The Living with Covid Road Map: Highway to Heaven or Spaghetti Junction – An Employment Lawyer’s perspective.

The Prime Minister’s announcement last night of the easing of Covid restrictions, starting on 24th February 2022, is likely to provoke a variety of responses ranging from welcome relief to appalled dismay.  Amidst the extremes will be the tepid enthusiasm of the majority – keen to dip their toes into the freedom pool but fearful for the maelstrom which may lie beneath.

Whatever your view, the reality is that – for better or worse – we must now live by the “keep calm and carry on” mantra for which we are famous.  We must use our common sense (assuming we weren’t already) and decide for ourselves how we wish to live with the ongoing Covid threat, juggling the conflicting priorities that this will naturally entail.

In this note, Prettys’ Employment Team, summarises the changes to the restrictions and provides some advice and guidance as to the issues employers should consider to prepare for these changes and maintain the safety and stability of their workforce.

What restrictions are going?

There are three key dates along the government’s road map for living with Covid: 24th February 2022; 24th March 2022; and 1st April 2022.

From 24th February 2022:

• the legal obligation to self-isolate following a positive test will be removed;
• the obligation for employees to tell employers if they are required to self-isolate will end;
• self-isolation support payments will end;
• routine contact tracing will cease and contacts of those with a positive test will no longer be required to self-isolate or take daily lateral flow tests.

From 24th March 2022:

• Statutory Sick Pay (SSP) will revert to the pre-pandemic rules and will no longer be payable from day 1 if people are unable to work because they are sick or self-isolating due to COVID-19;
• those who are self-isolating due to Covid-19 will also no longer be eligible for Employment and Support Allowance.

From 1st April 2022:

• free testing for the general public will end (although limited free tests will be made available for a small number of “at risk” groups and for social care staff);
• tests will be made available for purchase by the general public on the private market;
• employers will no longer be required explicitly to consider Covid-19 in their health and safety risk assessments;
• the existing “Working Safely” guidance will be replaced with new public health guidance.

Provisions have also been made for the corresponding revocation of the associated legislation and statutory instruments which implemented these provisions at the start of the pandemic.

What does this mean for employers?

Whilst the government intends to provide a new set of public health guidance and to consult with employers and businesses to ensure that this guidance remains appropriate, it has not yet been published.

In its absence, employers must decide for themselves how they intend to manage and mitigate the inherent risks that Covid-19 still present to their workforce and to their businesses.   After all, employers remain under a legal obligation to provide a safe system of work and have a duty of care to protect the health and safety of their employees.   The fact that their risk assessments will no longer need to take account Covid-19 does not mean that it is not, and should not be, a relevant consideration – particularly now the legal obligation to self-isolate and for employees to inform employers of a positive test is coming to an end.

Many employees, particularly those who are clinically vulnerable may not share the Government’s trust in the vaccines and treatments now available and may be reluctant to return to a workplace they reasonably believe could be dangerous to themselves and others  The last two years have already seen a rise in claims for automatic unfair dismissal based S.100 Employment Rights Act 1996 (where employees are subjected to detriment and/or dismissal for leaving, or refusing to return to, the workplace in circumstances which they believe pose a serious and imminent risk of danger to health and safety) - and so  employers will need to manage these employees sensitively and sympathetically, undertaking risk assessments as appropriate and having regard to their obligations under discrimination legislation.

Whilst the easing of restrictions is a relief for some organisations, for many others it raises far more questions than it answers.

Employers, for instance, will need to consider what the risk is to their organisation of staff not self-isolating.  Will they really want those with a positive test, even if asymptomatic, to come to work?  Will they expect staff to continue testing themselves?  If so, is it reasonable to expect employees to pay for tests or will the employer foot the bill?  Even if employers do make tests freely available, how will employers encourage employees to share results with them if the risk of a positive result means staying home with no pay or other income support?    Should the employer reconsider their sick pay provision in light of this?  Do policies and procedures need to be amended as a result? Should employment contracts be updated to provide employers will the necessary leverage and, if so, how will employee agreement be achieved?

These and other factors such as the employer’s industry sector, the age and demographic of the workforce and the size of the workplace (to name but a few), all have an important part to play in informing the ongoing operational and resource- planning strategies to be implemented by employers as they continue to tackle Covid-19.   

We may be about to exit the Covid highway, therefore, but we are still some way from the freedom trail.  Whilst we may have a rudimentary map to get us there, we must still navigate it ourselves in our own way, at our own speed and in our own time.   

If you would like any advice or support with any of the issues raised above, please contact Prettys Employment Team on 01473 232121 or submit an online enquiry or email us via enquiry@prettys.co.uk