Welcome all to the July edition of the AdviserPlus newsletter.
In this month’s newsletter, we will explore some of the considerations employers need to be focusing on as employees begin to make a gradual return to the workplace over the summer months, including: vaccination policies and data protection considerations as well as the key considerations required as the furlough scheme draws to a close in the coming months.
Changes to furlough contributions
From 1 August to 30 September the Government will contribute 60% of wages up to £1,875 and you will need to contribute the remaining 20% up to £625 when employees are furloughed (along with NICs and pension contributions).
It would be your choice whether you decide to top up employees’ wages beyond the 80% total whilst furloughed.
Reminder: The Coronavirus Job Retention Scheme is due to end on 30 September 2021.
Employees that have been on, or remain on, furlough may also have questions about how and when they can take their annual leave, which continues to accrue during furlough.
Therefore, you will need to start thinking about the reintegration of furloughed employees, managing levels of accrued untaken annual leave and the management of employees who are reluctant to return to the workplace and their options in terms of disciplinary processes and navigating potential employment claims associated with any such processes, as well as potential headcount reductions and redundancies.
Returning to the workplace
On 12 July 2021, the Prime Minister confirmed the UK government’s plans to lift legal restrictions (please see local variations for Wales, Scotland and Northern Ireland) from the 19 July and remove the government’s instruction to work from home where you can. He does not expect that the whole country, however, will return to their desks from this date and are setting out guidance for business for a gradual return over the summer. There will no longer be legal limits on social contact or social distancing, or mandatory face covering requirements except in certain specific settings (such as healthcare settings).
Employers should therefore be ensuring their workplaces are “Covid-secure” and risk assessments have been conducted in line with the UK’s Health and Safety Executive’s regularly updated guidelines which are scheduled for further review on 19 July. Practical measures to be place will vary depending on the nature of the workplace and industry-specific guidelines, but employers may need to (or which to) produce policy documents to outline protocols covering meetings, hand washing, mask wearing, shielding and self-isolation in the event of exposure to Covid-19. It is worth noting that although the government has removed some specific legal restrictions businesses still have an overall responsibility to minimise risk to their employees and customers.
In terms of the practical logistics of a return to the workplace, employers should consider whether they wish to continue flexible working arrangements that may currently be in place for their workforce including working from home, the rotation of teams with allocated days to attend the workplace and even specifying arrival and departure times to avoid “bottle-necks” in reception areas. Business may even decide to keep social distancing measures in place. UK employers have a duty to consult with employees on matters concerning health and safety at work so will need to engage with their workforce and any relevant unions in good time in advance of a return to the workplace.
The UK government’s Department of Health and Social Care has said that it is aiming to have offered a Covid-19 vaccination to all adults in the UK by the end of July 2021, however, the vaccination is not mandatory. In the Prime Minister’s statement on the 5 July he confirmed that the government plans to recognise the protection afforded to fully vaccinated individuals in relation to self-isolation requirements upon returning from travel abroad or contact with an individual who has tested positive for Covid-19.
For employers, this brings into question a number of considerations:
Do you introduce a voluntary vaccination policy or vaccination as a contractual obligation or pre-requisite for employment for new recruits?
UK Health and Safety legislation requires employers to take reasonable steps to reduce workplace risks, and therefore some employers will be of the view that requiring (or encouraging) the vaccination is a reasonable step to take towards protecting their workforce from the risks of Covid-19 in the workplace. This assessment, however, is likely to depend largely on the nature of the work being done, the workforce and the nature of the workplace.
Proposed amendments to the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 (SI 2014/2936) will make it mandatory from October 2021 for anyone working in a regulated care home in England to be fully vaccinated. This includes all workers, agency workers, independent contractors and volunteers who may work on site. The government is currently considering whether this should also apply to other healthcare and domiciliary care settings.
Another consideration is in regard to those colleagues who refuse or maybe reluctant to have the vaccination. Where employees decline vaccination, employers will need to consider: (a) do you need to take additional steps to protect the health and safety of those unvaccinated, (b) whether disciplinary action (including dismissal) is an option and (c) how best to manage the risk of potential employment claims.
There will also be the requirement to consider any implications to data protection remembering employers who collect information relating to whether their employees have been vaccinated will be processing special category personal data, which means they must comply with the requirements of the UK data protection laws. As such, employers processing vaccination data will need a lawful basis to do so under Article 6(1) of the UK GDPR as well as meeting one of the conditions for processing under Article 9. Furthermore, any such processing must be done in a transparent way so relevant privacy notices will need to be updated and employers must ensure that they also take account of data minimisation and data security obligations. Specifically, they should ensure they do not retain the information for longer than necessary or record more information than they need for the purpose for which it is collected (i.e. protecting the workforce), as well as ensuring any such data remains accurate and safe from data breaches.
The UK government has introduced a Covid-19 vaccination status certification system known as the “NHS COVID Pass”. The Pass can be downloaded onto the NHS App on an individual’s smartphone and be used within the UK and abroad by those who have received a Covid-19 vaccination to demonstrate their vaccination status. In his 5 July 2021 announcement, the Prime Minister confirmed that a Covid-19 vaccination certificate will not be legally required as a condition of entry to any venue or event in the UK, but businesses may make use of the NHS Covid Pass certification if they wish to do so. Employers may therefore ask their employees to show their NHS Covid Pass as a condition to returning to the workplace or participating in certain activities, but to the extent they do so, the employment and data privacy issues noted above will need to be considered in advance to ensure you do not expose your business to risk of claims.
UK government guidance still encourages employers to offer regular (twice weekly) testing to their on-site employees to reduce the risk of Covid-19 transmission in the workplace, although such testing programs are voluntary. Employers who propose introducing Covid-19 testing for their workforce will need to consider the risks and implications of doing so, including: (i) the terms of any policy around Covid-19 testing, including whether testing will be mandatory or voluntary and the extent to which they need to consult with the workforce ahead of introducing such policy; and (ii) how to manage employee reluctance to submit to testing, and whether disciplinary proceedings will be appropriate or feasible, taking into account the risk of claims from their employees.
Case Law Updates
There have been two more reported employment tribunal cases looking at whether dismissals are automatically unfair under section 100 of the Employment Rights Act 1996 where individuals are dismissed for taking steps to protect themselves or others from a serious and imminent threat to health and safety. Although in both cases the tribunal was satisfied the claimants reasonably believed that COVID-19 posed a serious and imminent danger to their health and safety at the time, the cases turned on whether the employer acted reasonably in trying to accommodate concerns and reduce the risks.
In Accattatis v. Fortuna Group, the employer acted reasonably in suggesting an employee, who did not want to commute to work, take holiday or unpaid leave in circumstances where working from home was not feasible and furlough inappropriate, and so did not unfairly dismiss him when he refused either option. In contrast, in Gibson v. Lothian Leisure the employer had a ‘shut up and get on with it’ attitude when an employee raised concerns about the lack of PPE or COVID-secure measures prior to returning from furlough, in circumstances where he had concerns for his medically vulnerable father. It is important to note that these two cases were from very early in the pandemic, but the examples still serve as a useful reminder that the reasonableness of an employer is significant when they are faced with employees who are reluctant to attend the workplace.
Note: The above guidance was correct at the time of writing this article on 16/07/21 however, you need to be fluid in your approach to coronavirus as the policy and government guidance is changing rapidly. We therefore recommend you regularly check the government official guidance on the gov.uk website and news for updates or contact us if you have any specific questions.
If you have any questions regarding the content of this newsletter or would like more information to support your business with the changes, please get in touch.