialist once a problem becomes apparent. Employer-led conversations about retirement should be avoided, as such discussions are likely to amount to direct age discrimination as well as age-related harassment and disability discrimination where the conversation is prompted by a backdrop of ill-health.