We all thought that as of the 19th July we would be getting back to some form of normality as lockdown restrictions were easing! However, as the government seem to be back tracking on their recent advice about getting back to the office, and are now saying that we should “continue to work from home” if we can, and we are being “encouraged” to continue to wear masks, we wanted to send you our thoughts on how you approach getting back to work!
Talk to your staff.
Employers should be aware that mandating a wholesale return to the office carries several legal risks. Although there is no legal right for employees to work from home, employers should take time to understand personal circumstances and any concerns employees may have about returning to the office. Employers will also need to review their approach to flexible working requests. The business reasons for refusing a flexible working request will have changed during the pandemic, so you may need to consider how flexible working requests will be handled following a re-opening of offices. Policies should be reviewed and updated too – let us know if you need our help with this!
Face coverings and distancing
Mask or no mask?! Social distancing rules will be lifted and wearing face masks will become a matter of personal choice from 19 July 2021. Although its not mandatory anymore, we are now being encouraged to wear face masks again! Interestingly, the fact that the wearing of face masks would no longer be mandatory, has been met with significant concern by trade unions warning that workers will be placed at significant risk if the wearing of face masks are dropped.
Some organisations have confirmed that they will continue to require staff and customers to wear face masks. Regardless of the changes to the Government guidance, employers still have a legal duty of care under the Health and Safety at Work Act to ensure that there is a safe working environment for their employees. In the face of a ‘significant and rising’ epidemic, organisations must take steps to ensure that employees are returning to a safe workplace. Therefore, your Risk assessments will need to be reviewed and updated, and you may decide that you want people to continue to wear face coverings. Each business will be different – and this will be a decision you need to make based on your risk assessments.
The Government published its response to mandating COVID-19 vaccines in care settings on 16 June 2021. The outcome is that COVID-19 vaccines will become mandatory in care settings. The Government outlines that this policy aims to protect people who are most at risk from COVID-19 and its complications, by driving vaccination uptake in high-risk settings and ensuring staff vaccination levels.
The Equality and Human Rights Commission stated in its response to the consultation that mandating vaccines in the care sector would be ‘reasonable’ and that the Government is right to prioritise protection of the right to life for older residents. The Government is also due to launch a further consultation on whether to make COVID-19 and flu vaccination a condition of deployment in health and other care settings (e.g., NHS and domiciliary care). Any mandatory vaccine policy will require careful implementation by employers; job adverts, contracts of employment, employee handbooks, policies and privacy statements will all require updating. There may also be employee consultation requirements to successfully implement this policy. Again, please make sure that you get professional advice in this area before launching any kind of decision to your business.
Coronavirus Job Retention Scheme (Furlough Scheme)
Despite hopes from businesses that the Government would delay plans to require employer contributions to the Furlough Scheme, from 1 July 2021 employers are now required take on more of the costs relating to furloughing workers. This may put pressure on businesses to consider restructuring or rationalisation as the Government’s financial support draws to a close later in the year. If you need our help with any matters relating to how you continue with furloughing staff or bringing back furloughed staff or the fact that you may have to restructure or consider redundancies for furloughed staff, then give us a call, we will be happy to help you look at the best options for you.
Interesting case law is starting to appear in relation to Covid19.
A key question we have been asked is how to manage employees who refuse to attend work due to COVID-19 related health and safety concerns. Employers need to be aware of the protections afforded to employees in these circumstances. The Employment Rights Act (s100) protects those who, when faced with ‘serious and imminent’ danger at work, are dismissed for taking appropriate steps to protect themselves or others from the danger. If individuals are dismissed under these circumstances, they will automatically be seen to have been unfairly dismissed. We explore two contrasting Employment Tribunal (ET) decisions concerning the dismissal of employees for expressing concerns about COVID-19.
In Accattatis v Fortuna Group – Mr Accattatis was employed by Fortuna Group, a company that sold and distributed PPE. Staff were ‘key workers’ during the first wave of the pandemic and the business remained open throughout the first lockdown. On 30 March 2020 Mr Accattatis developed COVID-19 symptoms and self-isolated. Shortly before he was due to return to work, he asked either to be furloughed or to be allowed to work from home. Mr Accattatis expressed concerns about commuting and being in the workplace. Mr Accattatis’ role involved being physically present in the warehouse, so Fortuna Group rejected his requests and subsequently dismissed him due to a failure to ‘comply fully with company policies and guidelines.’ Mr Accattatis bought a claim for automatic unfair dismissal under s100 ERA that his workplace posed a serious and imminent danger to him.
The ET accepted that Mr Accattatis reasonably believed that he was in serious and imminent danger, however, the ET did not accept that he was unfairly dismissed. The ET took into consideration the government guidance at the time that the pandemic presented a threat to public health, as well as the multiple emails Mr Accattatis had sent to his employer expressing his concerns about his commute to work. However, Mr Accattatis had not taken appropriate steps to protect himself or others from the danger; his demands for furlough or working from home were not appropriate steps to protect him from the danger and the option of paid or unpaid leave was not taken for economic reasons.
In Gibson v Lothian Leisure – Mr Gibson was employed by Lothian Leisure as a restaurant chef. In March 2020, Mr Gibson was furloughed when the restaurant was forced to close. When the restaurant reopened, Mr Gibson raised concerns about returning to work without PPE and other Covid-secure workplace measures. Mr Gibson was concerned about catching COVID-19 and passing it to his father who was clinically vulnerable. Mr Gibson was apparently told to “shut up and get on with it” by his employer. On 30 May 2020, Mr Gibson was dismissed by text message. The ET concluded that Mr Gibson had been automatically unfairly dismissed; he had taken appropriate steps to protect his father in what he reasonably believed were circumstances of serious and imminent danger.
As these are only first instance ET decisions, they are not strictly binding on other Tribunals, but these cases provide some guidance to employers on how tribunals may approach cases relating to health and safety in the workplace. Clearly to obtain the protection of the Health and Safety at Work Act, s100, individuals must express very specific concerns about their” serious and imminent danger” at work and must take appropriate steps to protect themselves from the danger. These are important considerations for employers as the remaining restrictions ease and employers encourage their employees back into offices.
If you are confused or worried about any of the changes coming into force on the 19th July and would like to talk this though with an HR expert, then you can book a call with Emma or Rachel to discuss the best approach for your business.