The Prime Minister has unveiled his plans for the easing of lockdown restrictions on 19 July. He has confirmed that the legal restrictions will be lifted, but he expects individuals to exercise ‘personal responsibility’. The burden will be on employers to decide how to manage COVID-19 risks.

The Government will remove the requirement to work from home. This means that all workers can return to the workplace; however, the PM has stated that he “doesn’t expect everyone to be at their desks Monday morning” and has urged the public to take a steady approach to the easing of the restrictions.

In their briefing, they have also confirmed:

• Masks: The legal requirement to wear masks will be removed, however, the PM has advised there will be an expectation on individuals to wear them when in crowded places, such as public transport. It will now be down to employers to decide the policy on mask-wearing.
• Social distancing: The legal requirement to socially distance will be removed, however, the PM has advised there will be an expectation on individuals to think about others. It will now be down to the employer to decide the policy on social distancing.
• Ventilation: The medical advisors have stressed that ventilation should be a priority when considering COVID-19 risks.
• COVID-19 testing: The Government has maintained support for twice-weekly asymptomatic testing to ensure the chain of transmission is broken; there is no legal requirement for this.
• Self-isolation: The rules on self-isolating will not change after 19 July as the Government has stated this is essential to stop the spread of COVID.
• Quarantine: The rules on quarantine will not change when individuals return from outside the UK on 19 July.
• COVID Pass: Venues such as pubs and nightclubs have been encouraged to use the NHS app as a way to show negative test results for COVID. However, there is no legal requirement to do this.

Employers will now need to decide how to prepare for the easing of restrictions and consider any adaptations that can be made to working practices. Below is some FAQ’s for considerations in the workplace from 19 July.

1. What is the advice from the Government on returning to work from 19 July?

The Government will remove the requirement to work from home. This means that all workers can return to the workplace; however, the PM has stated that he expects people not to rush to get back to their desks. Therefore, employers may find it appropriate to adopt a hybrid working policy where employees work a combination of at home and at the workplace. Employers should try and be flexible where practicable.

It will be for the employer to decide how to manage the risks of Covid-19.

2. What does an employer need to do to ensure the workplace is Covid-19 secure from 19 July?

The Government is currently updating its “working safely during coronavirus” guidance for 19 July.

Throughout the pandemic, employers have been expected to do what is reasonable and necessary to reduce the transmission of Covid-19. To achieve this, employers must undertake a risk assessment of the workplace to identify the risks and consider actions to remove the risk.

Employers should ensure ventilation is considered within the risk assessment as the medical advisors stressed the importance of airflow to reduce the transmission of the virus. If windows need to be kept open to maximise ventilation, this should be balanced with appropriate working temperatures.

Following the risk assessment, employers should then take action to control the potential spread of the virus. This could be done by adopting reasonable measures and implement policies on the following (but is not limited to):

• frequent cleaning – employers should consider how often surfaces are cleaned and consider increasing how often this occurs
• hand sanitation – ensuring hand sanitiser and soap is available to employees
• limit unnecessary contact where possible
• ensure that anyone who is unwell does not attend the workplace and follows the rules on self-isolation
• social distancing and facemasks – there will no longer be a legal requirement; however, employers can still decide to implement a policy if they wish. Employers must have consideration to equality law so must consider those who are medically exempt from wearing a mask.

3. Should employers communicate to employees on returning to work and the new practices in place?

Employers should communicate with employees when they will return to work and the new measures in place. They should ensure that this is communicated clearly and all employees understand the procedures they must follow. Employers should also consider using signage and other methods to remind those entering the workspace of the measures. Some individuals may be apprehensive about returning to work so it is important that employers listen and talk through any concerns raised.

4. Can employers force employees to return to work?

From 19 July, the requirement to work from home will be lifted. Therefore, employers can request that employees return to the workplace. However, the Government has requested that the public act ‘slowly’ to the easing of restrictions. It may be more appropriate to consider hybrid working methods or a gradual return to the workplace.

An employee may be able to refuse to return to the workplace if they have concerns about health and safety. The law will protect an employee from detriment if they reasonably believe that going into work would put them in serious and imminent danger. If an employee raises concerns over health and safety issues, this must be taken seriously. An employer may need to reassure an employee of the measures put in place or re-evaluate whether further action needs to be taken to ensure safety in the workplace.

An employee may also raise concerns related to their own health condition or for another personal reason which will need to be carefully considered. If the employee is disabled, the employer has a duty to make reasonable adjustments.

If an employee continues to refuse to go back to work despite appropriate H&S measures in place, the employer could start disciplinary proceedings. It would be advisable to seek legal advice before taking this action.

5. What should an employer do if an employee notifies them they have, or been exposed to someone, with Covid-19?

It is an offence to force an employee to work anywhere other than where they are self-isolating. A breach of this offence may result in a fine for the employer. The Government has confirmed that the rules on self-isolation will remain in place on 19 July.

Employers should ensure that employees are not treated differently for needing to take time off for self-isolation and employers should agree with employees how they will return to the workplace safely.

6. Can employers refuse employees to work unless they have had the Covid-19 vaccination?

Creating a policy that does not allow employees to work unless they have been vaccinated should be treated with extreme caution.

Mandatory vaccinations would be highly intrusive for employees and it would raise serious ethical concerns. The law does not state that individuals must have the vaccine and some people may not be offered the vaccine at all due to health reasons. If an employee was dismissed or treated differently for not being vaccinated, this could give rise to a range of claims such as discrimination or unfair dismissal. There are also Human Rights concerns as a mandatory policy for vaccination contravenes against an individual’s right to private life.

Legal advice should be sought before introducing a policy on mandatory vaccinations.

7. Can employers encourage employees to get the vaccine?

Employers can encourage employees to have the vaccine and advise employees of where to access health information. Employers can provide support by allowing paid time off for the vaccine appointment or for the side effects caused by the vaccine.

Whilst employers can encourage employees to have the vaccine, they should be careful as to not treat employees any differently if they know they have refused the vaccine. If they did so, this could potentially give rise to discrimination concerns.

8. Can employers make employees work from home if they have not been vaccinated?

Requiring employees who are not vaccinated to work from home raises very similar concerns to question six. This scenario puts those employees who have not been vaccinated at a disadvantage if they cannot work from home effectively.

This type of policy could lead to equality issues and potentially discrimination, especially if an employee cannot have the vaccine for health reasons.

Legal advice should be sought before introducing a policy on mandatory vaccinations.

9. Can an employer obtain data on Covid-19 vaccine status of employees?

To obtain data on employee’s health, under GPDR it must be fair, necessary and relevant for a particular purpose.

The ICO provides guidance on employers obtaining information on employee’s vaccination status. Before asking employees whether they have had the vaccine, employers must be clear on how obtaining this information will be of use to them. It is not enough for employers to obtain this information because they are interested; it must serve a particular purpose.

If an employer has a good and compelling reason for obtaining this information then it may be justified. However, it will depend on the circumstances and the workplace on whether it would be reasonable to obtain data on an employee’s vaccination status.

Legal advice should be sought before requesting an employee’s health data.

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The employment guidance for business portal

In addition to the Q&A’s, we are pleased to announce that we have an easily-accessible Ashtons Legal Online HR Portal for businesses, which contains over 95 HR documents, templates and draft letters, covering over 14 topics such as contracts and offer letters, disciplinary issues, flexible working, performance management, family leave, sickness absence, recruitment, termination of employment and redundancy. The portal also contains a Furlough Agreement and a Job Support Scheme Open Agreement.

All of these materials are regularly updated to comply with new developments such as the COVID-19 crisis and the Good Work Plan, which came into effect on 6 April 2020.

If you would like unlimited one-year access to this portal, we are charging £325 plus VAT.

Please get in touch by emailing employment law solicitor, Claire Sleep at claire.sleep@ashtonslegal.co.uk.

Contact our Employment Law solicitors today

For specific advice for your business, please get in touch with our specialist Employment Law team through this website or by calling 0330 404 0778.

Our partners at Ashtons HR Consulting are also on hand to assist you

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This information is correct at 2pm on 13 July 2021.