Lifting of restrictions will bring challenges for employers

As you be aware, very soon, on 19 July, the government is expected to lift virtually all Covid restrictions, but what does that mean for employers? Emphasis will shift towards personal responsibility and choices, but that could spell trouble for employers who are not prepared for that. 

As Personnel Today reports, unions and employers are seeking clarity when the rules around mask-wearing and social distancing are removed as the government tells us all to ‘learn to live with the virus’ and ‘exercise judgment’ over these things. The unions are not happy. Paul Nowak, deputy general secretary of the TUC told the BBC Radio 4 Today programme that members were uncomfortable with the emphasis being on personal responsibility without clear guidance. He said ‘sometimes personal choices can rub up against each other – some people might feel comfortable wearing a face-covering, but others won’t.’  A number of medical professionals have also criticised the move. Dr Chaand Nagpaul, chair of the BMA said ‘it makes no sense to stop wearing face coverings in enclosed public spaces as cases of the Delta variant increase.’

Employees’ attitudes to how their employers handle this will be important. Earlier this this year the TUC published a survey showing a significant level of dissatisfaction which is not an ideal base from which to start. Almost half of employees felt their employer had not taken technical measures to improve ventilation at work, while one in 10 said social distancing was not in place. Three in 10 said they had not been consulted by their employer on a Covid-secure risk-assessment. So, the challenge will be to take employees on this journey and maintain confidence.

In the last few days, we have had a steady stream of queries from clients on how to handle this. Those queries fall into two broad categories – health and safety, which we will cover later in the week, and more mainstream employment issues which we can deal with now. Anne Sammon has been fielding employment queries from a number of her clients and she joined me by video-link to discuss this. I started by asking Anne what questions clients have been raising with her: 

Anne Sammon: “I think the first one is, does that mean we can just get rid of every single COVID secure measure that we adopted as a result of COVID, and then the implications of that for particular groups of members of staff and as a kind of secondary question to that, how do we get people back into the office who are really reluctant to come in, and whose reluctance is being made worse by the fact that they might have to travel on public transport in circumstances where now those who are around them might not be wearing masks, and might not be social distancing?”

Joe Glavina: “So, in broad terms, what’s the advice you’re giving around that, Anne?”

Anne Sammon: “So, I think first of all there’s the kind of health and safety piece where you do your risk assessment and work out what works on a generic basis for all your employees. There’s then a separate question of, well, actually have you got people who you might be needing to think about reasonable adjustments for because of underlying medical conditions that amount to a disability under the Equality Act and for those individuals, there is a chance that actually you might need to go above and beyond the other measures that you've got for everyone else, to keep those people as safe as you possibly can in an environment where we still have increasing numbers of COVID cases and those people may, in some cases, have been vaccinated but the vaccine hasn't been effective because of an underlying medical condition, or may not be able to be vaccinated because of an underlying medical condition. So, we're then into the territory of reasonable adjustments and how you deal with those in relation to those particular individuals.”

Joe Glavina: “We know the government is wanting to shift towards personal responsibility which means individuals will have choices and businesses will have to take a view on matters such as mask wearing. So, plenty of potential for conflict?”

Anne Sammon: “Exactly. So, we've already seen cases where employees have started to approach their employer to say, I know that you might be thinking of getting rid of social distancing and masks but actually, from my own personal perspective, I'd like you to consider making everyone around me wear a mask because I am so much more vulnerable to COVID and the consequences of me catching COVID are so severe and we're very much into the kind of reasonable adjustments piece then and thinking through, well, is that an adjustment first of all that will alleviate the underlying issue and does that hat impact transmissibility of the virus to the individual? Now there are lots of factors to take into account with that and, secondly, is it reasonable, but there are a whole host of different considerations that needs to be taken on board in terms of how you're impacting other individuals and how they may feel about this. I think the key thing, as with all things COVID-related, is the kind of communication with employees, and talking through those issues with the employees who are impacted, to see whether you can come up with a solution that works for everybody.”

Joe Glavina: “You mentioned travelling on public transport. So, employees who haven’t been fully vaccinated yet – so not double jabbed – might refuse to get on public transport once mask wearing stops being compulsory.”

Anne Sammon: “So, I think employers are slightly in a difficult position because the government has decided to roll out vaccination on an age-related basis for very good scientific reasons but that does mean that younger employees are going to be more impacted by not having been vaccinated whereas older employees are more likely to have been vaccinated, unless they've chosen not to be, and so we can easily get into issues of age discrimination if you're imposing a policy that might have a greater negative impact on that younger group of employees. So, I think employers need to be really careful about balancing the need to get people back in the office, and also thinking about the fact that different groups will be impacted in different ways, particularly those who haven't yet been vaccinated.”

Joe Glavina: “What about employers’ disciplining individuals that don’t comply with the workplace rules, or would you advise against that?”

Anne Sammon: “So, I think there reaches a point where you have to kind of look and see, what's the reason for needing somebody in the office and how long are you going to allow them to have an exception to the rule because if somebody has been double jabbed and they're still not comfortable coming in at the moment the chances are they're not going to be comfortable coming in September, October, November, December, next year even, and so there does come a point where either you've got to make the decision that they can permanently work from home or start to take steps to encourage them to come back to the office. Now, for me, disciplining is always kind of last resort so the first piece is to talk to the employee and understand what the concerns are ands that might be, you know, they're worried about travelling at peak times on public transport, or can we flex their hours so that they don't need to travel at those peak times and maybe they can come in when it's quieter? Can we get them to try coming in so that they can see whether it's as bad as they think it is, or whether it's worse but, hopefully, if we’re engaging in dialogue, we can avoid that situation where we suddenly have to start disciplining somebody because they're not following a reasonable management instruction. Ultimately, though, if they refuse to come in, and you're comfortable that you actually need them in the office for whatever reason, then disciplinary action is the last resort.” 

Joe Glavina: “Just thinking about those employers that adopt a blanket policy. We know that creates a risk of indirect discrimination but there’s a defence to that if you have a legitimate aim and it’s a proportionate response by the employer. The legitimate aim is easy – health and safety in a pandemic – but how can employers demonstrate, if challenged, that the steps they taken are proportionate?”

Anne Sammon: “I think first thing is understanding what your employees think if you understand what your employees think, where they are in terms of whether they are pro-mask or anti-mask, or don't care, then you can work out what your strategy is depending on what approach it is that you're looking at. So, if people are buying into the reasons why mask wearing is a good idea in the office, you're less likely to end up in that situation of employment tribunal litigation. Ultimately, it comes down to working through what it is that you're trying to achieve by imposing mask wearing and whether or not there is a way of doing it in a less impactful way that negatively impacts those employees. I would assume that the way that tribunals will look at this is to kind of do their own assessment and ask whether the employer did behave reasonably and being reasonable is about taking on board all the views that you've got. So, have you worked through them? Have you thought about whether or not there are other solutions? I think employers will fall into a real trap if they just say, well, mask wearing is the be all and end all without having worked through, well, actually do our employees come into contact frequently with one another in a way that means that we can't make sure that they're a metre-plus apart from one another? Are they using processes that mean that they are that close? Are there other things that we should be concerned about? So, the other thing that's come up a lot for a lot of clients is the frequency with which you clean the office and making sterilisation equipment available for people and antibacterial wipes and all of those things. Those things probably will continue and so it's about looking at this as a whole solution rather than just saying, well, we'll impose a requirement for everyone to wear masks and I'm just leaving it at that. It’s looking at it as a whole.”

Anne has appeared on this programme many times on a range of issues relating to the pandemic. She has also written a number of articles, and Covid-19 guidance for employers, all of which you can find on the Outlaw website.