Employers’ risk assessments will need to be updated to include the impact of vaccinations and the lifting of legal restrictions from 19 July. In light of this, and the increase in infections seen at the start of the summer, some businesses may be considering implementing a testing policy to encourage employees to take regular lateral flow tests, potentially as a condition of returning to the office. However, mandating testing is not without risk; whilst not as controversial as introducing mandatory vaccination, testing still creates potential legal exposure to unfair dismissal claims and imposes additional data protection obligations on employers, depending on the way in which they intend to process and record health data in connection with any such testing policy.
Employees also have their own statutory duties to take reasonable care of their own health and safety, and that of others, therefore emphasising the need for employers to educate and train staff on policies that they have decided to adopt with respect to return to the workplace.
A failure to comply with health and safety obligations may result in enforcement action brought by the Health and Safety Executive (HSE). In circumstances where serious breaches are identified, the HSE can serve employers with improvement or prohibition notices and/or bring a criminal prosecution against them, depending on the severity of the breach.
A key statutory protection that has been at the forefront of many employers’ minds since the start of the pandemic is that of the right of workers not to be subjected to a detriment for leaving or refusing to return to work in circumstances where they reasonably believe there to be a serious and imminent danger which they could not reasonably avoid. A ‘detriment’ could include not being paid for refusing to go into the office, as well as being excluded from pay rises or other opportunities afforded to those who do travel into the office. To try and avoid liability under this statutory provision, employers should attempt to engage in meaningful dialogue with employees to try to resolve matters in circumstances where genuine concerns are raised. If the employee then acts unreasonably, refuses to enter into dialogue, or rejects reasonable measures put forward by their employer to resolve any such issues, this will then significantly hinder their chances of success in any detriment claim.
It is possible that an employee who is dismissed for refusing to comply with an employer’s instruction to attend the office, or to comply with any new measures implemented as a result of the return to the office (e.g. participating in a workplace testing policy), may bring an unfair dismissal claim. There is not much case law yet in relation to workplace COVID-19 issues; however, based on the reported Employment Tribunal decisions so far, Tribunals have been willing to support disciplinary action in circumstances where employees refuse to comply with COVID-related safety measures, on the basis that the employer is able to demonstrate a clear rationale and that it has clearly communicated that rationale to
Employers will need to tread particularly carefully when considering making vaccination a mandatory precondition of entering the workplace; in addition to the significant discrimination risk of taking this step (as mentioned below), requiring an employee to be vaccinated against their wishes as a condition of providing work could lead to constructive unfair dismissal claims arising from a breach of the implied duty of confidence and trust.
Employers will need to navigate a raft of potential discrimination issues that may arise in respect of a proposed return to the workplace, including, for example, the use of face coverings in the office and implementing a mandatory vaccination requirement. Regarding the former, the use of face coverings by workers and customers is still encouraged in enclosed or crowded spaces; however, whilst employers should support workers choosing to wear face coverings, they should also be mindful of those with disabilities before making the use of face coverings in the office mandatory and adopt a case-by-case approach. Some employees may be exempt and therefore employers will need to explain this to staff and put in place other measures that create a safe environment for the rest of the workforce.
A mandatory vaccination requirement will probably create an indirect discrimination risk, putting certain individuals with a protected characteristic at a particular disadvantage compared with others who do not share that protected characteristic. Some of the key protected groups likely to be affected by the implementation of a mandatory vaccination requirement include younger workers, who may be more cautious of being vaccinated due to the lower risk of hospitalisation and death from COVID-19 and the slightly higher risk of blood clots associated with vaccination; employees with certain disabilities which render vaccination unsuitable; and pregnant employees who may be cautious about being vaccinated, given the uncertainty triggered by the government’s recent backtracking from its previous advice that pregnant women should not be vaccinated. Even if an employer does not choose to mandate vaccination, it should still be alive to the risk of indirectly discriminating against unvaccinated employees; for example, by relaxing COVID-safety measures only for vaccinated employees or only considering vaccinated employees for pay rises or promotions. Business travel is another area to be carefully considered as countries re-open.
Identify and Manage
Employers ought to regularly review government guidance; assess the risks presented to their own workplace, employees, contractors and visitors; and implement any necessary additional controls or measures to mitigate any identified risks. However, following the guidance is not enough – employers’ legal duties will continue alongside, and in addition to, that guidance and must always be borne in mind when making decisions affecting employees’ health and safety at work.
It is of paramount importance for employers to consult with employees on matters concerning health and safety at work; in particular, the introduction of any measure at the workplace which may substantially affect the health and safety of those employees.
Asking staff for their views on suggested measures in connection with the proposed return to the workplace, and trying to reach agreement with those who are particularly anxious about the prospect of re-entering the office, will not only mitigate legal risk, but will also probably uncover issues and prevent future protracted disputes.
Those who are at higher risk of severe illness from COVID-19, and those suffering from mental and physical health difficulties, should be given additional consideration, and employers should support these employees by discussing their individual needs and adopting any necessary precautions recommended by their clinicians and/or occupational health professionals.
Best Practice Recommendations
Employers should take advice on and remain alert to these risks and consider taking the following steps when formalising their planned return to the workplace:
• Communicate with employees – as mentioned above, employers should consult with staff as early as possible about returning to work and what that might look like, including discussions around travel to work plans and any planned adjustments to the workplace (i.e. additional sanitising facilities, one-way systems, and maximum capacity in the office). In the current climate, staff wellbeing is at the top of the agenda for businesses, and employers should ensure that they have adequate support in place for employees and open channels of communication to deal with any concerns or questions that they may have in relation to returning to work and any proposed new ways of working.
• Review and update policies – employers will need to review their policies to ensure that they support any new ways of working that have been introduced as a result of COVID-19; for example, relating to health and safety, sickness absence and homeworking/hybrid working. As an increasing number of employers look to formalise hybrid working arrangements across their workforce, they will need to consider whether their existing homeworking policy is fit for purpose and consider whether their employment contracts need to be amended.
• Deliver training to employees – it will be increasingly important to generate awareness amongst employees of their own health and safety duties and provide training on the new ways of working.
• Inform and encourage vaccination – mandating vaccination may create significant exposure to various employment claims and data protection obligations; however, some employers may choose to inform staff about and encourage vaccination, whether through offering time off to attend vaccination appointments or showing support for vaccination from senior leadership.
• Be flexible and consider individual circumstances – taking a case-by-case approach with respect to concerns raised regarding health and safety associated with the return to work, will certainly assist in reducing exposure to claims; for example, adjusting employees’ hours as necessary to allow public transport users to avoid peak times. It will probably prove beneficial in the longer term for employers to be as flexible as possible in accommodating individual needs, from an internal relations and retention perspective, as well as from a legal and reputational perspective.
There has been a noticeable shift in the responsibility now imposed on businesses to ensure the health and safety of their workforce and third parties entering their premises.
Whilst government guidance is a helpful starting point for employers in navigating the return to the workplace, they must still be alive to and comply with their existing legal obligations and take on the responsibility of applying law and guidance to their culture and particular workplace environment. One would expect that over the coming months, employers will face a raft of employment law issues during the gradual return to the workplace.
Hence, employers will need to carefully consider individual circumstances and recognise that each employee will have had a different experience during the pandemic, which will have informed their attitude towards returning to the workplace and any associated anxieties. Adopting an empathetic approach will likely facilitate a smoother return to work and maintain morale, whilst also mitigating the risk of exposure to legal claims.
If you are an employer and would like to discuss your obligations and considerations for your employees regarding the safe return to the workplace, you have any other questions arising from this article, or for specific legal advice on particular circumstances, please contact our Partner Beth Hale or Associate Pooja Dasgupta, both of whom specialise in employment and partnership issues for multinational employers, senior executives, partnerships and partners.