UK government plans to revamp holiday pay calculation for part-year workers
Out-Law Guide | 05 Apr 2022 | 2:18 pm | 10 min. read
With health policy primarily devolved in the UK, a complex web of public health measures has emerged, with distinct approaches for England, Scotland, Wales and Northern Ireland being adopted. Ireland too has its own specific rules affecting hospitality businesses.
All legal restrictions imposed in England in response to the Covid-19 pandemic were lifted on 19 July 2021. This allowed indoor and outdoor events and venues, including nightclubs, to re-open and operate without restriction on the numbers attending or social distancing.
However, hospitality businesses do have a legal duty to manage risks to those affected by their business. This includes the risk of Covid-19. Businesses must take reasonable steps to mitigate such risks.
The Working Safety guidance outlines examples of mitigations which employers should consider, these include cleaning surfaces that are touched frequently, providing hand sanitiser for customers and staff and improving the air flow in poorly ventilated areas.
Although not a legal requirement, venues are encouraged to continue displaying QR codes for those customers who want to check in using the NHS Covid-19 app to support NHS Track and Trace.
The UK government announced on 19 July that its intention was to make vaccination a condition of entry to nightclubs and other large venues from the end of September 2021. However, the government subsequently stepped back from introducing so-called ‘vaccine passports’ after considering the take-up of vaccination, considering it unnecessary to follow through with its plans.
The emergence of the new Covid-19 variant, Omicron, spurred the government to announce new restrictions on Tuesday 30 November, which it described as temporary and precautionary measures. Most relevant to the hospitality and leisure sectors was the reintroduction of the legal requirement to wear a face covering on public transport, in shops, banks, post offices and hairdressers.
The Covid-19 restrictions were subsequently updated again as a result of the growing number of cases of the Omicron variant. On Wednesday 8 December the government announced that their ‘Plan B’ strategy would be implemented in England. Additionally, as of Friday 10 December, the compulsory use of face coverings was extended to the majority of public indoor venues, namely cinemas, theatres and places of worship.
As a result of a reduction in the number of Covid-19 cases contracted, the Prime Minister announced on 19 January 2022 that restrictions will once again will be relaxed and the Plan B restrictions will be removed. The Health Secretary Sajid Javid explained that that the Omicron variant is “in retreat”. Amongst the changes, the working from home guidance was revoked with immediate effect. The compulsory wearing of face masks was removed across all venues and settings as of Thursday 27 January. Additionally, from 27 January, Covid passes, which evidence proof of two vaccine doses, are no longer compulsory at large events. It is the venues’ decision as to whether it wishes to continue to use Covid passes or not. However, from 1 April, the government will no longer recommend that venues use the NHS Covid Pass.
As of Thursday 24 February, the legal restrictions implemented in England to combat the Covid-19 pandemic were removed in their entirety. The prime minister has said that it is down to “our hugely successful vaccination programme,” that has resulted in an immunity build up in the population” that “the UK is in the strongest possible position to…end government regulation." From 24 February, there is no longer a legal requirement to self-isolate following a positive Covid-19 test result. Nevertheless, the government still advises that people avoid contact with others for at least five full days.
The first minister announced on 22 February 2022 that a significant easing of the restrictions will begin to take effect shortly. This announcement coincided with the publication of Scotland’s updated Strategic Framework document.
The first key change to the restrictions will take effect from 28 February 2022, when the covid certification scheme will cease to be a legal requirement. It is currently estimated that all other remaining legal restrictions will be removed from 21 March 2022.
Regulations introducing required checks for vaccine certification at some hospitality venues were first introduced in Scotland on 1 October 2021. Though a series of exemptions apply, those restrictions apply generally to “late night premises” which means any premises at which alcohol is served at any time between 0000 hours and 0500 hours; there is a dancefloor, or other designated space, provided for dancing by customers, and; live or recorded music for dancing is played. Since 6 December 2021 onwards, it has been possible for individuals to access venues or events by showing a qualifying negative lateral flow or PCR test instead of their vaccine certificate. The regulations were updated to reflect this change.
The regulations also impacted on large outdoor events – such as rugby or football matches where more than 10,000 people are expected to attend – as well as other outdoor events where 4,000 or more people will attend and not all will be seated. In addition, the requirement also applied to events taking place mainly indoors where 500 or more people will attend and not all will be seated.
Although the scheme will cease to be a legal requirement from 28 February 2022, the app will remain available after this date to support any business wishing to implement a voluntary scheme. Should any business wish to implement a voluntary scheme, it would be recommended to obtain legal advice before doing so given the potential, for example, for any privacy and data protection issues. On 25 February, the Information Commissioner’s Office (ICO) issued a reprimand to the Scottish government due to its failure to provide adequate information about the app’s use of data to users.
All remaining base line measures excluding the legal requirement to wear face coverings in certain settings were removed on 21 March 2022. These included businesses being legally required to have regard to relevant guidance, and hospitality settings being required to collect contact details for the Test & Protect scheme.
The legal requirement to wear a face covering in certain indoor public places will be phased out from Monday 4 April when they will no longer be required in places of worship and while attending marriage and funeral services. The legal requirement to wear a face covering in shops, hospitality premises and on public transport is expected to be lifted from Monday 18 April. Legal requirements will transition into guidance and good practice.
It is also noted that from around Spring 2022, changes to Test & Protect are expected with a general move away from mass asymptomatic testing towards more sustainable targeted testing.
As things currently stand, and subject to parliamentary approval, the regulations which introduced the Covid certification scheme (and also provide for various other measures) which were due to expire on 28 February 2022 have been extended to 24 September 2022. That being said, the regulations remain subject to three-weekly review by ministers and there is statutory requirement to revoke any requirements “as soon as the Scottish Ministers consider that any requirement set out in these Regulations is no longer necessary to prevent, protect against, control or provide a public health response to the incidence or spread of infection in Scotland with coronavirus”.
More generally, the Strategic Framework document sets out the government’s intention to rely on vaccinations and treatments in managing Covid in future, as opposed to legally imposed restrictions. However, the document does set out fixed thresholds and triggers for action in the event that future transmissible variants emerge, e.g. the potential closure of non-essential settings and limits on gatherings if a ‘high’ is detected or the reimposition of a legal requirement for face coverings if a ‘medium’ is identified.
In response to the surge in Omicron cases, tougher Covid restrictions were introduced in Wales over the festive period. These included the return of the two metre social distancing rule, nightclubs closing their doors once again, a legal requirement to work from home, the 'rule of six' re-introduced and substantial limitations placed on the number of people who could attend indoor and outdoor events.
However, the Welsh first minister Mark Drakeford later announced that these alert level two restrictions would gradually be removed, after the latest data suggested that cases of coronavirus are falling. He also announced that two-thirds of people aged 12 and over have now received a booster or third dose of the Covid-19 vaccine. Consequently, as of 17 January 2022, the number of people who can attend outdoor events increased from 50 to 500. The 500 person limit does not include those participating in a team sport, meaning that 500 spectators can attend a sporting event.
From Friday 21 January all outdoor activities were restored to alert level zero, which removed all limits on those who can take part in outdoor activities and means that the number of spectators at outdoor sporting events is once again unrestricted. Additionally, outdoor hospitality can operate without additional reasonable measures. Most significantly the 'rule of six' was removed and there was longer a requirement to deliver table service.
Since the data continued to show a downward trend in cases, from Friday 28 January Wales moved to alert level zero for all indoor activities and premises. This change brought significant changes in restrictions notably:
Although working from home guidance is no longer a legal requirement, the Welsh government continue to recognise the importance of working from home where possible.
The Welsh government has implemented ‘action cards’ which provide advice to hospitality businesses on reasonable measures to take to minimise the risk of coronavirus transmission at their venues. The guidance supplements rather than replaces Welsh regulations. Hospitality venues are required to take reasonable measures to minimise the risk of exposure and spreading coronavirus. These businesses must carry out an assessment as to the risk posed by coronavirus at their premises. The assessment should form the basis of deciding what measures should be implemented.
The purpose of the Covid Pass in Wales is to prove that someone has either been fully vaccinated or that they have tested negative for coronavirus from a lateral flow test taken 48 hours before attending an event or venue. There was significant backlash to the implementation of NHS Covid passes in Wales, similar to that in Scotland. From 18 February, it is no longer mandatory for people over 18 years of age to show the NHS Covid Pass to attend nightclubs, large indoor or outdoor events, entertainment, theatres, cinemas or concert halls. Venues can choose whether they would still like to use the Covid Pass as part of their coronavirus risk assessment and reasonable measures.
From 28 February, the law requiring face coverings in most public places will be relaxed. However, face coverings will still be required in shops, public transport, hairdressers, salons and health and social care. If the statistics continue to improve all other face covering rules could be lifted by the end of March.
A further review of the current regulations took place on 3 March. The remaining restrictions remain in place until the next review period, which is due to take place on 24 March. Should the public health situation remain stable, the Welsh government anticipates that all remaining restrictions will be lifted on 28 March.
The NI Executive announced on 20 January 2022 that from noon on 26 January 2022 there will no longer be a legal requirement for vaccine passports in hospitality settings.
Health minister Robin Swann has further announced that from 17:00 on 15 February 2022 vaccine passports will no longer be required for nightclubs and indoor unseated and partially unseated events with 500 or more people.
Requirements for face coverings, track and trace and the cap on 30 people allowed in private homes have also been lifted and are now only considered guidance that employers and shops may recommend.
The recommendation to work from home where possible still stands as guidance but is not law.
On 21 January the Irish Government announced that as of 6am on 22 January 2022, the vast majority of Covid-19 restrictions would come to an end. Consequently, all restrictions previously in place surrounding hospitality, outdoor and indoor events, home visits and social distancing are no longer in force.
The announcement was welcomed by many industries, in particular the entertainment and hospitality industries, as there are no longer any restrictions regarding opening hours, crowd capacities or social distancing for venues such as bars, restaurants, nightclubs, stadia and other entertainment spaces. Such venues can now operate as they did pre-pandemic.
Employers are also allowed to begin bringing their employees back to the office on a phased basis from 24 January, however, no governmental guidance has yet been offered to employers in how best to manage the return to offices.
Some restrictions will remain in place until 28 February 2022, including the use of vaccination or recovery certificates for those embarking on international travel. After 28 February, the use of face coverings in retail settings, schools and on public transport will transition from mandatory to optional. However, face coverings will remain mandatory in healthcare settings beyond 28 February.
Those who exhibit symptoms of Covid-19 will still be required to adhere to current guidelines and self-isolate for seven days. Close contacts who do not have symptoms of Covid-19 and who have either received their booster vaccine more than seven days before their close contact notification or have tested positive, using PCR or antigen tests, for Covid-19 since 1 December 2021 do not have to self-isolate. All other close contacts must self-isolate for seven days.
Additional contributors: Deirdre Cormican; Kirsty Gallacher; Hannah Burton; Aisling Taggart; Lewis Cheyne; Alice Crighton; Hugh Gibbons; Con Berkery, all of Pinsent Masons.
17 Sep 2021
UK government plans to revamp holiday pay calculation for part-year workers