Tricky issues for employers as England ends Covid restrictions

Out-Law News | 22 Feb 2022 | 4:32 pm | 4 min. read

UK employers will have to carefully balance workplace health and safety risks, particularly for vulnerable staff, as the country’s approach to managing Covid-19 changes, employment law and workplace health and safety experts have warned.

England’s remaining Covid-related legal restrictions will end on Friday, 24 February, as part of plans to “live with and manage” the risk of Covid-19, prime minister Boris Johnson has announced. This includes the legal requirement to self-isolate following a positive test or as an unvaccinated close contact of a positive case; additional local authority powers to tackle local outbreaks; routine contact tracing; and the £500 self-isolation support payment.

From 1 April, the government will no longer offer free community Covid-19 testing, including both symptomatic PCR tests and asymptomatic rapid lateral flow tests. Free testing will instead be targeted to symptomatic cases in “a small number of at-risk groups”, according to the prime minister. The requirement that employers explicitly consider Covid-19 in their health and safety risk assessments will end on the same date.

Enhanced statutory sick pay will end on 24 March across the UK.

Metcalfe Katherine

Katherine Metcalfe

Partner

Although Covid-specific rules around testing, self-isolation and mask-wearing will differ throughout the UK, the health and safety risks posed to employees by Covid-19 are essentially the same everywhere

In Scotland, an updated ‘strategic framework’ for tackling Covid sets out the government’s intention to “resort much less … to legally imposed protective measures”. The Covid certification scheme, which requires certain venues and events to check the vaccine or test status of attendees, will end on 28 February, while the legal requirement to wear face coverings in certain indoor settings and on public transport will end on 21 March and be replaced by a “strong recommendation” to do so.

The Scottish government will continue to advise those who have tested positive for Covid-19 to self-isolate, and the self-isolation support payment scheme will continue. It intends to publish a “detailed transition plan” on moving to a more “targeted” system of symptomatic and asymptomatic testing and surveillance next month. The current testing and surveillance schemes operate on a UK-wide basis.

With Wales due to publish an update to its own rules next week, health and safety expert Katherine Metcalfe said that the differing approaches created “a compliance dilemma” for employers.

“Although Covid-specific rules around testing, self-isolation and mask-wearing will differ throughout the UK, the health and safety risks posed to employees by Covid-19 are essentially the same everywhere,” she said.

“Employers may use England as a baseline and add any further mitigation measures required by law in the devolved nations – but, in doing so, they may inadvertently demonstrate that from a health and safety perspective, it is reasonably practicable to do more to address the risks of Covid-19 than is now being done in England. The other option available until now is that some employers have designed measures to comply with whichever set of rules is the most stringent and applied these everywhere – but the withdrawal of free testing and isolation requirements now makes that a challenging approach too,” she said.

Employment law expert Anne Sammon said that even without a legal requirement to self-isolate, employers could still impose their own requirements. “However, if free tests are no longer available, it is unlikely that many employees will be testing to know whether they have Covid in the first place,” she said.

“Similarly, while there is nothing to stop employers from providing free tests for their employees, it is questionable how many employees will want to test if they are no longer under an obligation to do so and there is no support available if self-isolating,” she said.

Employers must also continue to consider the needs of their clinically extremely vulnerable workers in their health and safety risk assessments, regardless of an explicit duty to consider Covid-19 implications, Sammon said.

“Employers should speak to staff to understand their concerns and consider reasonable adjustments where necessary, such as home working on a permanent basis. Ultimately, if that role needs to be done from the office and the employee refuses to attend, termination of employment may be the only option – but there are discrimination risks, so specific advice must be sought on the particular circumstances,” she said.

Data protection expert Katy Docherty warned that employers collecting data on Covid-19 infections or vaccination status among their staff would have to look at this data gathering again in light of the government’s change in approach.

Katy Docherty

Associate

Employers will need to consider, on a case by case basis, why they might still want to gather data about employee health or vaccination status, and consider whether they have a lawful basis and processing condition under data protection law to allow them to do so

“Employers will need to consider, on a case by case basis, why they might still want to gather data about employee health or vaccination status, and consider whether they have a lawful basis and processing condition under data protection law to allow them to do so,” she said.

“Despite the government’s change in stance, employers may nevertheless determine that to meet their own health and safety obligations, they still need to know whether staff have Covid-19 or if they are vaccinated, or they might have pressing commercial reasons which mean they still need to seriously consider whether they can justify gathering such data. This needs to be given careful thought against their specific backdrop,” she said.

Both the UK and Scottish governments said that, with case numbers and hospital admissions falling, they had a duty to remove disproportionate restrictions on public freedoms. The prime minister also stressed a need for “personal responsibility” in respect of public health advice, as with other infectious diseases, while the Scottish government said that it would still “recommend voluntary compliance” with behaviours such as face masks.

Metcalfe said: “Businesses in Scotland will no longer be under a legal obligation under Covid legislation to ‘have regard to’ guidance – but health and safety law still requires employers to mitigate the risk of Covid-19. For so long as the guidance remains in place, employers will need to have regard to it”.

“More importantly, it will be a significant challenge for public-facing businesses to continue to adopt and follow guidance to control Covid-19 if the public is not obliged to follow those measures. It will be difficult to judge the effectiveness of safety measures in those situations,” she said.

A fourth booster vaccine will be made available in the coming weeks to all adults aged over 75, residents of care homes for older adults and those over 12 who are immunosuppressed, in line with the latest recommendations of the Joint Committee on Vaccination and Immunisation (JCVI). Further boosters may follow in the autumn, depending on JCVI advice.