Blacks Bulletin - Employment Law - What will life after ‘Freedom Day’ look like for employers?
What will life after ‘Freedom Day’ look like for employers?
Subject to a final review, from 19 July 2021, the following changes will take place in England:
- there will be no requirement to socially distance;
- face masks will no longer be mandatory in public places;
- all businesses that have been shut will be allowed to open;
- there will be no limit on the number of people you can meet; and
- people will be encouraged to return to the workplace instead of working from home.
‘Freedom Day’ will, in effect, mean that there will be no government-imposed restrictions placed on employers. Instead, the laws we have all lived with for the last 16 months will be replaced with mere guidance. This means that, in practice, it will be for employers to decide what Coronavirus-related measures are appropriate to implement in the workplace.
Employers have a duty of care in respect of the health and safety of their employees, visitors and the public, so they will still have to have regard to the dangers of COVID-19 within their health and safety risk assessments. Measures we expect to see at many workplaces in line with government guidance include:
- continued use of facemasks, especially in sectors that have a high degree of contact with the public;
- increased provision of PPE (relative to the position prior to the pandemic), including hand sanitiser and face masks;
- a move towards a hybrid working model to reduce the number of people in the workplace;
- greater use of ‘no jab, no job’ employment contracts;
- continued social distancing in confined spaces such as lifts, taxis, meeting rooms, etc.;
- changes to the workplace lay-out to provide for increased ventilation, socially-distanced working and plexiglass screens/dividers; and
- regular lateral flow testing of staff.
Perhaps the most contentious issues we foresee for employers relate to the recall of staff into the workplace. Some employees have (understandably) become very used to working from home and, confident that they can do their job remotely, have no desire to return to the workplace.
In this situation employers would be best advised to meaningfully engage with the employee’s objections before simply demanding that the employee get back to work. If no accommodation can be achieved and there is nothing preventing the employee from returning to work, then disciplinary action for failure to follow a reasonable instruction may be an option.
Some employees (especially the clinically vulnerable) will not feel safe returning to work due to the threat of COVID-19. This situation must be handled with care because employees have a legal right not to be subjected to a detriment if they remove themselves from the workplace in circumstances where they reasonably perceive serious danger associated with them remaining in the workplace.
In such a circumstance the employer needs to satisfy itself that it has discharged its duty of care and that its premises are COVID-secure to allay the concerns of the employee in question. If this still does not satisfy the employee and they simply refuse to return, then termination of the contract of employment can be considered. However, this is not a step to be taken lightly as any dismissal related to an employee’s health and safety concerns will almost certainly invite a claim in the employment tribunal.
If you have any questions about your obligations following 19 July, please contact Paul Kelly @ PKelly@LawBlacks.com