UK ‘return to work’ guide leaves decisions in the hands of employers

Out-Law News | 16 Jul 2021 | 3:43 pm | 2 min. read

UK government guidance puts the onus on individual employers to determine the best way in which to keep their workers safe from the spread of Covid-19, an expert has said.

The guidance on working safely during Covid-19 was issued ahead of the move in England to ‘Step 4’ on the roadmap to easing restrictions on some civil liberties on 19 July.

Employment law expert Sue Gilchrist of Pinsent Masons, the law firm behind Out-Law, said, though, that while many employers had been eagerly anticipating the guidance from the government, “the main thrust of the guidance is to pass decision-making on to employers about how to keep their workplaces and workers safe”.

Gilchrist said that the lifting of restrictions brings challenges for employers and that, from a health and safety perspective, employer risk assessments are a vital step. She said the change in government guidance should prompt a review of risk assessments.

The guidance produced by the UK government is split into different sections depending on the nature of the working environment employers operate.

The guidance for offices, factories and labs recommends employers provide adequate ventilation and clean more often and encourages them “to translate this into the specific actions you need to take”. Those actions, it said, “will depend on the nature of your business, including the size and type of business, how it’s organised, operated, managed and regulated”. Employers are urged to monitor the measures they put in place “to make sure they continue to protect customers and workers”.

Gilchrist said that the guidance means human resources personnel and those in health and safety teams are now having to work at speed and in something of an information vacuum to reconsider their risk assessments and communicate effectively with their workforce ahead of their anticipated return to the workplace.

While social distancing will no longer apply in England, the guidance does envisage limiting contact among workers, for example by having allocated teams or shift groups to limit mixing.

On face coverings, the guidance is that employers “consider encouraging the use of face coverings by workers” particularly where they meet others they do not usually mix with and in crowded and enclosed spaces.

“This will form part of the health and safety risk assessment, but, as we have seen, face coverings can be a highly politicised issue, and careful messaging and positioning will be required,” Gilchrist said. “There will also need to be consideration of what action would be taken in the event of a breach of policy on the issue.”

Gilchrist said that the guidance’s section on ‘testing and vaccinations’ does not provide the level of clarity many employers will be looking for to navigate data protection issues.

She said: “Some employers are actively reconsidering the question of checking whether workers have been double vaccinated, so they can inform vulnerable colleagues that their area is protected in that way. However, there are concerns around privacy and other risks, including potential discrimination risks, which need to be worked through. The guidance does propose that employers give extra consideration to workers who are at higher risk, and being able to inform them that colleagues are double vaccinated – though not to the individual level – could potentially be a reasonable adjustment to enable the clinically vulnerable to return to the workplace. However, a risk and privacy assessment is required, also taking account of the employer’s risk assessment, discussions with trade unions and employee forums.”

Katy Docherty, who specialises in employment data protection at Pinsent Masons, said: Each organisation will need to assess whether, from a data privacy perspective, their organisation can in fact lawfully ask employees for vaccination status. This assessment should to be based on the needs and circumstances of that business and employers should not assume that the latest guidance provides a carte blanche to request vaccination status details, which are special category data under data protection law. Companies must still apply their minds as to how data protection law applies to their specific situation.”

Gilchrist said that the lack of clear guidance in relation to workplace safety after ‘Freedom Day’ will make it more difficult for employers to enforce some of the policies they have previously set. She predicted that many employers and employees may delay a return to the workplace until a better understanding of best practices emerges.