Lockdown exit roadmap | The implications for employers
As we approach the one-year anniversary of the UK’s first national lockdown, an end finally appears to be in sight. On 22 February, Boris Johnson unveiled the parameters of the government’s roadmap for easing restrictions, setting out a four-step plan to reopen schools and businesses, reintroduce social contact, and kickstart the economy.
Though explicitly caveated by the ‘data, not dates’ tagline, and conditional to a series of key criteria (vaccine rollout; vaccine effectiveness; infection rates; variants), the announcement of this roadmap has still been the breath of fresh air everyone needed, not least hard-hit business owners.
However, as people leaders will be all too aware, each and every development during this pandemic has impacted the working world in one way or another.
Here’s what we perceive to be some of the key business implications of the roadmap, with a particular focus on employment law and health and safety.
Safety is the obvious starting point. With businesses reopening and restrictions on social contact being eased, many leaders are now in a position to begin considering what a return to the workplace will look like.
However, there are inherent dangers that accompany this, and as a result, employers must seriously consider how well-equipped their on-site facilities and procedures are before employees return. But don’t leave planning until then – start preparations now to get ahead of the curve.
In the main, this will involve reviewing your COVID-19 risk assessment – something most employers will be familiar with by now. In a nutshell, this document underpins how businesses manage the risk of coronavirus transmission in the workplace. Crucially, your assessment must accurately reflect any changes you anticipate in the workplace, such as the number of employees that will be on site. These details must be determined by the employer well in advance, so now is the time to sit down and iron out them out.
Similarly, the onus is now on employers to review (and potentially update) their on-site COVID-19 policy. This will comprise measures such as wearing PPE, distancing and hygiene measures, adequate ventilation, and so on. This will be a particularly pressing and important task for some, as many sites have not been in operation for several months, so much of this procedure will be brand new.
As well as helping to keep people safe, these measures are going to prove crucial from a people management perspective. If businesses show that they are doing all they can to support their employees in their return to the workplace, the impact on culture, values and wellbeing will be profound, and the less likely you will be to experience resistance around returns to work when the time comes.
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Of course, any discussion of the UK’s route out of lockdown will largely centre around the thing that has made it possible: the vaccine.
For businesses, the first point of contention is whether employers can force staff to be vaccinated or not – something that has been fiercely contested since the onset of the roll-out.
The short answer is no – obviously, employers cannot forcibly vaccinate their staff, as this would amount to assault. However, depending on the circumstances, it may be possible to forbid workers from returning to sites if this is deemed the best way to protect other staff and make the workplace safe.
Though there are countless variables at play in this debate, employers should begin by considering the following:
- The risk profile of the workplace in question. A care home, for instance, would have a strong case for making vaccination a condition of employment.
- The physical features of the workplace in question. For instance, sites that lack suitable space and ventilation may qualify. However, in this scenario, employers may still have to show that other control measures are being implemented (such as reduced staff numbers).
- Whether the employee’s role in particular requires them to be vaccinated. For example, the employee may be required to travel or visit customers’ homes.
- Whether the operational make-up of the business in question would be severely disrupted if large numbers of staff are sick with COVID-19.
- Whether a risk assessment process determines that employee vaccination is a necessary requirement. In this instance, compelling staff to be vaccinated could amount to a reasonable management instruction.
Can employees refuse to be vaccinated?
The obvious caveat to all of this, however, is refusals – something that all employers should anticipate. In fact, early data from December last year showed that only around half of those surveyed would be willing to receive a vaccine.
So, in the event that a refusal occurs, employers must be au fait with the correct procedure. The preliminary steps should be as follows:
- Explain why the vaccination is required. Once again, in order to be lawful, the employer’s request must be ‘necessary’ or ‘reasonable’.
- Investigate the employee’s refusal. Some grounds (e.g. religious beliefs or pregnancy) could be deemed legitimate.
- If ‘legitimate’ grounds for refusal are not given, try to alleviate concerns by invoking official information and conveying the importance of the vaccination for the particular role in question. If refusal persists, other options must then be explored.
- If no other options are available (e.g. if remote working does not apply to the role in question), then the employer may have reasonable grounds on which to suspend the individual without pay. However, this is a tricky and volatile grey area, so we recommend that professional advice is followed before action is taken.
This inevitably leads to the ultimate question: can you discipline (and even dismiss) an employee for refusing to be vaccinated?
Though a complex and multi-layered area, we recommend that employers consider the golden rule before acting: you must demonstrate that your request for vaccination is reasonable, and that your employee’s refusal is unreasonable. Beyond this point, the facts of each case will determine the outcome.
Managing Director, Rotheram Carrington Financial Recruitment Ltd
For many employers, this will be a familiar area, as it’s an issue that has cropped up time and again throughout the pandemic.
Naturally, the key area within this issue is sickness-related absence, primarily caused by COVID-19 itself. In contesting with this, employers will need to refer back to the updated Statutory Sick Pay (SSP) Regulations that were introduced last year.
In a nutshell, the system works as follows:
- The ordinary waiting period for payment of SSP has been scrapped; it is now payable from day one of absence.
- An SSP rebate scheme was introduced for businesses with less than 250 employees. With this, some employers can claim back SSP for the first 14 days of absence
- Employees can use an electronic isolation note as proof of incapacity.
- Workers should self-isolate and be in receipt of SSP if they: are shielding; have COVID-19 symptoms or share a bubble with someone who has symptoms; have received an NHS notification to self-isolate; or have been advised to self-isolate in the run-up to a hospital admission.
- In most instances, the self-isolation period is 10 days.
Beyond these parameters, it must of course be considered whether the employee can feasibly work remotely. If so, SSP may not be a necessary consideration. If not, the employee would qualify for SSP from day one of absence.
Refusals to work
Finally, there’s another key type of absence that employers may have to grapple with in the coming months: refusals to return to work.
Crucially, at the time of writing (4 March 2020), the stay at home guidance is still in place. Therefore, if an employee can perform their role from home, you cannot force them back to work until the guidance changes or your sector is given the green light to reopen. However, even at that stage, you may find that employees are reluctant to return to the workplace due to safety concerns.
Though this is another complicated area that hinges on countless case-by-case factors, there’s a key piece of legislation that comes into play: Section 44 of the Employment Rights Act. The Act prevents employers from subjecting employees to any detriment on the grounds that, “in circumstances of danger which the employee reasonably believed to be serious and imminent”, they left or refused to return to their place of work.
A detriment will include a decision to withhold pay. If the employee is dismissed or resigns in this scenario, you could face an automatic unfair dismissal claim. These types of claims cannot be justified or defended, and employers cannot escape liability by arguing that it was ‘fair’. Given the risks involved, these situations should be handled with care.
If an employee is refusing to work due to COVID-related safety concerns
Ensure that your COVID-19 risk assessment is up to date and that all recommendations have been put in place.
Communicate your findings and control measures to instil confidence and give employees an opportunity to raise questions or concerns.
If an employee raises reservations, speak with them to pinpoint the problem, then go through the risk assessment with them in an attempt to address their concerns. A vulnerable person’s risk assessment may be required to take into account the employee’s specific circumstances and the associated workplace risks.
If their concerns are health related, consider whether medical advice is needed to see whether it is safe for them to be at work. If the employee is disabled, it is important that you make all reasonable adjustments
If the employee is still adamant that they won’t be returning, you will need to consider whether their refusal is reasonable or not. Keep in mind that their refusal to return only has to be reasonable, it doesn’t actually have to be correct.
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From straightforward advice on your vaccination queries to help ensuring your safety measures remain suitable and sufficient, our Employment Law and Health & Safety specialists are here to help you make sense of your responsibilities, overcome difficult COVID-19 challenges, and minimise disruption as you prepare to reopen.
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