For many, we are into our sixteenth month of remote working. Some employees had brief interludes in the office in between lockdowns last year, during which COVID-19-secure measures (including temperature testing, one-way systems, socially distanced desks, copious amounts of hand sanitizer and all manner of other things) were trialled. We can now prepare for a more permanent return to the office for all (or at least the option of doing so) and UK employers need to be ready to manage this return.
On 12 July 2021, the UK Government published its ‘COVID-19 Response: Summer 2021 Guidance’, setting out the route it intends to take as it relaxes almost all of the COVID-19 restrictions that have been in place since March 2020. As we have now moved to Step 4, where all legal restrictions on social contact and social distancing have been lifted and the Government is no longer instructing employees to work from home, employers of office workers need to assess how they will facilitate a safe return to the physical office. Can they require staff to be tested on a regular basis? Should they mandate masks? What about the vaccine?
In addition, many employers will still be facing concerns about continued financial support. The Chancellor’s announcement in the Spring Budget 2021 that the Coronavirus Job Retention Scheme (or the ‘furlough scheme’) would remain in place across all sectors until 30 September 2021 was good news for businesses not expecting a quick bounce back to normal trading levels. In the final two sections of the FAQs we re-examine some commonly asked questions regarding use of the furlough scheme, employee absences and redundancies.
We note at the outset that certain aspects of this alert (including the timelines) are based on guidance from Public Health England. Accordingly, employers of employees in Scotland, Wales and Northern Ireland should consider local guidance alongside this note.
1. Do employers still have to carry out workplace risk assessments?
Yes. Despite the latest easing of restrictions, employers still have a legal duty to protect their employees’ health, safety and welfare while at work and this means accounting for COVID-19. Employers should, therefore, update their risk assessment to manage the risk of COVID-19 in their business before implementing a return to the workplace. Doing so will help employers to understand how they can protect their staff and maintain a safe working environment. Further guidance about what work activities or situations might cause transmission of the virus and how to remove or control the risk can be found here.
2. Do employers still need to have any social distancing measures in the office or require employees to wear masks?
Yes, if their risk assessment indicates they should. Once employers have completed a risk assessment, the Government guidance advises them to consider the different ways to reduce the risk of COVID-19 spreading in the workplace, and suggests ensuring that offices have adequate ventilation and reducing contact between people (e.g., by using screens and cleaning surfaces regularly). Although the Government-mandated requirement to wear a mask or face covering in England has been removed, guidance states that employers should consider encouraging the use of face coverings by workers in enclosed and crowded spaces.
3. Can an employer discipline or dismiss employees who refuse to wear a face covering or follow social distancing rules in the office?
This depends on a number of factors, including the type of work environment and the terms of workplace safety policies. Recently an employment tribunal held that it had been fair for a food manufacturer to dismiss one of its lorry drivers for refusing to wear a face mask while making a delivery to a client, despite repeated requests to do so and clear health and safety grounds for the mandated PPE policy. Legal advice should be sought prior to taking disciplinary action and the circumstances of the situation should be considered in detail. As part of the return to work planning, it would be advisable for employers to put clear policies in place outlining the COVID-19-safe measures employees will be required to follow, how employees can raise concerns or queries about these policies, any exemptions and the action that the employer might take in response to a breach of such policy.
4. Can an employer implement mandatory testing for COVID-19?
The Government’s guidance on COVID-19 testing for employers (available here) indicates a desire for “as many employers as possible to sign up to regularly test their employees”. Nevertheless, employers should continue to be aware of their legal obligations from both an employment and data privacy perspective when planning and implementing staff testing. Recording information about an employee’s health (whether the result of a lateral flow test or a simple temperature check) involves the processing of special category personal data, which means that there are rigorous requirements to be met for lawful processing. Employers will need to think carefully about whether the processing is necessary and proportionate, whether there are less intrusive ways of addressing health and safety concerns and whether a data protection impact assessment is required.
5. Can an employer disclose that an employee has tested positive for COVID-19 (or has related symptoms) to colleagues or external contacts?
Employers need to weigh up their duties to employees under health and safety law with their duty to protect the personal data of the reporting employee. An employer may conclude that it is necessary to inform employees or recent visitors to the workplace that someone who has been in the office or who they may have come into contact with has, or is suspected to have, COVID-19, in order that those individuals can take steps to protect themselves. However, unless there is a specific and compelling reason to disclose the employee’s name or any further details, this should be avoided.
6. Can employers record which workers have been vaccinated?
Yes, but as with testing data, collecting this information means processing special category personal data. The Information Commissioner’s Office (the “ICO”) considers vaccination status to be health information and therefore, an employer would need to be able to identify both a lawful basis and a special condition under UK data protection law to process the information. In addition, employers must put in place adequate safeguards and retention policies around this data, and evidence a need to record this information (for example, by reference to the nature of the employer’s business or specific health and safety risks in the workplace). Where collecting this information could present a risk to individuals (for example, through restricting their access to the workplace), the ICO recommends that a data protection impact assessment be carried out (guidance available here). Employers should also regularly review whether they still have grounds for the collection and retention of this personal data, particularly as the vaccination roll-out progresses and more people receive the vaccine.
7. Do vaccinated or unvaccinated workers still need to wear face coverings and socially distance under the Government guidance?
No. Vaccinated and unvaccinated workers are no longer under a legal requirement to wear face coverings or socially distance. However, the Government recommends that individuals should limit close contact with people they do not normally live with and wear face coverings in crowded areas. As discussed above, employers may require face coverings in the office. See Question 2 above for further information on the requirement for social distancing measures in the office.
8. Can an employer require an employee to be vaccinated for COVID-19?
This depends on the circumstances. Vaccines are currently compulsory in the UK for care home staff and others who come into care homes for work, unless they have a medical exemption. In the absence of any legal requirement to be vaccinated, employers need to consider whether their health and safety duties require them to mandate the vaccine either as a condition of continued employment or entry to the office. When considering a mandatory vaccination policy, employers should take into account why encouraging the vaccine is not sufficient and whether they need to make exceptions for employees with certain protected characteristics under discrimination laws (such as pregnant individuals or those with certain disabilities).
The Government has recently published guidance and an employer’s toolkit to assist employers with encouraging their workforce to get vaccinated (available here). For example, the Government recommends that employers consider giving employees breaks during the day or time off to get vaccinated and that employers review their sick leave policies to see if they discourage employees from getting vaccines. The new Acas advice on vaccinations (available here) suggests employers consider offering paid time off for vaccination appointments and full pay (rather than Statutory Sick Pay (“SSP”)) if staff are off sick because of vaccine side effects.
9. Must employers allow employees time off during working hours to receive a vaccination?
There is no general right in law for an employee to have time off for medical appointments, but employers have a legal obligation to provide a safe place of work and minimise risks for all employees. This could include enabling workers to take paid time off to get vaccinated.
10. Can we ask employees to demonstrate their COVID-19 status as they enter the workplace (e.g., using the NHS app)?
Employers may be able to ask employees to use the NHS COVID Pass as a means of demonstrating that the employee: (i) has had a recent negative PCR or lateral flow COVID-19 test result, (ii) has natural immunity, having had a positive PCR test in the last six months, or (iii) is fully vaccinated. The NHS COVID Pass has been used in large-scale events that have been used as trials recently, and the Government’s COVID-Status Certification Review states that while “essential settings” should not use certification as a barrier to entry, other businesses may use it at their own discretion, given that the NHS COVID Pass is now available to all adults. The NHS COVID Pass may be obtained through the NHS app or by a letter from the NHS.
The ICO states that, provided only a visual check of an individual’s COVID pass occurs and no records are stored by the employer, no processing of health data will occur (guidance available here). However, if any COVID-19 status data is stored by or on behalf of the employer, this will involve the processing of special category data and the considerations set out in Question 6 above should be taken into account before implementing this policy.
11. Does an employer have to grant leave to an employee who volunteers to assist the NHS with the vaccine roll-out?
Currently, no. The Coronavirus Act 2020 includes specific provisions to allow employees to take “emergency volunteering leave” in order to support the NHS or other organisations during this time; however, these provisions are not yet in force. In May 2020, the Government announced that a surge of trained volunteers had not been needed at that stage and as such these provisions were not yet required. If these provisions are brought into force, employees who wish to take such leave must obtain a certificate from an “appropriate authority”, such as the Secretary of State for Health and Social Care, a local authority or the NHS Commissioning Board, provide a copy of the certificate to their employer at least three working days before they wish to start the leave and take the leave in a block of two, three or four weeks (the relevant period must be stated in the certificate). Provided employees satisfy these requirements, they must be permitted to take the leave by their employer and must be allowed to return to their job at the end of the leave on no less favourable terms and conditions.
Employers are not obliged to pay salary to employees who are taking emergency volunteering leave, although employees are entitled to continue to benefit from all other terms and conditions of employment during this period. Employees who take emergency volunteering leave must not be subject to any detriment for having taken the leave, and dismissing an employee in these circumstances will be automatically unfair.
Furlough, Redundancy and Annual Leave
12. How does the Coronavirus Job Retention Scheme work and how will it be tapered?
By now, we are all familiar with the premise of the Coronavirus Job Retention Scheme (the “Scheme”): until 30 September 2021, employers who are unable to maintain their current workforce due to the impact of COVID-19 on their operations can furlough employees and apply for a grant that covers 80% of their wages for the time they spend on furlough. Employers must confirm to their employees in writing that they have been furloughed and employees must not work or provide any services to the subsidised employer during hours in which they are recorded as being on furlough.
Flexible furlough will continue as an option, meaning that employees can work part-time and receive a furlough grant for their unworked hours. There is no minimum furlough period, and so flexible furlough agreements can last any amount of time. Employees can also enter into a flexible furlough agreement more than once. This allows employers to bring employees back to work progressively as the economy reopens and businesses recover.
Employees will continue to receive 80% of their salary for hours not worked until the Scheme ends. However, the Government is starting to taper the grant, with the Government contributing 70% of wages for unworked hours (up to £2,187.50 a month) across this month and then 60% (up to £1,875 a month) for August and September.
The Government’s latest guidance on the Scheme, which was updated on 15 July 2021, can be found here.
13. Can employees be put on notice of redundancy while on furlough?
Yes, but employers will not receive a grant under the Scheme for this period. The Government guidance provides that employers cannot claim under the Scheme for any days on or after 1 December 2020 during which the furloughed employee is or was serving a contractual or statutory notice period for the employer. This includes those working under notice of redundancy or dismissal for any reason and those serving notice of retirement or resignation.
Note that employees’ rights with respect to redundancy consultation and (if applicable) their right to receive a redundancy payment remain the same while on furlough as at any other time. Periods of redundancy consultation are unlikely to be considered “work” and, accordingly, consultation can be undertaken while an employer is claiming under the Scheme. Employers cannot claim under the Scheme for any redundancy payments owed to a furloughed employee.
14. Can employers require employees to take some annual leave now to reduce the number of holiday requests when international travel becomes more of an option?
In most cases, yes. Unless an employee has a contractual right to the contrary, employers can require employees to take periods of annual leave at specific times. To exercise this right, the employer must give at least twice the amount of notice as the length of the period of leave that the employee is being required to take – so, for example, 10 days’ notice for five days’ leave.
It is also worth noting that employers are not required to agree to an employee’s request to cancel pre-approved annual leave, other than in circumstances where the employee has a contractual right to do so or is unable to take the leave due to sickness.
International holidays for UK residents have resumed from 17 May 2021. Practically speaking, employers keen to avoid a build-up of holiday requests later in the year would be advised to write to employees now to ask them to plan to take a certain portion of their holiday allowance by a particular date.
15. Are the rules around annual leave different if an employee has been placed on furlough leave?
No. Employees continue to accrue annual leave whilst on furlough and employees who are entitled under their contract to take normal UK bank holidays as holiday will continue to have that right during furlough, unless they agree differently with their employer.
Employees can take holiday whilst on furlough. If they are flexibly furloughed, then any hours taken as holiday during the claim period should be counted as furloughed hours rather than working hours. However, the Government guidance makes clear that employers should not put their employees on furlough for a period just because they are on paid leave.
Employees must be paid their “normal remuneration” (calculated based on their pre-furlough pay) for any period of annual leave and, accordingly, employers will need to “top-up” pay for any period of annual leave above the amounts paid out under the Scheme.
16. How does furlough leave interact with sick pay?
Furloughed employees continue to enjoy their statutory rights, including their right to SSP. This means that furloughed employees who become ill or injured must be paid at least SSP (currently set at a rate of £96.35 per week for up to 28 weeks).
If an employee falls ill during furlough, there is no obligation on the employer to end the period of furlough and move the employee onto SSP. The HMRC guidance (available here) says that it is up to employers to decide if they will move these employees onto SSP or to keep them on furlough. An employee cannot be on SSP and furlough simultaneously. If a furloughed employee who becomes sick is moved onto SSP, the employer can no longer claim for the furloughed salary.
17. How much do employers have to pay employees who are self-isolating?
This will depend on the reason for the period of self-isolation. Where employees are self-isolating because they have been in contact with someone who has tested positive for COVID-19 or is symptomatic, or they have been advised to self-isolate/shield by the NHS or public health authorities, this is deemed as “incapacity” and they will be entitled to at least SSP. However, SSP is not available where an employee is self-isolating and unable to work on entry/return to the UK (as a result of ongoing restrictions related to travel), absent any other qualifying reason. While most legal COVID-19 restrictions have now been lifted, it is still a requirement for an individual who has either tested positive for COVID-19 or come into contact with someone who has tested positive to self-isolate. It is envisaged that the requirement for fully vaccinated people to self-isolate when they come into contact with someone who has tested positive will be removed on 16 August.
If an employee is self-isolating but still able to work from home, they will be entitled to their normal pay. Further details regarding the changes to the rules around SSP can be found here.
18. Can an employer request evidence of a positive COVID-19 test result before agreeing to pay enhanced sick pay?
Yes, but it is advisable to seek legal advice before implementing this type of policy. Some employers have put in place policies pursuant to which employees who are unable to work as they have COVID-19 are entitled to enhanced sick pay and, as we now know that it is possible to contract COVID-19 multiple times, proof may be requested on each occasion. This presents issues on a number of fronts: employees may not have access to a free COVID-19 test (if, for example, they cannot travel to a test centre), the cost of private tests can be prohibitive and there are concerns over the accuracy of home test kits. In addition, tax implications could arise if an employer were to offer to cover the cost of privately sought tests and the collection of this information would give rise to data protection concerns, as described above.
Georgia-Louise Kinsella and Dan Alam, trainee solicitors in the London office, assisted in the preparation of this article.