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I can see clearly now… restrictions are gone!

Libby Hubbard outlines some of the issues employers should consider following the lifting of Covid-19 restrictions.

Most of us welcome the news of lifting Covid-19 restrictions, however, given the upheavals of the last 23 months, the return to “normal” (whatever that means) may not be an easy one. New working patterns have emerged, children have been born, houses sold, new ones bought, and fresh life choices adopted.     

What has changed?

  • 19 January 2022 - requirement to work from home lifted
  • 27 January 2022 - requirement for face masks lifted
  • 24 February 2022 - requirement to self-isolate when tested positive lifted

What does that mean for the workplace? How do employers return to the new normal, bringing their staff along with them? Will new work requirements be, like our old workwear in the wardrobe, a welcome change, or will they feel more restricted and need some adjusting?

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Can we require all staff return to their previous work arrangements?

We would advise against a blanket policy, without consultation or discretion, which requires all staff to return to the office and work in the same way as prior to the pandemic. Some may welcome the move, but others will not. A wiser choice is to take it slowly and ask some questions. Do you need all staff to return to work from the office? On the other hand, is the removal of any office working going to work for all staff? Has any hybrid working policy introduced to date been successful? If requesting staff to return the office, what roles need to be office-based, and what is the evidence for that, especially if the role has been completed from home for the last 20 plus months? 

Where there is resistance, subject to the employment contract, an employer can require staff back into the workplace and failure to return could potentially lead to the disciplinary route. However, we would not advise such a heavy-handed approach especially when the reason for the resistance may be related to caring responsibilities for children or older relatives, given the potential for indirect discrimination. Better to see what compromise can be agreed upon and where that is not possible, discuss a statutory request for flexible working being submitted.

What about employees who are still nervous about returning to work?

There are two issues to address with this; the first is whether there are any grounds to the employee’s nervousness that would trigger the need for a risk assessment. Does the employee have an underlying health condition or live with someone who does? If the answer to either of those is yes, then it would be wise to discuss with the employee the risk assessment carried out, what measures have been taken and how you are satisfied that you have met your requirement to protect their health and safety within the workplace.

The second issue relates to the culture of your workplace. Is it clear that colleagues are going to have different ideas regards returning to work, face masks, vaccinations etc and that respect for each other is important whether verbally or in the physical space - in lifts/workstations etc?

Can we still ask staff to self-isolate when they no longer have to?

Staff would usually remain at home when they are ill so the hope is that they would do so if they have Covid-19. The issue arises if their symptoms are not severe, they do not want to rely on statutory sick pay and so return to work. We would advise, applying the respect piece noted above that you ask staff to be mindful of the dangers of catching Covid-19 and advise on not coming into work if they are still testing positive.

The Government has promised guidance for employers on this point, but we do not expect it to have any teeth and be hugely effective. You may want to consider your sick pay provisions – many employers have reduced contractual sick pay for unvaccinated staff (see blog here) who are self-isolating. However, if you are to encourage staff to remain at home when they have Covid-19, you may need to address who is entitled to more than statutory sick pay and whether you can afford to adjust that.   

Can we still pursue a “no jab, no job” policy?

Parking for the moment the Government’s spectacular U-turn on mandatory vaccinations for staff in the health and social care sector (see our blog here), there has been no government guidance on this point. It has confirmed in its consultation on mandatory vaccinations that vaccination remains our very best line of defence against Covid-19. Whilst the Government continues to hold to that, we would advise that a recruitment policy that requires vaccination could still be lawful should you wish to introduce one or continue with one (especially in health and social care).

In the case of Allette v Scarsdale Grange Nursing Home, an employment tribunal has found that the dismissal of a care home employee for refusing to be vaccinated against Covid-19 in January 2021 was not unfair. Although the tribunal accepted that the employee’s fear of and scepticism about the vaccine was genuine, the requirement to be vaccinated was a reasonable management instruction and she had no medical authority or clinical basis for refusing (see blog here). 

If you would like any documentation for such a policy, please do contact us as we have document packs with recruitment wording.   

Libby Hubbard is a Professional Support Lawyer at Anthony Collins Solicitors.

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