Has the serious and imminent danger from the pandemic passed?

The way forward for many employers will be to strike a balance between discouraging the spread of Covid in the workplace and efficiently running a business.

David Jepps considers the implications for employers of the scrapping of self-isolation rules and free Covid testing.

On 24 February 2022, all self-isolation requirements in England ended. In announcing this step, the government said it would provide guidance that those testing positive should stay at home and that the current guidance would be in place until 1 April 2022, at which point it would be reviewed. The government also confirmed that free lateral flow tests would no longer be available
from 1 April 2022. In addition, on 24 March 2022, the special statutory sick pay (SSP) arrangements covering those who have tested positive for Covid-19 but are asymptomatic or otherwise ceased. The existing SSP rules had been temporarily adapted to allow employees who tested positive for Covid but who were not ‘incapacitated’ to receive a limited amount of SSP. The government hoped this would encourage them to observe the self-isolation rules.

Current guidance

At the time of writing, the government had not provided any specific guidance for employers following its decisions to end mandatory self-isolation and free testing – and it was not clear when it would do so. However, on 24 February 2022, the UK Health Security Agency (UKHSA) published Covid-19: people with Covid-19 and their contacts, which is applicable to England and due to be updated on 1 April 2022. Northern Ireland, Scotland and Wales each issued separate guidance as healthcare is a devolved responsibility. The UKHSA guidance focuses on those who have symptoms, have tested positive or who are close contacts of those with symptoms or subject to a positive test result.

The UKHSA guidance closely mirrors the obligations to self-isolate that applied before 24 February 2022. It is not specific to workplaces. It suggests – and it is only a suggestion and not mandatory in law – that those with Covid symptoms or who have tested positive should isolate for ten days. Alternatively, if they present two negative lateral flow tests on days five and six (or later days), self-isolation can end early.

The UKHSA guidance suggests that ‘household’ contacts of those who test positive should work from home for ten days. However, there is no recommendation to work from home for other contacts.

Where does this leave employers?

If an employee presents obvious Covid symptoms, then until recently it has been accepted that the employer could ask them to stay at home and take a test. The UKHSA guidance
currently suggests that symptomatic employees should request a PCR test – but, along with lateral flow self-tests, these will no longer be available for free for most people in England
from 1 April 2022.

Each employee’s circumstances will need to be individually assessed but, as a general rule, if employees are symptomatic but able to work from home, it should be reasonable for the
employer to require them to do so. If employees are quite ill, then they should not work at home or at all and should qualify for SSP irrespective of the temporary changes to SSP
rules being discontinued. On the basis that they are incapacitated, then any contractual sick pay arrangements over and above SSP are likely to be triggered too.

Each of the above scenarios is very likely to be accepted and taken as read by employees and employers alike.

What about those employees who cannot work from home but are not very unwell and want to work? What if the employer does not want them to come into the workplace? Can
employers enforce Covid testing or indeed other measures? Who will pay for tests when the government ceases to provide them?

The starting point under common law is that employees who are ready, able and willing to work are usually entitled to be paid. Exceptions might include hourly paid casual workers. The government could potentially legislate and set out what can and cannot happen in certain circumstances. But if, as currently expected, it does not and there are no specific, binding rules, then employers will have to operate within existing legal parameters. These fall into three classes: contract law, health and safety duties and statutory employment law protection

Contractual considerations

Potentially, it is possible for employers to structure contracts in such a way that employees who have Covid (or indeed any other infectious illness) must stay away from work and must be subject to testing. However, such contractual obligations have only existed pre-Covid in very limited healthcare-related employments.

For new hires, employers can include arrangements in proposed contracts dealing with how they administer Covid absences and testing. Arrangements could also include vaccination requirements and temperature checks. If prospective employees do not want to accept such arrangements, then they will not be able to start their job. But for existing employees, changing their contracts to include testing and Covid self-isolation requirements and so on is usually going to need their express written agreement, ideally following a period of open discussion and consultation.

Only in very limited circumstances will there be an implied (unwritten) term in the contract that the employer can insist on testing or self-isolation without specific written agreement. Even then, employers cannot force employees to take a test. Such circumstances will generally be restricted to healthcare-related workplaces where there is a critical need to protect patients and colleagues. However, a term might also be implied in organisations where there is a need to test to meet any mandatory requirements for essential business travel.

To pay or not to pay

The issue of pay while being required to isolate is problematic. Many employers will take the view that it is sensible to pay employees while they are self-isolating as an incentive for compliance. Employers are only legally required to administer SSP where employees qualify. Whether anything over and above SSP is paid is a matter determined by either the contract or the employer’s discretion. But as of 24 March 2022, employees will need to be incapacitated (meaning too ill to work) for SSP to be triggered. If they are not ill at all, SSP should not be paid.

Contracts could be written to say that employees are required to isolate if they have tested positive for Covid and will not be paid while doing so. But would employees readily agree to such terms or want to apply for jobs on that basis? Unions too will have strong views on the matter.

If employees are required to test for Covid then, once free testing is withdrawn, that cost would fall to the employer. It is a fundamental principle of the ‘master and servant’ structure of employment relationships that the employer is responsible for employees’ necessary expenses in performing their tasks.

Existing workplace arrangements for periodic testing can be easily replicated at a cost: lateral flow self-testing kits typically cost £5 per unit from private wholesalers (about a quarter of the cost of those required for travel). More sophisticated testing can be organised by engaging specialist testing companies and could be a more practical option if test results are to be recorded, as there are complicated data protection obligations.

Health and safety duties

All employers have a duty of care to take reasonable steps to ensure a safe workplace. During the pandemic, it has been accepted that employers will facilitate homeworking where practical and provide adequate personal protective equipment (PPE) where needed.]

Employers’ Covid-related obligations have until recently been underlined by government recommendations to work from home, social distancing obligations and requirements to wear masks. But now that there is no official structure in place and on the assumption that the government will leave it largely to employers to decide what is right in their workplaces, will Covid measures simply fall away? Will Covid just be approached in the same way as flu? Maybe – over time. But this is likely to be a gradual process and Covid measures should not just completely vanish overnight. Common sense should prevail and the duty under the Management of Health and Safety at Work Regulations 2006 to make and maintain risk assessments both for the organisation as a whole and for vulnerable individuals will remain.

An overwhelming 84% of respondents to a February 2022 survey for the Chartered Institute of Management indicated that their organisations would continue with hybrid working for at least the foreseeable future. Hybrid working is a straightforward way of addressing potential crowding concerns in open-plan offices and, for the moment, it would
generally be unwise for employers to refuse requests for it.

Where hybrid working and homeworking are not possible, employers should seriously consider continuing to provide masks and to encourage customers and visitors to wear them too.

Where workplaces necessitate close contact, employers should also seriously consider continuing with testing. In the short term, the cost of testing should outweigh the impact of a Covid outbreak. The way forward for many employers will be to strike a balance between discouraging the spread of Covid in the workplace and efficiently running a business.

Policies can be adapted to discourage any pre-Covid culture of presenteeism (in other words, employees feeling obliged to come into work when they are not feeling well). Employers might also require mask wearing and social distancing if, for example, an employee comes to work with a cough.

Vulnerable employees

There are thought to be half a million people in the UK with suppressed immune systems. Their advocates feel they have now been abandoned by the government but lack of regulation does not mean lack of responsibility. It is the employer, not the government, who has direct health and safety obligations to those in the workplace. Employers should continue to prepare, update and implement specific risk assessments for every employee who has vulnerabilities.

Vulnerable employees should be allowed to work from home if that is practical. If they have to be in the workplace, they should be allowed access to safe spaces at work if possible, as well as to PPE. These steps will be reasonable adjustments for those workers who are classed as disabled for equality law purposes. Such measures will also help to establish that older workers are not being treated any less favourably because of their age.

A rapid scaling back of Covid precautions may accelerate a hesitancy among older employees and those with heath concerns to return to traditional workplaces. Employers should bear in mind current recruitment difficulties in judging how quickly to de-escalate their Covid-prevention measures.

Statutory employment law protection

Section 100(1)(d) of the Employment Rights Act 1996 applies to situations where an employee reasonably believes they are in ‘serious and imminent danger’. If they cannot reasonably be expected to avert that danger, they are protected from dismissal if they leave, propose to leave or refuse to return to the workplace while the danger persists.

This section applies to all employees – there is no need for two years’ service. The starting point is that dismissal is automatically unfair, with compensation being potentially unlimited. These provisions, which were largely hidden in the legislation for many years only to come to notice during the pandemic, have presented a significant risk to employers. Those that have taken health and safety seriously, have listened to their employees’ concerns and have implemented reasonable measures in line with government guidance have generally escaped liability.

It remains to be seen whether employers who relax their Covid precautions following the lifting of government restrictions will face an increased likelihood of an employment tribunal finding they put their employees in ‘serious and imminent danger’. Alternatively, the tribunals may take the discontinuation of government guidance and restrictions as evidence that the serious and imminent danger has (for the time being at least) passed.

Reference – Covid-19: people with Covid-19 and their contacts, UK Health Security Agency (24 February 2022)

This article was first published in Employment Law Journal.