End of lockdown restrictions – what should employers be thinking about?

A final decision will not be taken until 12 July 2021, based on scientific advice, the trend in infection rates and the progress of the vaccination programme among other such considerations. The government has, however, updated its roadmap and signalled its intention to remove most legal restrictions on employers from 19 July. Assuming this happens, it will hopefully be accompanied or swiftly followed by detailed revised guidance on the implications of the new regime in workplaces.

In the meantime, what are the main issues employers should be thinking about and how should they be starting to prepare?

Working from home

The “work from home if you can” instruction will very probably be withdrawn, so employers can begin to plan for their office-based workers to return to the office. Employers that want to mandate a return will be in a stronger position to do so, although many will opt to do so gradually and/or move towards a model of hybrid working. Employers who mandate or encourage a return to the office may see an increase in flexible working requests to maintain the status quo, and will need to make sure they deal with such requests consistently and appropriately in line with their legal obligations.

Most employers are likely to adopt a cautious approach, at least initially, and we expect some will simply allow staff to continue to work from home for the time being if they wish to do so or until they have had an opportunity to be fully vaccinated. In any event, businesses will need time to decide upon their new workplace safety regime and get to grips with the updated guidance before they are ready to reopen fully (see below).

Workplace safety

The government has confirmed that the sector-specific guidance on working safely during coronavirus is going to be updated. Some of the existing guidance, for example around cleaning the workplace and maximising ventilation, is likely to remain in place. We expect that other parts of the guidance, especially the sections on maintaining social distancing, will be changed significantly. The Health and Safety Executive (HSE) also produces guidance on making your workplace Covid-secure during the coronavirus pandemic and this will also need to be updated.

Employers will continue to have a responsibility to assess their own workplace risks and a duty of care towards their employees. Employees also have employment rights to take certain actions in circumstances where they reasonably believe themselves to be facing serious and imminent danger (see further below). Most employers, therefore, will want to manage their legal risks by retaining protocols for controlling the spread of the virus.

There have so far only been a few reported Employment Tribunal (ET) decisions on workplace Covid-secure issues, but we have seen that ETs have been willing to support disciplinary action in cases where employees refuse to comply with an employer’s safety measures. This has been the case even if the measures go beyond strict legal obligations, provided the employer can demonstrate a clear rationale and show it has communicated that clearly.

In addition to managing their legal risks, some businesses in customer-facing sectors may retain or implement certain safety measures to reassure employees and customers and boost their confidence in the safety of their premises. Whatever their motivations, most employers will need to retain and/or implement a range of measures, although it will be hard for them to finalise any plans before publication of the revised official guidance.

Face masks

Unless there is a volte-face by the government, it seems clear that the legal requirement to wear a face covering on public transport and in shops and other enclosed public spaces will end. Nonetheless, the guidance is still likely to emphasise that masks can reduce the risk of infection in enclosed and crowded spaces.

We do not yet know if there will be any guidance on mask-wearing in offices, and employers may need to develop their own policies about this. Some employers will no doubt ask employees to continue wearing masks, particularly in communal areas. That is especially likely where it is known or perceived that this is what other employees and/or customers want. The presence of vulnerable employees in the workplace will also be a significant factor in many cases.

This underlines the value of businesses consulting with employees on their risk assessments and more generally – not only in relation to mask-wearing but the various other Covid-19 measures highlighted in this article as well. Employers should be in a stronger position to enforce protocols if they have arisen from employee concerns expressed in a meaningful consultation process, especially if they want to continue with restrictions that go beyond their legal obligations

Social distancing

The government has indicated that all social distancing restrictions will be removed, including in workplaces, which makes it likely that the current guidance on reducing occupancy levels and ensuring that employees can keep apart from each other and from customers will be discontinued. As with mask-wearing, however, employers may need to develop their own regimes and protocols. We expect that many will continue to apply some social distancing guidelines as a means of reducing legal risks and/or reassuring employees and customers.

Meetings

The tight legal restrictions on “gatherings” look set to be lifted, so there will be no longer any legal limits placed on the number of people who can attend meetings in the workplace or elsewhere. The revised guidance may include details about keeping meetings safe. It will, in any case, be prudent for businesses to retain protocols to reduce the risks of transmission. These might include, for example, providing sanitising equipment and maximising ventilation.

Employment claims

Under important provisions in the Employment Rights Act 1996 (ERA), employees have the right not to suffer a detriment or be dismissed (including constructive dismissal) for:

• leaving work or refusing to return to work when they reasonably believe they are in serious and imminent danger that they cannot avert (sections 44(1)(d) and 100(1)(d) ERA)

• taking appropriate steps to protect themselves or other persons from danger (section 44(1)(e) and 100(1)(e) ERA).

These types of claim were rarely made before the pandemic, but employees have brought several ET claims over the dangers posed by Covid-19. The small handful of ET decisions so far do not resolve the key questions for employers, such as what (if any) specific dangers need to be present before an employee can take to work and what steps (if any) should employees take to avert the danger before refusing to work.

Until these issues are clarified through case law, employers can best mitigate the risk of Covid-danger ET claims by setting up control measures, communicating clearly with their workforce and establishing clear channels and processes for dealing with employee complaints about workplace safety. For more detailed guidance on the sorts of steps employers can take to manage legal risks, see our table How to mitigate the risk of employment claims on return to work during Covid-19.

Given the uncertain landscape and the fact that the vaccination programme is advanced but not complete, some businesses are (as mentioned above) likely to take the most cautious approach of allowing staff to continue to work from home for the time being. For other employers who want to encourage a return to the office as soon as possible, it will be important to identify any “at risk” individuals. Claims are most likely to come from those groups, especially clinically vulnerable employees or those who live with someone who is clinically vulnerable.

Further guidance on clinically vulnerable employees can be expected, especially in relation to the clinically extremely vulnerable. The government’s roadmap states that some individuals may choose to limit close contact with those with whom they do not usually live, particularly if they are clinically extremely vulnerable, and the importance of being considerate towards those who may wish to take a more cautious approach as restrictions are lifted. However, we await practical guidance for employers on how they are to be expected to manage the risks following the lifting of restrictions on 19 July.

Commuting to work

The commute to work is likely to be a highly contentious issue for public transport users, especially since face masks will apparently no longer be required. With the question of how far an employer’s duty of care extends to commuting risks remaining legally uncertain, employers will need to listen to employees’ concerns and assess their circumstances individually. They should be prepared to discuss adjusting start and finish times as well as other options such as supporting cycling to work. Finally, commuting risks may prove a significant factor for many of the employers who decide to continue allowing employees to work from home.

Vaccination and testing

The government has confirmed that it is not making “Covid passports” mandatory, although businesses could decide to use them at their own discretion. Employers will need to keep their policies under review.

Recommending (or requiring) that employees take a lateral flow test before attending the office has become quite common and that is likely to continue, particularly where employers want to relax measures such as mask-wearing and social distancing. Given the easing of self-isolation requirements for the fully vaccinated from 16 August 2021, it is possible that we also see more employers reconsider vaccination not as a condition of employment but as a requirement for office attendance (with the ability to consider individual circumstances on a case-by-case basis).

Next steps for employers

Employers urgently need the new guidance before they can finalise their plans, but many are already starting to think through the issues. At this stage, the key next steps are as follows.

• Make a preliminary assessment of how the lifting of restrictions will impact your organisation and the approach you are likely to take, subject to guidance, to the key issues outlined above.

• Check your plans against the revised government workplace guidance which (hopefully) will be published on or soon after 12 July, and also the amended HSE guidance when it becomes available.

• Conduct fresh risk assessments, involving consultation with your workforce, and revise plans as necessary in light of them.

• Communicate and consult with staff about your proposed new rules and protocols throughout and be open to their opinions and concerns. This will put you in a stronger position to enforce the regimes you have decided to adopt or maintain.

We will be updating our FAQs, flowcharts, checklists and other materials as soon as we know more.