How should employers respond to the end of Coronavirus restrictions in England?

By Nicola Smyrl

Partner

24 February 2022

Article Insights

Earlier this week, the Prime Minister announced that all remaining Coronavirus restrictions would end in England.  The Government’s view is that restrictions on freedoms should not be in place for longer than absolutely necessary and that vaccines and other pharmaceutical interventions will form the first line of defence against Coronavirus.

The changes announced include:

• The legal requirement to self-isolate following a positive test or as an unvaccinated close contact of a positive case together with routine contact tracing ceases from 24 February 2022. Self-isolation on testing positive remains advised (but not legally required) until 1 April and further guidance will be issued by the Government in April on the steps that people with COVID-19 should take to be careful and considerate of others, similar to advice on other infectious diseases.
• From 1 April, the government will no longer offer free community Covid-19 testing, including both symptomatic PCR tests and asymptomatic rapid lateral flow tests.
• The Coronavirus adjustments to statutory sick pay (SSP), making it payable from day 1 of a period of incapacity caused by Coronavirus will end on 24 March across the UK. The normal rules, which mean that SSP is not payable during the first 3 days of absence, will apply.

The change in the legal rules does not mean that employers can simply return to working arrangements and practices which applied before the pandemic and there are some tricky issues that all employers will need to grapple within the coming weeks.  Employers will need to find a balance which takes into account the need to start living with Coronavirus in a less restrictive way whilst maintaining a working environment that meets the employer’s obligation to provide a safe place of work.

Both the Government and the Health and Safety Executive (HSE) have advised that consideration still needs to be given to reducing the risks associated with transmission of Coronavirus and that caution should still be exercised.  In particular, employers ought to factor in Coronavirus risks into workplace risk assessments and maintain measures to ensure adequate ventilation, cleaning and hand hygiene as a minimum.

The Government will be updating the “Working safely during Coronavirus” guidance in due course to take account of the recent changes and employers should carefully review and implement this guidance where possible.  The guidance can be viewed here https://www.gov.uk/guidance/working-safely-during-covid-19.

Whether employers should go further than these basic measures will depend on the nature of their business and workforce.  Some businesses may wish to continue asking staff to conduct regular Coronavirus testing and isolate when testing positive or coming into close contact with a positive case, but this approach will need careful consideration.

Once free testing ends, employers will need to meet the costs of any ongoing requirement for regular workplace testing. Thought would also need to be given to whether such a requirement is a reasonable expectation which can be justified by reference to specific risks and the needs of the business.  Taking into account the Government’s change in approach to Coronavirus and the message that we should begin living with Coronavirus in the same way that we do with flu, it may be difficult to justify an ongoing requirement for testing save in exceptional circumstances.

Having a policy that employees should not attend the workplace where they test positive for Coronavirus, have symptoms of Coronavirus or have come into close contact with a positive case may not be controversial in workplaces where the employee is able to work from home.    It will more difficult to ask of employees where they are unable to work from home and this affects their pay.

It is not unusual for employees to attend work with minor illnesses such as colds and many employees will not be prepared to miss work in circumstances where SSP is not payable for the first 3 days of absence.  If employers are considering excluding employees from the workplace due to having Coronavirus symptoms in circumstances where they cannot work from home, consideration will need to be given as to whether or not employees should be supported financially during this period.

It is likely that excluding employees from the workplace when they consider that they are well enough to work could lead to grievances and claims given that there is no legal requirement to isolate.  If businesses are considering implementing their own isolation policies, it will be important to have clear business reasons to justify this.  In the absence of particularly vulnerable staff or customers, this may be difficult to achieve.

Clinically Vulnerable Employees

Employers will need to think about how to approach working arrangements for employees who are clinically vulnerable.  It may be that employers will need to consider making adjustments to the working arrangements of these employees taking into account that the chances of coming into contact Coronavirus are likely to increase.  Employers may need to think about alternative arrangements for such employees such as increased home working.

It is possible that some vulnerable employees will simply refuse to return to work despite the removal of restrictions.  Where continued homeworking is not possible, in these cases, it is important that employers are able to demonstrate the steps that have been taken to ensure that the workplace is as safe as possible.  This would be an important part of being able to show that the requirement to return to work was reasonable and relevant to defending any claims that may arise out of such circumstances.

Next Steps

It would be sensible for employers to use the next few weeks, where testing and isolation is still advised, to consider how they will approach living with Coronavirus in the workplace.  It may be necessary to consider updating policies and procedures which have been in place in the last two years to take account of the change in approach.  It will also be important for employers to carefully communicate with staff about the approach they intend to take.  Ensuring that employees feel confident about the safety of the workplace is likely to be important in moving to a less restricted way of working.

Taylor Walton’s employment law team will keep you updated with developments in this area.  If you require any assistance with the issues raised in this article, please contact the employment team here.

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Please note that the contents of this article are intended solely for general information purposes and should not be considered as legal advice. We cannot be held responsible for any loss resulting from actions or inactions taken based on this article.