This guide will help you plan your ongoing return to the workplace as lockdown restrictions ease
Q: What are the rules or guidance now that restrictions have eased from July and August 2021 onwards?
From 19 July in England all remaining limits on social contact and social distancing are removed. Rather than rules, from 19 July the approach in England to COVID-19 precautions is largely based on individual choice. Overall, the guidance has a new emphasis, moving away from making the workplace ‘COVID-secure’, towards reducing and minimising risk.
From 19 July all businesses in England can reopen, and councils lose their powers to enforce COVID rules meaning that:
- Face masks are no longer legally required (although some shops and transport operators will still require masks as the government still expects and recommends them in crowded and enclosed spaces)
- The 2 metre (or 1 metre plus) social distancing rule ends (except in some places for example hospitals and passport control when entering)
- All legal restrictions on numbers meeting indoors and outdoors are removed
- The guidance requiring people to work from home where possible is removed, although employers are required to plan a safe return to the workplace. The government advises that working from home continue to allow a gradual return over the summer at the employer’s discretion
- Nightclubs can reopen
- Bars and restaurants are no longer table service only and can choose to follow check-in requirements or table service rules but these are not mandatory
- There is no limit on the number of visitors to care homes
- Theatres, sports events and concerts no longer have capacity limits
- COVID-status certification is not a condition of entry for visitors to any internal venue unless the venue chooses to adopt that system
- All restrictions are removed for weddings, funerals and other life events
- Guidance recommending against travel to amber list countries is removed
- Under-18s and fully vaccinated adults do not have to self-isolate after visiting green or amber list countries, although those returning from some places (for example France) must still quarantine for 10 days.
The government identified has identified areas of England where the Delta variant is spreading quickly. In any of these areas employers and individuals should read local COVID-19 information and advice. This could mean continued face coverings in busy places, meeting friends and family outside, continuing social distancing by remaining 2m apart from people outside your household, as well as hand hygiene and cleanliness measures.
Obviously, there are ongoing requirements to self-isolate for those who test positive or who have been contacted by NHS test and trace. Employers should ensure that those staff do not attend the workplace. The following rules still apply:
- The need to self-isolate if someone tests positive for coronavirus.
- The need to self-isolate for those in close contact with someone who tests positive. From 16 August, under-18s and those who have received a second COVID vaccination at least 10 days before the contact no longer need to isolate.
- From 16 August most COVID restrictions in schools ended.
- People are encouraged to continue to meet others outside where possible.
- Border restrictions remain in place, depending on the status of the departure country to help manage the risks of new variants arriving.
- Although face coverings are longer legally required, the new guidance will suggest that people might choose or offer to wear one in enclosed and crowded places (such as crowded shops, hospitality venues or on crowded public transport) or where you come into contact with people you don’t usually meet.
- People must carry on working from home in Scotland from 9 August onwards.
- Masks remain compulsory in certain public settings including public transport and in shops.
- Face masks will also be worn during lessons by secondary pupils and schools will have access to CO2 monitors to ensure appropriate ventilation. Both pupils and school staff must take lateral flow tests before they return, followed by regular testing in the future.
- Schools retain a one-metre social distancing rule for the time-being, which will be kept under review by the Scottish Government.
- Customers in pubs or restaurants must still provide contact details and wear face coverings when not seated.
Foreign travel is permitted for many countries which are classified as green, amber and red on a similar basis to the English system and a review of the categories takes place every four weeks. Hotel quarantine is still required for people returning from 'red list' countries. Self-isolation for those from amber list countries ended on July 19, provided that travellers have received both doses of a vaccine through the UK's vaccination programme and a PCR test is conducted on the second day after arrival.
For those who have not been travelling, Guidance is expected on allowing fully vaccinated people canto avoid self-isolation after close contact with positive cases. if they receive a negative PCR test result. In addition, limits on the size of gatherings are lifted therefore large-scale events can take place.
Young people under 17 can end self-isolation if they test negative, while those under five years old are encouraged but not required to take a test.
The government announced that an app is being developed to allow for certification for those travelling abroad and COVID status certification for access to certain higher risk venues in future.
In Wales there is also an easing of restrictions with a move to Alert Level 0 from 7 August which means most of Wales' remaining COVID restrictions have been lifted as set out below, although some restrictions remain in place:
- Face coverings will continue to be required in most indoor public places including shops and in healthcare settings but will no longer be required in hospitality settings such as restaurants and cafes.
- Unlimited people can meet indoors or outdoors including in private homes, public places, or at events.
- All businesses can open to the public and workplaces must carry out a risk assessment and continue to take reasonable measures to minimise the risk of exposure to coronavirus.
- Workplaces have more flexibility about which reasonable measures to take to minimise the risk of the virus depending on their risk assessment and their specific circumstances.
- All premises can therefore open, including nightclubs and other entertainment venues subject to risk assessments.
- Self-isolation and testing in Wales. People must continue to isolate for 10 days if they have Covid-19 symptoms or a positive test result.
- Adults who are fully vaccinated and children and young people under the age of 18, no longer need to isolate if they are identified as close contacts of someone with coronavirus.
- Everyone identified as a contact of a positive case must have a PCR test on day two and day eight, whether they are fully vaccinated or not.
- People fully vaccinated in the UK and under-18s travelling with them do not have to quarantine after visiting an amber list country.
- Staff working with the vulnerable, particularly health and social care staff, must have a risk assessment and daily lateral flow tests.
- In Northern Ireland advice remains to work from home where possible unlike England where people are no longer being asked to work from home. Health officials in Northern Ireland advised keeping the guidance in place. Stormont ministers urge employers to be flexible, and adhere to public health advice as much as possible.
- Social distancing is removed for outdoor activities but indoor premises such as restaurants and workplaces are still required to comply with at least 1m social distancing.
- Face coverings remain mandatory on public transport, in shops and a number of other settings - unless people are exempt. By contrast they are no longer mandatory in England.
- Fully-vaccinated close contacts of people with COVID-19 no longer need to automatically self-isolate provided that two weeks have passed since they received their second dose of the vaccine. They must take a PCR (Polymerase Chain Reaction) COVID test on day two and eight of the process. People who test positive must self-isolate.
- 10 people from three households can meet inside a private home
- Unrestricted numbers of people can meet in a private garden.
- Nightclubs in Northern Ireland remain closed but outdoor raves are allowed.
In schools the system of bubbles where children only mix within a fixed year or class group are removed. Face coverings remain mandatory in schools for post primary pupils when they return to classrooms for the first six weeks of term, subject to a review.
As the working from home guidance is removed employers can determine whether staff continue working from home or return to the workplace. Although there is a shift towards individual choice for both people and businesses, there is extensive guidance for employers on risk management measures to put in place.
Many employers have already considered their plans for continued home working or bringing staff back to the workplace. Many employers who can are opting for a hybrid working, with staff being encouraged to work from home for two or three days a week, for example. For further information about working from home see our Q: What is the position regarding working from home in England from 19 July onwards?
Q: From a health, safety and well-being perspective, what are the main aspects of the guidance about managing a return to the workplace?The new ‘working safely’ guidance provides precautions that employers can take to manage risk and support their staff and customers. The overall gist of the guidance is that employers have a high degree of responsibility to care for employees and customers, which also applies during during the pandemic. The government guidance suggests that many of the previous precautions should continue, despite the voluntary language used. There are numerous reminders of how employers’ normal legal obligations include a duty to manage risks for all of those affected by their business. Measures include carrying out health and safety risk assessments and taking reasonable steps to mitigate risk.
The six pieces of guidance for various sectors of the economy cover a range of different types of work including all offices, factories and labs. Separate guidance covers construction and other outdoor work, events and visitor attractions, hotels and guest accommodation, restaurants, pubs, bars, nightclubs and takeaway services, shops and similar environments and close contact services, including hairdressers and beauticians. Employers may need to use more than one of these guides as necessary.
The previous guidance on social distancing and working from home etc is replaced with the following priorities:
1. COVID-19 risk assessments
The new guidance emphasises the role of risk assessments in ensuring a safe return to the workplace process. See our Q: What does the government advice say about COVID-19 risk assessments? below for more.
2. Adequate ventilation
The government has placed more emphasis than it did previously on ventilation, also referring to the advice on air conditioning and ventilation on the HSE website. Ventilation now seems to have as much, if not more, emphasis than social distancing. As well as good ventilation, limiting the number of face-to-face contacts and reducing the number of people in an area is advised.
Employers with air-conditioned buildings or sealed window units could have the system checked and monitored, measuring air flow and fresh air. Most air conditioning systems do not need adjustment if they draw in a supply of fresh air. CO2 monitors can be used to indicate how well-ventilated workplaces are. HSE information suggests that CO2 monitors have limitations and test results can be misleading and are time-limited to the time of the test.
Some employers may be able to reduce occupancy levels or adopt social distancing to help ventilation issues. For further information on this see our Q: Do employers have to maintain a two metre (or one metre) social distancing between staff?
Cleaning tips include reviewing cleaning procedures and providing hand sanitiser as well as frequent cleaning of work areas, objects and surfaces and equipment between uses including door handles and keyboards. Using usual cleaning products is fine but there is special guidance on cleaning after a confirmed case of the virus.
Extra non recycling bins may be needed to dispose of single use face coverings and PPE. Employers should continue to use signs and posters to remind employees about hand washing techniques and hygiene standards. Guidance on signage also suggests continuing to remind employees to maintain overall hygiene standards and wear face coverings in crowded and enclosed settings.
4. Turning away people with COVID-19 symptoms
A new aspect is that businesses are encouraged to turn away people with COVID-19 symptoms. This will be difficult for employers to determine as the initial symptoms of a cold and COVID-19 may be similar. It remains an offence to allow a person who should be self-isolating to come to work.
5. Enabling check in using the NHS COVID-19 App
Checking in using the NHS COVID-19 pass is not generally compulsory after 19 July. The app is available to individuals who are fully vaccinated, have tested negative (using a PCR or lateral flow test) in the previous 48 hours, or who have natural immunity because they had a positive PCR test in the previous six months.
The extensive guidance for restaurants, pubs etc says that the government will work with organisations that operate large, crowded settings (for example, nightclubs) to use the NHS COVID-19 pass as a condition of entry. Collection of customer contact details is no longer a legal requirement in most hospitality venues. It is thought that other hospitality businesses generally can opt in to using the pass, not just venues that operate large crowded settings, and that it can be used for staff as well as customers. Businesses can choose to display a QR code to enable people to check in to a venue and can choose to record contact details for people who want to check in but do not have the app. This is encouraged to support NHS Test and Trace. Businesses do not have to ask people to check in, or turn people away if they refuse.
6. Communication and training
The new guidance mentions consultation both with workers and trade unions – for further details concerning communication see the Q: What steps should employers take before employees return to the workplace now that restrictions in England are lifted?
Whilst employers should take account of the guidance from the government summarised above, they should also consider the general law.
There is different guidance for schools, further education and childcare providers. Scotland, Wales and Northern Ireland are giving different advice, so employers should ensure they keep up to date with different guidelines in different areas.
Q: What steps should employers take to manage a return to the workplace now that restrictions in England are lifted?
Although employers can decide to switch to an immediate full time return to the workplace, this is inadvisable from both an employee relations and risk point of view. The government have said they 'would expect and recommend a gradual return over the summer' but this is only for employers who choose to do this. The government advice emphasises that because new COVID-19 variant is spreading in some parts of England there may be additional regional advice. Employers therefore need to follow the guidance after 19 July combined with being vigilant; in certain regional areas they may need to implement full home-working again at short notice.
There will inevitably be employees, including those who are either mentally or physically extremely vulnerable, who have anxiety about returning to the workplace or using crowded public transport whilst COVID rates are rising. Some staff may seek to remain working from home or may refuse to return to the workplace.
Employers who have staff returning on a full time or hybrid basis need to address many issues, including staff communication and consultation about plans to return, training, updated and thorough coronavirus specific risk assessments, health and safety policies and measures to provide a safe working environment.
Employers should attempt to reduce risk for employees being exposed to coronavirus, keep their options open and have the capability to adapt plans as the situation and advice evolves. Employers should consider the following.
Compliance with current government guidance
This involves following the workplace safety guidance (not rules) covering a range of matters such as vaccination, testing, ventilation, cleaning, and distancing. Although much of the guidance is optional the government does advise continued wearing of masks in enclosed and crowded places or where they encounter people they don’t usually meet. For further details see our Q: What are the main aspects of the new workplace safety guidance?
Review and update risk assessments
Employers should review and update thorough coronavirus specific risk assessments considering the new guidance. See our Q: What does the government advice say about COVID-19 risk assessments?
Written health and safety policy
Employers should review their written policy on health and safety. For those employers with fewer than five employees, there should still be a health and safety policy, although it doesn’t have to be written down. The arrangements section in the policy should say how the employer will meet its commitments, including elimination or reduction of the risks and hazards in the workplace.
Take steps to comply with health and safety obligations
From 19 July matters will be left to employers’ discretion but the government has emphasised that pre-existing laws and duties require employers to protect the health and safety of employees against many risks including coronavirus. A significant responsibility was placed on employers before the pandemic and the government have made clear that this responsibility extends to reducing risk from all the coronavirus variants.
Employers have a contractual duty to take care of employees’ health and safety and other statutory duties too including:
- Implied duty to protect the health and safety of all employees
- Duty to look after both the mental health and physical health of employees
- Duty to protect members of the public, clients, customers and contractors
- Duty to manage the health and safety risks from the workplace itself, including ventilation and air conditioning systems. Other workplace issues include cleanliness and washing facilities
- Provision of safe systems of work possibly including provision of PPE
- Information and training (including reminding employees of their responsibilities in meeting health and safety requirements).
Employees could insist on staying at home, refuse to return to the workplace or could choose not to do certain tasks if they feel employers have not taken appropriate measures to provide a safe environment. Employers have a duty to protect the health and safety of employees, and under the Employment Rights Act (s.44), employees are further protected if they refuse to return to work because they reasonably believed there was a serious and imminent danger to themselves or others. Coronavirus classifies as a danger and is a potential reason not to return to work. Employers will need to keep evidence to show they attempted appropriate measures to provide a safe working environment.
If there is a significant workplace return employers should decide upon the approach towards reluctant returners. There may be flexible working requests for continued home working (see our Q: What if our people don’t want to come back - or have anxiety about travel on public transport?).
Under the Health and Safety at Work etc Act 1974, employers must provide appropriate information, instruction, training and supervision to ensure the health and safety of employees. Further legislation requires training following exposure to new or increased risks, which includes coronavirus, and consultation with employees or their representatives on issues relating to health and safety.
Decide upon continued or revised plans for homeworking, hybrid working or a full return
The government’s advice clearly envisages hybrid forms of working and in some areas where the Delta variant rates are high, continued home working may be preferable.
Increased flexibility about how, when and where people work may therefore be preferable, rather than an abrupt return. As many staff have worked predominantly from home for nearly 18 months a hybrid pattern or phased return gives workers time to adjust. Our guides on planning for hybrid working and supporting returned furlough workers provides more detail.
More information is available in the above Q: From a health, safety and wellbeing perspective, what are the main aspects of the guidance about managing a return to the workplace?
Vaccination certification or testing
Employers need to decide whether to adopt a system for checking vaccination status and continued testing. If either a voluntary or mandatory scheme is adopted employers will have to comply with data protection obligations. There can be risks of discrimination claims if blanket policies are adopted so individual reasons for resistance to testing or vaccination have to be taken into account (see our testing and vaccination Qs for more detail).
Employers should consult and communicate openly with employees and obtain written agreement to any contractual changes. Listening to employee’s views will ease employee relations during this difficult transitional time. Employers should consult with their employees about any return to the workplace and the proposed new infection control arrangements; good communication is essential. Employee engagement will ensure teams feel more confident about returning.
Employers should also discuss any issues with individual employees before any physical return to the workplace. This should be part of a broader re-induction process that takes on board any adjustments or ongoing support that people may need.
Employers who require additional health and safety measures will find it easier to achieve compliance if there is full consultation. For further detail see Q: What should I do if an employee refuses to follow our COVID safety measures because they say the government has lifted all restrictions?
Employers may wish to check their employer's liability, management liability or directors and officers (D&O) insurance cover as well.
If employers fail in their responsibility to provide a safe working environment and there is a genuine health and safety risk from being required to attend work, this can amount to a breach of the duty of care and of the implied term of mutual trust and confidence. This links to potential constructive unfair dismissal and disability discrimination claims. If employees contract coronavirus as a result of inadequate steps being taken there could also potentially be personal injury claims against the employer.
Even if employers follow all of these steps there will be some resistance to aspects of employers’ proposals, and potential litigation, so employers should ensure that health and safety, whistleblowing and grievance (and disciplinary) policies and processes are up to date. There may be some complaints about workplace safety especially if employees have tension between them due to differing stances on mitigating risk.
Employers should always pay particular attention to anyone who is at higher risk (especially pregnant employees and anyone who is extremely clinically vulnerable) and discuss reasonable adjustments with disabled employees.
Employers who comply with their duty of care, conduct thorough risk assessments, and implement safety measures, will be in a stronger position to ask employees to return to the workplace. For further details on staff who are reluctant to return see our other returning the workplace questions including Q: What if our people don’t want to come back - or have anxiety about travel on public transport? and Q: Where does liability sit if employees catch coronavirus at work or on the way to work?
Please note the devolved administrations in Scotland, Wales and Northern Ireland have different restrictions so employers should ensure they are aware of restrictions in place for all work locations.
For further advice see our see our Returning to the workplace guide.
Q: What does the government advice say about COVID-19 risk assessments?
The new government guidance emphasises that risk assessments have a crucial role in ensuring a safe return process. The guidance seems to include COVID-19 as another workplace hazard that must be managed with other hazards.
All employers in England should follow government and Public Health England advice guidance on how to manage workplace risk. Employers should always keep risk assessments under review and keep evidence that safety measures were implemented and complied with. They should also consider who they are asking to come into work and if it’s safe to so. This will entail considering the government’s specific guidance to employers covering measures such as testing, ventilation, increased workplace cleaning, changing office layouts, keeping a safe distance at work, supplying safety equipment etc. Employers who have complied with their duty of care, conducted thorough risk assessments, and implemented safety measures, will be in a stronger position to ask employees to return to workplace.
You may wish to refer to the Health and Safety Executive website for more information.
Employers will already have renewed risk assessments in the earlier stages of the pandemic and should do so again to consider new guidance, increased scientific knowledge and developments such as the impact of vaccination and coronavirus variants.
The end goal is to adopt appropriate control measures which reduce or remove the risks of contracting COVID-19 when returning to the workplace. The risks around visitors entering the workplace, such as customers, should be assessed too as there is also a legal obligation to ensure their health and safety.
It may be safer in the short term to retain existing control measures such as social distancing even though this can be difficult to implement. For example, employers may decide that only fully vaccinated employees or employees with a negative lateral flow test should attend the workplace, or retain social distancing as a key control measure.
Certainly, following the HSE guidance (as it is updated) is sensible. Any employees with an axe to grind may be able to show a breach of employers’ duties of care if there is a significant departure from official guidance. Employers need to keep risk assessments under review, for example risk assessment changes as staff start to have a significant time lapse since their vaccinations, especially if boosters have not been rolled out.
Q: What should I do if an employee refuses to follow our COVID safety measures because they say the government has lifted all restrictions?
If an employee refuses to follow their employer’s COVID safety measures for any reason, perhaps because they say the government has lifted all restrictions, employers need to engage with those employees. The first step is always to have a sensible conversation. Matters needing explanation include the current rate of infections in the area, the detail and nuances of the government’s advice plus an explanation of the employer’s other legal obligations in the workplace. The government clearly state that the pandemic is not over and precautions still need to be taken.
The government have now replaced the previous material on working safely with six pieces of guidance for various sectors of the economy. The new advice generally removes social distancing requirements and leave the wearing of face masks (leaving this as a matter of personal choice) but still recommends these precautions in crowded settings. For example, the government is still emphasising the importance of ventilation and the World Health Organisation still advises masks should remain mandatory on public transport, in shops and in crowded places. The government have advised that they expect and recommend that people wear face coverings in crowded areas such as public transport. Some airlines have confirmed face masks will still be compulsory after 19 July and some transport operators are making mask-wearing a condition of travel.
Both employers and individuals may interpret the changes differently and so employers must explain any measures that they decide to implement in line with the latest government advice.
Employers can also explain to staff that other businesses are retaining some measures. Some hospitality businesses have already indicated that staff may be encouraged to continue to wear masks and will be cautious as restrictions are eased. Depending upon the final government advice. Some retail businesses may retain COVID safety measures in busy public shop areas by encouraging customers to wear masks. For some employees, going from full mask wearing to removal of all precautions is too sudden, and may exacerbate anxiety. Phasing out precautions over a longer period (depending on local case numbers) may be sensible, especially as some staff may not have had their second vaccination.
Another factor employers may wish to explain is that the people who received both vaccinations at an early stage will all become less protected at different times, depending on how much time has lapsed since their first and second vaccinations. The first people to be vaccinated will at some stage potentially start to have reduced protection until boosters have been given.
Employers’ legal duties
The health and safety of employees in the workplace remains of paramount importance even if employees are vaccinated. Employers’ legal duties continue alongside any government guidance. Staff could still catch and transmit the virus even if vaccinated, and a percentage of vaccinated people can still become ill. Against this background both employers and employees have independent statutory duties under the Health and Safety legislation to take reasonable care for their own health and safety, and that of employees.
Employers should emphasise to employees they have duties under the Health and Safety at Work Act 1974 (and ancillary regulations) which mean they have to control the risk of harm to visitors, customers, clients, suppliers, on-site contractors or other workers or members of the general public as well as employees.
It is therefore up to employers to decide which practices and policies they wish to adopt and educate and train staff accordingly. Employers must assess the risks presented by their workplace and may need additional measures, especially for higher risk groups. Advice from Public Health England is still that employers should ensure that the workplace is safe, hygienic, ventilated and that there are measures in place to protect employees, as far as possible, from the risk of contracting COVID-19. Advice is available from HSE on making your workplace COVID-secure during the coronavirus pandemic.
Ultimately all employees must obey employers’ reasonable instructions. If an employee refuses to follow an employer’s coronavirus safety measures because they say the government has lifted all restrictions, they could be breaching this duty to obey reasonable instructions. Extreme examples of disobedience may be a fundamental breach of contract entitling the employer to dismiss, having followed appropriate procedures. Although, obviously, dialogue, explanation and employee engagement are preferable to commencing disciplinary proceedings with a view to dismissal.
Employers should keep checking for the latest government advice and continue to communicate with employees about what these changes mean.
Q: What is the position regarding working from home guidance?
The broad national government advice in England is that people are no longer required to work from home if they can. The government has said it would expect and recommend a gradual return to the workplace over the summer. In Scotland, Wales and Northern Ireland employees are advised to continue to work from home.
Employers in England wishing to implement a wholescale return to the workplace are therefore now in a stronger position to arrange this, however the situation is not clear cut. There appears to be additional advice for employers in areas of England where the Delta variant is spreading fastest. So, the working from home advice does not appear to be entirely abandoned. In some geographical areas the government appears to be warning that people should continue to work from home. Employers should be ready to roll back any loosening of restrictions at short notice.
Although the government position appears to have shifted to advice rather than legal requirements the government also emphasise that employers must honour their pre-existing legal duties. Employers must take care of employees’ health and safety; this could include continued home working where possible.
The government guidance states that employers and employees should discuss working arrangements to facilitate working from home, including providing suitable IT and equipment to enable remote working.
A phased return to the workplace could involve measures such as cohorting and staggered start times to help employees avoid busy times and routes on public transport. You can refer to our guide on flexible working measures for more information on staggered shifts.
Alternatively, employees could only be required to return once fully vaccinated. Hybrid models may involve staff only attending the office on one or two days a week. The government expressly states that ways of working have shifted through the pandemic, and employers are looking at future hybrid models which include an element of home working.
The government says that employers should:
- consult with staff on any health and safety measures put in place to reduce the risk of COVID-19 spreading;
- discuss longer term plans and the timing of any phased return with the affected workers and also with employee representatives;
- ensure workplace risk assessments and address measures for all workers coming into the place of work;
- take action to manage the risk of COVID-19 spreading, in line with the guidance.
In areas where virus rates are rising then working from home advice may need to be reinstated. This applies even if staff have been vaccinated against COVID-19. To help protect employees, employers in areas where the rates are rising may need to facilitate continued home working even for vaccinated employees.
This is because the vaccines reduce the likelihood of severe illness, but no vaccine is completely effective. Employers should continue to take recommended precautions even for those who have received the vaccine.
In addition, those who received vaccines in the first round of vaccination will soon be reaching a point where the immunity from the vaccine is potentially reduced and a booster is required. As boosters are not yet available employers can have no guarantee that some of the vaccinated staff will not suffer significant symptoms from the virus.
Clinically extremely vulnerable employees
For clinically extremely vulnerable employees there may be stronger reasons to continue working from home in the short term especially if rates are rising.
Q: Do employers have to maintain social distancing between staff?
Employers in England are no longer required to maintain two metre (or one metre) distancing between staff members. The general position is that social distancing guidance no longer applies and there can be unlimited social contact between people from different households.
However, the new government guidance on office layout states that as COVID-19 is spread through social contact employers can mitigate risk by reducing the number of people workers come into contact with. The government suggestions reflect previous CIPD advice including:
- reducing the number of people each person has contact with by using ‘fixed teams or partnering’
- ‘cohorting’ (so each person works with only a few others)
- using screens or barriers to separate people from each other
- using back-to-back or side-to-side working, instead of face-to-face
- assigning workstations to an individual or if desk sharing is necessary implementing clean them between each user.
Q: Do employers in England have to continue a face mask policy?
From 19 July in England masks or face coverings are no longer required by law. However, the workplace guidance says that employers should encourage the use of face masks, particularly in indoor areas where people may encounter people they do not normally meet. This is especially advised in enclosed and crowded spaces.
Ultimately the decision is one for employers who can require staff, visitors and customers to wear masks. Case law is starting to emerge that suggests it may be fair to dismiss employees who refuse to wear face masks for health and safety reasons, even if not legally required.
While case rates are increasing employers should probably require employees to wear masks when moving around buildings, in busy reception areas, canteens, corridors, lifts or communal areas.
As always any mandatory requirements for face masks should be subject to reasonable adjustments for those with any mental or physical reason or disability preventing them from doing so. If masks are mandated they should be worn correctly.
Q: Do employers have to keep measures in place to manage COVID risks even if all their staff are vaccinated?
Yes, employers have to keep measures in place to manage COVID risks even if all their staff are vaccinated. The guidance applicable after 19 July does not refer to vaccination in great detail. However, it does indicate that it is important to keep measures in place to reduce the risks of transmission even if employees are vaccinated.
Regular testing is encouraged by other government guidance. Employers may consider asking employees for their vaccination status as part of any gradual return to the workplace. It is generally less contentious to require employees to adopt regular testing rather than mandating vaccination alone. For further details see our vaccination and testing FAQs.
Q: What if our people don't want to come back - or have anxiety about travel on public transport?
Employees' concerns about safe public transport should be taken into account in the planning and management of any return to the workplace.
It is sensible if all unnecessary work-related travel is minimised and government guidance has previously encouraged cycling or walking to work wherever possible. Employers can also implement measures such as:
- Staggering rotas arrival and departure times to reduce crowding
- Providing additional parking/bike racks
- Continuing home working on a full or hybrid basis provided that some or all of an employee’s work can be performed remotely
- Altering work duties by agreement to accommodate those who are anxious to avoid crowded public transport.
Many employees may have legitimate concerns about using public transport, especially as government advice says crowded transport may be an issue.For employees who continue to be reluctant to come into work, from a legal standpoint, on the one hand, under the Employment Rights Act 1996 employees can claim that they have suffered a detriment on health and safety grounds, or claim automatically unfair dismissal if the employee reasonably believes there was a serious and imminent danger which justifies their refusal to return. On the other hand, in all employment contracts there is an implied term that employees must follow their employer’s lawful and reasonable instructions. Employees could therefore face disciplinary action if their continued refusal to attend work is unreasonable. However, avoiding public transport may seem preferable to some especially when the government and transport operators are saying that masks may need to be worn or crowded transport. There is at least a risk that disciplining employees for refusal to travel may result in a health and safety detriment, unfair dismissal or discrimination claim.
The employer should listen to the employee’s concerns, especially if they are vulnerable or have a disability and consider their proposals and accommodate them as far as practicable. Every employee should have the opportunity to discuss any concerns about their commute and ability to arrive safely with their manager and this should take place well in advance of the day that individual is expected to return.
Employers should also remember that employees with some mental health issues may be anxious about travelling and if their mental condition constitutes a disability the employer should try and accommodate their request. This could include staggered working hours, unpaid leave or use of annual leave to achieve a phased return.
Q: Where does liability sit if employees catch coronavirus at work or on the way to work?Employers have existing contractual and statutory duties to take care of employees’ health and safety. If employees can prove they caught coronavirus at work and the employer cannot show they have taken appropriate steps to prevent this, the employer could be liable for the employee’s losses. Some employees may be unable to work for some-time and some may have more serious long term health implications. Although it should be rare, some employees may be able to establish the employer unnecessarily exposed them to danger and risk. Potential liabilities include health and safety protections, unfair dismissal and discrimination claims.
In the medical research, health and care sectors workers who subsequently develop coronavirus may have reasonable evidence that the exposure arose from the workplace. In other contexts, it will be harder to prove. However, there are many potential liabilities for failure to take care of staff, particularly if they are especially vulnerable. It is better for employers to be able to show that appropriate protections and adjustments were taken. For further details of employers’ duties see the Q: From a health, safety and wellbeing perspective, what are the main aspects of the guidance about managing a return to the workplace? and the Q: What steps should employers take before employees return to the workplace now that restrictions in England are lifted?
Employers should keep records to show that they have conducted appropriate health and safety risk assessments to identify and manage risks appropriately and that they have:
- Undertaken workplace safety audits.
- Considered testing and/or checking vaccine certification at work.
- Updated health and safety policies and procedures.
- Identified potentially hazardous situations.
- Made changes to reduce exposure.
- Trained employees and communicated new policies and procedures to them.
- Monitored the workplace to ensure compliance by employees with new health and safety rules, policies, practices and procedures.
- Performed random checks and kept ongoing compliance reports in regular ongoing efforts to ensure compliance.
- Encouraged reporting of problems and have an open environment that welcomes feedback.
Some relevant legal aspects are set out below.
Other duties at work
As well as the overriding duty to care for employees’ health and safety the following duties apply:
Risk assessment: Employers who have employees returning to their usual workplaces will need to ensure that they have conducted appropriate health and safety risk assessments to identify and manage risks appropriately. See our Q: What does the government advice say about COVID-19 risk assessments?
Reporting: The Health and Safety Executive (HSE) has issued guidance on reporting cases of COVID-19 under the 2013 Reporting of Injuries, Diseases and Dangerous Occurrences Regulations (RIDDOR). Reports will only be needed if:
- A worker has been diagnosed as having coronavirus and there is reasonable evidence it was caused by work exposure. This must be reported as a case of disease.
- An unintended incident at work has led to someone's possible or actual exposure to coronavirus, this must be reported as a dangerous occurrence.
Such incidents are more likely to occur in a laboratory, health or care setting. HSE guidance does not suggest that every case of COVID-19 in the workplace is reported, and it is unlikely that extensive RIDDOR notifications will be made. Employers must consider the individual circumstances when they decide whether to report.
Travelling to work
It will be difficult for employees to prove that they contracted the disease travelling into work and that the employer should be liable. However, employers may be liable if employees can show that they were unnecessarily exposed to risk when there were alternatives available.
Government advice is to use public transport wearing face coverings in crowded places and employers may also consider, where possible:
- Provision of parking spaces.
- Secure bicycle parking.
- Shower facilities.
- Flexible or staggered working hours by agreement to enable employees to avoid more crowded public transport. You can find more information on staggered working hours in our flexible working measures guide.
- Special provisions for vulnerable staff eg elderly, pregnant, and those with impaired immunity helping them to avoid public transport or its use at peak times.
Q: Should risk assessments cover mental health aspects too?
Yes, employers’ health and safety duties extend to mental health and wellbeing so risk assessments should cover managing mental health and wellbeing aspects too. You may wish to refer to the Health and Safety Executive stress risk assessment tools. Employees with new working arrangements in the workplace and working from home can suffer from stress or mental health issues, so employers must maintain contact and look for signs of problems. Employers have the same health and safety responsibilities towards those working from home as for any other workers, including for their mental health. For more information see the FAQs on managing remote working. Employees who have been furloughed should be given specific consideration.
As well as implementing or reviewing policies and procedures and proactively monitoring and keeping in contact, employers should point staff to other support that is available. Managers may need fresh training in recognising the symptoms of poor mental health so they can signpost to early intervention and expert support such as occupational health, an employee assistance helpline.
If an employer becomes aware that particular employees are struggling with their mental health, they should conduct individual risk assessments for both home and workplace workers.
More guidance on supporting mental health is available in our guide on mental health support for employees during COVID-19.
Q: How do we assess people before they return in terms of wellbeing/mental state?
The risks to people’s health from this pandemic are psychological as well as physical. Everyone will have experienced a challenging time during lockdown and many will have experienced anxiety due to a range of different factors. People’s mental health is fluctuating, so there needs to be an ongoing conversation about wellbeing as part of every manager-employee one-to-one.
Individuals who have a pre-existing mental health condition, such as anxiety and depression, should have been offered support during this health crisis. But many others will now have developed a mental health condition, and so support such as an employee assistance programme or counselling should be offered to all employees.
If a return to the workplace is essential the best way to assess people’s mental wellbeing is to encourage a culture where people feel safe to talk about their feelings and seek help. Hopefully, managers will have the kind of trust-based relationship with each team member whereby an employee can raise their concerns.
Managers need to listen with empathy and treat all concerns seriously, and signpost to help if needed. They also need to be prepared to discuss any changes to someone’s role or working arrangement to help ease them back to work. Many people will need a period of readjustment and so a phased or gradual return could be needed.
Managers could also be feeling vulnerable and so it’s very important that employers ensure they are properly supported to support employee wellbeing, and can address their own wellbeing concerns.
More advice for line managers is available in our line manager support materials.
Q: How should we support pregnant employees?
Risks to pregnant women
Pregnant women have extra statutory protection to ensure they are protected from risks at work. Employers have a duty to protect all employees and an even higher duty towards any staff who are pregnant. Employers of pregnant women should be extra cautious and try to avoid pregnant employees taking unnecessary risks. In connection with coronavirus employers should consider allowing continued home working if possible, especially in areas where rates are high.
In some roles where it is not possible to offer home working, pregnant employees can be offered suitable alternative employment on a temporary basis (that could be done from home) or suspended from work on medical grounds (on full pay). Other potential adjustments include temporarily altering the employee's working conditions or hours of work. If the pregnant employee remains suspended until the fourth week before the expected week of childbirth or is absent from work for a pregnancy-related reason, this triggers the commencement of her maternity leave.
From July 2021 onwards, the government gave employers more discretion to decide how their staff can work safely, which can mean making workplaces safe or continued employees homeworking if they can. Pregnant employees and their employers should take particular care to reduce risk which may still mean minimising contact with others outside their household. Home working for pregnant women who wish to do this is one way of working safely.
The Department of Health has issued guidance applicable in England, Scotland, Wales and Northern Ireland for pregnant woman who are working as an employee, including healthcare professionals.
Employers have ongoing duties under health and safety legislation and should undertake risk assessments, once any pregnant employee has let them know about the pregnancy. Pregnant women should not be required to continue working at any stage, if this is not supported by the risk assessment. There are different government guides for different industries, for example information and advice to be used as the basis for a risk assessment may be obtained from:
- occupational health departments,
- workplace risk assessment guidance for healthcare workers and for vulnerable people working in other industries, or
- Royal College of Obstetricians and Gynaecologists and Royal College of Midwives guidance (see the RCOG/RCM guidance on coronavirus (COVID-19) in pregnancy).
Line managers, pregnant employees and occupational health teams can discuss how to ensure health and safety in the workplace. Although pregnant woman are no more at risk of contracting COVID-19 than any other person, there may be an increased risk of becoming severely ill or having a pre-term birth if they contract COVID-19 or have underlying health difficulties.
The advice is different for women depending on whether they are under or over 28 weeks pregnant.
For women under 28 weeks pregnant (with no underlying health conditions) employers should:
- have a workplace risk assessment with the employer and occupational health team;
- only allow the employee to continue working if the risk assessment advises says it is safe to do so;
- ensure the employee can adhere to any remaining guidance on social distancing;
- remove or manage any other risks;
- if risks can’t be manged offer suitable alternative work or working arrangements (including working from home) or suspend on normal pay.
including the extent to which it is possible to follow social distancing, minimise the use of public transport and stay two metres away from others wherever possible.
Pregnant women and anyone with underlying health conditions must therefore still minimise contact with others, for example, employers could provide pregnant women with their own office or if they cannot offer safer work, then working from home or agreed suitable alternative work may be the best options.
In healthcare settings work may entail specific higher risks of exposure to the virus (see the Public Health England Guidance on Infection Prevention and Control). Employers should adopt appropriate risk mitigation after the assessment.
Pregnant women who are 28 weeks pregnant or more (or with underlying health conditions) should be more cautious as they may be at a greater risk of severe illness from coronavirus. Employers should:
- adhere to any active national guidance on social distancing;
- consider the employee working flexibly from home even if in a different capacity;
- consider how to redeploy staff and how to maximise potential for homeworking, wherever possible.
- An employee who has previously been vaccinated then becomes pregnant.
- An employee who has not yet been vaccinated is pregnant.
From 16 April 2021 the Joint Committee on Vaccination and Immunisation (JCVI) has advised that pregnant women in the UK can be offered the COVID-19 vaccine.
Public Health England advises that:
- The COVID-19 vaccines available in the UK have been shown to be effective and to have a good safety profile. The MHRA has confirmed that the COVID-19 vaccines are generally safe and effective.
- There have been no specific safety concerns from any brand of coronavirus (COVID-19) vaccine in relation to pregnancy and all vaccines being used in the UK have undergone full clinical trials.
- These COVID-19 vaccines do not contain organisms that can multiply in the body, so they cannot infect an unborn baby in the womb.
As the effects of infection in pregnancy remain under consideration, employers should take great care to protect both pregnant women who have previously been vaccinated and those who have not.
Women who are planning pregnancy, or have recently given birth can be vaccinated with both doses of any vaccine, depending on their age and clinical risk group.
It appears that women who are breastfeeding can also be given any vaccine.
Precautionary government advice remains to reach a joint decision concerning the vaccine with a health care professional, so this would apply immediately before pregnancy and perhaps during breastfeeding too. The JCVI and the World Health Organisation has recommended that a vaccine can be received whilst breastfeeding. However, employees who are breastfeeding.
Employers should support women who think they may be pregnant or who are planning a pregnancy.
Employers should keep checking current government guidance.
Health and safetyIf a pregnant employee’s colleague or someone else in the workplace has coronavirus symptoms or has been in contact with others with COVID-19 that person may consider themselves in serious and imminent risk of danger to health and safety. In such situations, there is special protection against dismissal and detrimental treatment if the pregnant women wants to leave work to protect herself.
This protection is under Section 44 of the Employment Rights Act 1996 and requires a reasonable belief that there was a serious and imminent risk based on the situation at the time and the steps taken and advice given about the risks.
Clinically vulnerable and extremely vulnerable
Most pregnant women fall into the ‘clinically vulnerable people’ category who were advised to take particular care, but not to 'shield'. The formal shielding programme has ended but for general advice for the clinically vulnerable please see our changes to shielding guidance.
Only some pregnant employees are classed as clinically extremely vulnerable to coronavirus, including women with significant heart disease who are pregnant. Most CEV people have now been fully vaccinated, but pregnant women who are not vaccinated are in need of heightened precautions. During the operation of the furlough scheme, these employees could still be furloughed if they cannot work from home.
Being on furlough does not impact eligibility for or the amount of statutory maternity, adoption, paternity, or shared parental pay. Pregnant women who are not furloughed and are shielding can get Statutory Sick Pay (SSP).
Employees who are pregnant during the pandemic can start maternity leave as usual. If workers planning to take some form of statutory parental leave were furloughed, their statutory payments are based on their usual earnings rather than the furlough pay.
Leave and pay
For staff already on maternity, paternity or adoption leave or shared parental pay normal rules for statutory pay apply. For example, eligible mothers will be entitled to claim up to 39 weeks of statutory maternity pay or maternity allowance. The rate is 90% of average weekly earnings for the first six weeks, followed by 33 weeks of pay at 90% of average weekly earnings or the statutory flat rate (whichever is lower). The statutory flat rate is now £151.97 a week.
Enhanced contractual maternity, paternity, adoption and shared parental pay are included within the wage costs that employers can potentially claim back through the Coronavirus Job Retention Scheme until the scheme ends in September 2021. Any further claims during this final phase of the flexible furlough scheme depend upon when the employee was furloughed, when their leave occurs and whether they are on statutory or contractual maternity schemes. See our FAQs on the extended furlough scheme for more detail on aspects of maternity leave and furlough.
DISCLAIMER: The materials provided here are for general information purposes and do not constitute legal or other professional advice. While the information is considered to be true and correct at the date of publication, changes in circumstances may impact the accuracy and validity of the information. The CIPD is not responsible for any errors or omissions, or for any action or decision taken as a result of using the guidance. You should consult the government website for the very latest information or contact a professional adviser for legal or other advice where appropriate.
If you have other queries about COVID-19 not covered above, please contact the CIPD member employment law helpline on 03330 431 217 or visit the Community pages
We know that our members and customers are facing challenging times and we are here to help you. Due to a high number of calls we apologise that your wait time may be longer than usual. We appreciate your patience and will connect you to an expert adviser as soon as we can.
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