Out-Law Guide | 28 Sep 2020 | 9:54 am | 6 min. read
The change in guidelines and introduction of fresh regulations by the UK government and devolved administrations requires employers, among other things, to review and potentially rethink:
One of the major changes arising from the new guidance in England is the reversal of messaging about working from home.
While remote working by employees was already a feature of many organisations' operations prior to the Covid-19 pandemic, the spread of the virus and resultant lockdown measures announced in March led many employers to depend almost entirely and at short notice on remote working arrangements for continuing business activities.
With signs the virus was waning during the summer months, the UK government began encouraging employees to return to business premises. In response, some workforces had started to make their way back to the workplace, generally on a tentative part-time basis.
With the publication of the new guidance comes a change in emphasis, however: "To help contain the virus, office workers who can work effectively from home should do so over the winter. Where an employer, in consultation with their employee, judges an employee can carry out their normal duties from home they should do so."
Employers must consider the point about whether employees can work 'effectively' from home, effectiveness taking account of issues such as colleagues who don't have adequate internet access; those who flat share, or have inadequate space to work; those who live alone and would otherwise feel isolated or anxious, and the mental health and wellbeing aspects of that. Some employers will need to adjust their own approach in light of the new guidance and communicate any change in policy to staff.
Where work can’t be performed effectively from home, employees should continue to attend their place of work.
Remote working raises a number of health and safety issues that require employers' attention. However, there are issues going beyond the sphere of health and safety law compliance that employers must also address, including how they manage employee morale and wellbeing in respect of the shift back to remote working, particularly over the dark winter months in the UK.
A change in the location that individuals work from has the potential to undermine sponsorship arrangements for non-UK employees. Employers should seek guidance from corporate immigration specialists for queries on this topic.
The government has said that "extra consideration should be given to those people at higher risk", likely to be a reference to those who were previously shielding or vulnerable. These people will not currently be asked to restart shielding, but the government is again relying on a ‘common sense’ approach. While employers would most likely welcome further clarity around this from government, that is unlikely to be forthcoming. Our experience has been that employers have been dealing with employees on an individual basis, which is what we would recommend. Our guidance on managing shielding UK employees' return to workcontinues to be relevant.
Existing guidance designed to help employers make their workplaces 'Covid-secure' has been updated as part of the 22 September announcements.
The 14 guides the UK government has produced to working safely during coronavirus address each address different workplace environments, with further guidance available for employers from the devolved administrations in Scotland, Wales and Northern Ireland. There is also Health and Safety Executive guidance which provides more general advice, but that is nonetheless useful and should be considered alongside the government guidance.
What is new is that, from 28 September 2020, the scope of services covered by the UK government's Covid-secure arrangements will be widened – in leisure and entertainment venues, services provided in community centres, and close contact services. Employers face fines of up to £10,000 for repeated breaches of Covid-secure arrangements.
Also from 28 September, businesses will be required to remind people to wear face coverings where this is a requirement – and this will include their staff in relevant settings.
Employers should prepare for the potential scenario where one or more staff members refuse to wear a face covering. It may be a matter for a disciplinary process if reasonable instructions are disregarded, but guidance will be required for managers to help them manage this situation, including reminding them of how to approach employees who have a valid reason for not wearing a face covering – the duty of employers under the Equality Act, to make reasonable adjustments for an employee who is disabled, will extend in certain cases to allowing staff not to wear a face covering. Guidance on how to manage this situation with customers and contacts should also be provided.
The new guidance on face coverings is underpinned by amendments to regulations on face coverings that came into force on 24 September.
The amendments require staff working in indoor public areas to wear a face covering where they come or are likely to come into contact with members of the public. The regulations make clear what areas these apply to, but they include, for example, theatres, bars and pubs.
Penalties, starting at £200, apply to the individual not wearing the face covering, rather than their employer. However, employers will want to ensure that they adhere to the Covid-secure guidance which in turn refers to the government's own guidance on when to wear face coverings.
According to that guidance, businesses should "… check sector specific guidance to see if [face covering requirements] applies to you. Businesses are also subject to legal obligations to protect their staff under existing legislation. This includes taking appropriate steps to provide a safe working environment, which may include providing face coverings where appropriate, alongside other mitigation such as Perspex screens to separate workers from the public… For other indoor settings, employers should assess the use of face coverings on a case by case basis depending on the workplace environment, other appropriate mitigations they have put in place and whether reasonable exemptions apply."
A further change, again effective from 28 September,, puts the onus on employers to prevent workers and agency workers who should be self-isolating from coming in to the workplace. Self-isolation is required following notification by the NHS Test and Trace service, Public Health England and others but not following a notification from the Covid-19 NHS smartphone app.
Employers are prohibited from knowingly requiring or encouraging someone who is being required to self-isolate to come to the workplace. Workers can still work from their place of self-isolation if that is an option.
Regulations were published on Sunday 27 September and came into force at midnight in England. Those regulations are set to police both the individual and employer obligations around self-isolation. Employers should take note of regulation 7, which sets out that "…where the employer of a self-isolating worker or a self- isolating agency worker is aware of the requirement to self-isolate, the employer must not knowingly allow the worker or self-isolating agency worker to attend any place other than the designated place, during an isolation period, for any purpose related to the worker’s or self- isolating agency worker’s employment…"
Breach of this provision is an offence with fines starting at £1,000 for first offence, £2,000 for the second, £4,000 for the third and £10,000 for the fourth and subsequent offences.
It is prudent for employers to refresh messaging around this point and share that with line managers – they are likely to be the people taking an initial call from their team members. Employers should also reinforce the message that workers are required to notify them if they need to self-isolate. The regulations also specify this as a requirement for workers – that they should notify their employer as soon as reasonably practicable and not later than when the worker is next due to start work.
By following these suggested actions, employers should not only avoid a breach of the new regulations, but also be best placed to keep their workplace Covid-secure.