What Does "Freedom Day" Really Mean for Employers?
Despite all the propaganda, it is unlikely that in years to come 19 July 2021 will be marked, remembered and celebrated as Freedom Day. Many have raised concerns that the easing of restrictions is coming too soon, when not enough people have received a vaccination, the thresholds for herd immunity have not yet been reached and the number of cases of the Delta variant are increasing. Whilst we should, of course, remain positive about the fact that we are now able to do more activities than before, care will need to be taken, not least when it comes to returning to work.
What is changing?
On 12 July 2021 the government announced various relaxations to the current restrictions in England from 19 July 2021 that will impact on employers and workplaces including that:
- All businesses may open with no restrictions on the number of people attending events, although some venues may choose to make use of the NHS Covid Pass;
- Social distancing will no longer be mandatory in all but the most limited circumstances;
- There will no longer be a legal requirement to wear face coverings, but instead such coverings are recommended in crowded and enclosed spaces where individuals encounter people they usually don’t meet. This is likely to apply on public transport and it is interesting that Transport for London have confirmed face masks will still be required on the Tube;
- There will no longer be a formal instruction to work from home but instead the government is recommending a gradual return to work over the summer. Further guidance on what businesses can do to facilitate a safe workplace is expected;
- Track and trace will still be utilised and there will still be a requirement to self-isolate where an individual is notified through the Track and Trace App or where they come into close contact with someone who has tested positive for COVID-19;
- Those who are fully vaccinated will not have to self-isolate when returning from a country on the amber list but anyone not fully vaccinated returning from an amber list country or anyone returning from a red list country will still need to self-isolate.
How does this impact employers?
Do these easing measures therefore mean that employers can simply get everyone back to the workplace without further thought? The simple answer is no.
Freedom Day has absolutely no impact on the duty imposed on employers under the Health and Safety at Work Act such that employers still have a legal responsibility to protect their employees and anyone else coming onto their site from risks to health and safety. The broad effect of Freedom Day is therefore to transfer responsibility for COVID-related risk management from the government to individual organisations.
What actions should employers take?
(a) Risk assessments and implementing measures to reduce risk in the workplace
The steps which an employer should take in order to provide a safe place of work will depend on the particular workplace and work that is performed there.
Employers should carry out a risk assessment and decide how it is able to keep its employees safe, and this will inevitably mean going above and beyond the strict legal requirements. The real question will be by how much.
As a very general view, protective measures that are easy to maintain (e.g. access to hand sanitising gel, regular cleaning) should stay in place. However, as part of a risk assessment, employers should also consider:
- Should social distancing remain in place? If so, in what areas of the workplace? The reality of still having to self-isolate means that retaining some level of social distancing will be essential for those organisations where home-working is not practical in order to avoid the potential for large portions of the workforce to be out of the workplace self-isolating at any one time;
- Should mask wearing be encouraged or mandated? Again, it is likely that some mask wearing will be advised, such as when moving around communal areas, to reduce the risk of spreading the infection and to protect/reassure more vulnerable members of the workforce;
- What testing should remain in place for those attending the workplace? If testing is already required, it is likely to be sensible to retain this as part of the measures to reduce risk of infection in the workplace;
- Should evidence of vaccination be required for those attending work? Whilst again this could well be a reasonable step to take to reduce the risk of infection in the workplace, employers will need to bear in mind that currently just over half of the UK population has been vaccinated, and many of the younger members of the workforce will have only had the opportunity to have their first jabs. This is likely to remain the case until at least around September and so requiring evidence of vaccination could well give rise to discrimination claims on the grounds of age or disability where someone is advised not to have the vaccine because of underlying health conditions.
Employers will need to remember that there are those within their workforce who will be more susceptible to COVID-19 than others, and who may or may not have had two vaccinations. The employer owes the duty of a safe workplace to each individual member of its workforce and must consider everyone when formulating its next steps. This is likely to mean retaining more of the current measures notwithstanding the removal of legal requirements to have them in place.
Employers should consult with employees and any representative bodies regarding the outcome of risk assessments and the proposed measures to reduce risk to ensure buy in from all. This will be critical if a two-tier workforce of more and less cautious employees is to be avoided.
The pandemic has had an impact on a great number of aspects of the employment relationship, but the most notable is the shift from the workplace to homeworking – what was once the exception swiftly became the rule in March 2020. Homeworking was becoming more frequent prior to the pandemic but for most employees it usually took the form of the odd day working at home. The employment contracts of most employees will have stated that their office or workplace was their contractual place of work.
The acceleration of the pandemic meant that speed was of the essence when it came to mandating home working. However, it is unlikely that this could be argued to have created a contractual right to work from home given the instruction from the government meaning employers and employees had no choice in the matter.
Given that the ‘work from home’ instruction will be removed from 19 July in England and the government recommendation that there is a gradual return to workplaces over the summer, employers face a decision as to where people are expected to work from and there has been much in the press about adoption of hybrid working patterns. Whatever is decided, the key point is communication.
If an employer simply continues to allow homeworking following 19 July without comment, it is possible that after a reasonable period employees could argue that their contractual place of work has changed to their home, and that forcing them back to the office at some future date constitutes a fundamental breach of contract, giving rise to a constructive unfair dismissal claim. If employees are not to come back to the office straight away it may be prudent to set out a government-style ‘roadmap’ as to the organisation’s expectations on returning to work.
Freedom Day represents an opportunity for organisations to nail their colours to the mast in terms of what they represent in what is by no means a post-COVID world. It is inevitable that some organisations will throw caution to the wind, but most are expected to adopt a more cautious approach and see how the land lies in the next few months before making any significant decisions.
Freedom Day is therefore a chance for organisations to demonstrate that they are continuing to take a balanced and measured approach to the pandemic. While the significant easing of restrictions does allow organisations to repair some of the damage of the last 15 months, if organisations have learnt anything since the start of the pandemic it is that their workforces are more flexible and resilient than they realised. It would be wasteful to lose sight of this new knowledge in a misguided attempt to ‘return to normality’.
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