Covid - Legal Considerations for Employers After “Freedom Day”

What has changed?

On 19 July, Freedom Day, most of the Covid-19 restrictions in England were lifted or relaxed. At first glance the changes appear significant for employers:

• All business, including nightclubs, can now open with no restrictions on the number of people attending events.
• The government is no longer instructing people to work from home and is recommending a gradual return to work over the summer.
• Social distancing is no longer mandatory and there is no obligation to implement social distancing in the workplace.
• There is no longer a legal requirement to wear face coverings, although the government recommends that face coverings continue to be worn in crowded and enclosed spaces where individuals encounter people they don’t normally meet.

What does Freedom Day mean in practice for employers? 

Freedom Day has made Covid-related risk management the responsibility of individual organisations, rather than something that is mandated by the government. This means that, whilst employers now have more flexibility in how they mitigate Covid-risk, Freedom Day will not herald a return to a pre-Covid ways of working.

What are my obligations and potential liability as an employer? 

Obligations

The lifting of restrictions has no impact on the employer’s legal duty of care to their employees or their obligation under the Health and Safety at Work Act 1974 to ensure that, so far as is reasonably practicable, the health, safety and welfare of employees are protected. Employers should still carry out Covid-risk assessments of their workplaces to establish what protective measures need to be put in place. Inevitably this will mean going above strict legal requirements. For example, protective measures that are easy to maintain, such as regular cleaning, easy access to hand-sanitising gel and good ventilation should stay in place.

Employers should also be mindful of, and (where possible) follow, the sector specific government guidance. This is available here and is updated regularly.

Potential Liability

In extreme cases, the Health and Safety Executive can investigate and prosecute employers who fail to comply with their obligations under the Health and Safety at Work Act 1974. It is more likely, however, that diligent employers will face personal injury claims from employees who contract Covid at work. 

To successfully bring a personal injury claim, an employee must, amongst other things, show that the employer breached its duty of care to the employee and/or its obligation to take reasonably practicable steps to safeguard the employee’s health and safety.

A key element of defending a personal injury claim is being able to demonstrate that you considered the risks carefully and took sensible steps to mitigate those risks. Being able to show that you have implemented appropriate health and safety practices and policies and that you have followed government guidance will therefore be a good defence against a personal injury claim.

How can PocketLaw help?

Employers should always have up-to-date policies that are appropriate for the current legal situation. You can use PocketLaw to quickly draft a tailored “Health and Safety” policy that includes Covid-specific provisions.  

Getting employees back to the workplace

Can I ask all employees to come back to work?

Yes, legally you can request all employees return to the workplace. However, there are a number of practical issues that employers should consider before asking all employees to return to work. In particular:

• Anxious employees: Returning to work will be a big step for most employees. It is important that employers communicate the measures taken to make the workplace safe so that employees feel comfortable returning. Employers should try to accommodate the concerns of employees to ensure a smooth return to the workplace. This is particularly true of any concerns that employees who have been identified as “clinically vulnerable” may have.
• Requirement to self-isolate: At the moment there is still a requirement for individuals to self-isolate if they are notified through the NHS Track and Trace App that they have come into close contact with someone who has tested positive for Covid. Having a return-to-work strategy where employees are not all working in close proximity at the same time reduces the risk of significant staff shortages if one employee gets Covid.
• Pregnant employees: A “precautionary approach” should be taken in respect of women who are either (a) 28 weeks pregnant or more; or (b) pregnant and have underlying health conditions which put them at greater risk of severe illness from Covid. Employees in this category will need to work from home where possible and potentially may need to be suspended from work on full pay on health and safety grounds. 

What about employees who continue to work from home?

Now that the government is no longer instructing employees to work from home, contractually at least, the employee’s normal workplace is now the office. If an employer does not enforce this contractual obligation for a reasonable period, employees could argue that their contractual place of work has changed to their home. Should the employer subsequently try to force the employee back to the office at some future date, it could constitute a fundamental breach of contract, giving rise to a constructive unfair dismissal claim.

To avoid this, employers should clearly communicate the extent to which home working is permitted and whether this is a temporary arrangement. This can be done using a Homeworking policy. If you don’t have a Homeworking policy, you can draft one using the PocketLaw template.

Can an employee refuse to return to work?

Employees can refuse to return to a workplace if they reasonably believe that doing so would put them in serious or imminent danger. However, as the government is no longer recommending employees work from home, it will be difficult for an employee to prove that he or she would be in serious or imminent danger at work. This will particularly be the case if the employer has taken reasonable health and safety measures to provide a safe working environment.

What about flexible working?

Employees with at least 26 weeks' continuous service have a statutory right to make a flexible working request to permanently change the terms and conditions of their employment. These changes can relate to the employee's hours, times they are required to work or the location from which the employee is required to work. Requests can only be denied on certain prescribed grounds and, if the request is denied, the reason should be communicated to the employee.

You can use PocketLaw’s flexible working checklist to help you consider a flexible working request. You can also create a flexible working policy using PocketLaw’s template.