Introduction
During July most legal restrictions on social distancing were brought to an end, including the instruction to work from home if you can, enabling more businesses and offices to reopen. Whilst this will be welcome news for many sadly, covid cases and deaths are still part of our everyday life.
The government has published a number of guides about working safely during coronavirus covering a range of different types of work, including specific guidance for ‘offices, factories and labs’.
The guidance provides information about how to safely open workplaces whilst limiting the spread of COVID-19, and makes it clear that ‘the government expects and recommends a gradual return over the summer’ and that employers ‘should discuss a return to the workplace with workers, and trade unions to make working arrangements that meet both business and individual needs’. So what does this actually mean for employers? Every business is different, and there is no one size fits all solution to the challenge of returning to the office during the pandemic.
To help business take an informed and measured approach Hodge Jones & Allen’s Employment Team have prepared answers to some frequently asked questions.
Can we ask staff to return to the office?
Yes, if you comply with your obligations under the Health and Safety at Work Act 1974 (HSWA 1974). You have a duty, as far as reasonably practical, to ensure the health and safety of your employees at work. So, there are various ways a gradual return to work can be implemented, such as splitting employees into teams to limit the number of people who attend the office on any given day or week, by asking for volunteers, asking certain employees to return by reference to business needs, or by introducing more permanent hybrid working arrangements.
Before asking staff to return to the office, employers should carefully consider the government guidance, which sets out 6 steps that can be taken by employers to protect staff:
- Carry out a risk assessment! This needs to be done in reference to the guidance and should include consideration of reasonable adjustments for people with disabilities;
- Provide adequate ventilation;
- Clean more often and ask staff to use hand sanitiser and clean their hands;
- Turn away people with COVID-19 symptoms (it is an offence to allow a worker you know is self-isolating to come to work);
- Enable people to check-in at your venue (although it is no longer a legal requirement to collect details from customers);
- Keep employees and customers updated about your safety measures.
Do staff need to socially distance and/or wear masks in the office?
Whilst there is no current strict legal requirement to social distance, employers must still comply with their duty to ensure the health and safety of their employees (as far as reasonably practicable).
Every employer needs to carry out a risk assessment to determine what measures they will use to create a safe working environment. The guidance states that one way to manage and reduce the risk of transmission is ‘putting in place measures to reduce contact between people’ such as ‘reducing the number of people each person has contact with’, for example ‘using screens or barriers to separate people from each other, or using back-to-back or side-to-side working’. The guidance is just that, and so individual employers will have to make a decision about what is right for them and their staff, but in light of the guidance and the prevalence of COVID-19, employers may wish to keep some measures in place, as far as is reasonably practicable.
Staff do not need to wear masks in the office, however the guidance does recommend face coverings in crowded enclosed spaces (e.g. corridors and lifts) with the aim of reducing the risk of transmission. Employers may also decide to keep some existing measures in place to make staff feel more comfortable returning to the office.
Can businesses make it a requirement for their staff to be vaccinated?
The concept of employers mandating vaccines is novel and untested, and where an employee refuses the vaccine, and employers subsequently sanction/dismiss them, the employer risks claims for unfair dismissal (if the employee has over two years’ service) and also discrimination if the employee has a protected characteristic. At the very least, employers would need a very strong business and health and safety-based argument to seek to justify mandatory vaccination.
Businesses can encourage staff to get vaccinated, and Public Health England have recently published guidance ‘COVID-19 vaccination: guide for employers’ setting out what employers can do support the vaccination of their workforce. Encouraging staff to get the vaccine is a reasonable step employers can take to comply with their obligations under HSWA 1974 to help reduce the risk of transmission in the workplace.
What options does the business have if staff will not comply with new rules at work (on the basis that it is no longer a legal requirement to wear masks.)
Where a business has decided, after conducting a risk assessment that the best way to keep staff safe and reduce transmission, is to still encourage social distancing and mask wearing in certain circumstances, for example, then it is important to communicate the policy to staff.
If staff members, refuse to social distance and/or wear masks now that most legal restrictions have been lifted, then the first step would be to speak to the staff member and find out the reason why they are refusing to follow the policy. If they do not have a legitimate reason then continued refusal to comply with company policy could be considered a failure to follow reasonable instructions and could be grounds for disciplinary action.
Employers should be wary though as, in some cases, staff members will have legitimate reasons e.g. physical or mental illness that prevents them from wearing a mask. In this type of situation employers will need to consider what reasonable adjustments can be made to the policy (for example wear a visor or install a screen to allow for greater social distancing) and what alternative measures may need to be put in place to ensure staff safety.
What about staff members who are at higher risk or clinically extremely vulnerable?
Government guidance on shielding and protecting those categorised as clinically extremely vulnerable has evolved throughout the pandemic. Although those classed as clinically extremely vulnerable are no longer advised to shield, the government has issued additional guidance on protecting people who are clinically extremely vulnerable from Covid-19. The guidance makes it clear that extra consideration needs to be given to those with mental and physical health issues, and so this should form part of your risk assessment. The guidance states that you ‘should continue to support these workers by discussing with them their individual needs and supporting them in taking any additional precautions advised by their clinicians’.
Employers also need to mindful that some employees suffering from mental or physical health issues may be considered disabled for the purposes of the Equality Act, in which case they have a duty to make reasonable adjustments.
Hodge Jones & Allen are members of Laurel Leaf Networking.