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What UK employment law has to say about COVID-19 and the workplace

Dee Coakley

As the world slowly tries to find its footing in this latest chapter of the COVID-19 story, things haven’t gone quite as planned. Many people are still reluctant to get vaccinated while breakthrough infections have been rising. Making sense of how all that impacts the world of work feels almost impossible.

Many companies have decided to never return to the office and remain fully remote. Others still entertain the possibility of at least some form of a hybrid set-up. Which decision is correct? We’ll know some time down the road — but only in hindsight. In times like these, employment and civil law can be a guiding light.

In the UK, as in most of Europe, employment regulations tend to favour the employee and their human rights. This UK guide addresses some of the most pertinent questions that both employers and employees have.

What are the latest regulations across the UK?
While restrictions have now eased in Scotland, the Scottish government is still encouraging employers to support employees to work from home where possible to control the virus. In addition, the government is encouraging employers to make the health and safety of employees returning to the office their main priority by means of applying a coordinated approach and flexible working arrangements where possible. You can find all Scottish workplace guidelines here.

The English government (contrary to Scotland) no longer instructs people to work from home. Instead, it recommends a “gradual return to work”, expecting employers to follow a range of health and safety legislation — risk assessments and corresponding set-up as well as implementation and maintenance of safe work systems. You can find more details here.

In Wales, employers’ undertaking a risk assessment and taking reasonable measures to minimise any virus spread is a prerequisite for employees to return to the office. Regulation 16 of the Health Protection (Coronavirus Restrictions) (No. 5) (Wales) imposes obligations on people responsible for premises where work takes place. For further information and specifics, check here.

In Northern Ireland (similarly to Scotland), the current guidance is to work from home where possible. You can find complete guidance here.

Can employers mandate or prohibit a return to the office?
The decision on where employees should be working ultimately lies with the employer. However, that doesn’t come without certain caveats. For one, as clearly seen above, there is an utmost expectation of employers to take very serious measures in ensuring the work environment is as safe as possible.

An important consideration is, of course, the will of the employees. Employment rights legislation protects those who refuse to go back to the office because they reasonably believe that there is a serious and imminent danger to do so. The protections also apply if an employee takes appropriate steps to protect themselves or others from danger. There have now been some Employment Tribunal cases in relation to employees’ concerns about the virus and their return to office-based working. In many cases, employees have not had difficulty establishing a reasonable belief of serious or imminent danger.

There are, however, indications that a general fear of the virus may not be enough especially if the employer has followed the government’s working safety guidance. This is an evolving area. However, employees who are clinically vulnerable or share a household with someone who is clinically vulnerable are entitled to continue to work from home regardless of the measures the employer has taken.

What are the rules concerning statutory sick pay?
Employees are entitled to statutory sick pay if they are required to self-isolate and cannot work as a result or if they are off ill with COVID-19, subject to standard eligibility criteria. The number of statutory sick pay entitlement days depends on the reason and the length of time employees are off work. An important differentiation from statutory sick pay for other illnesses is that employees can claim statutory sick pay for every day that they are off work self-isolating, not just every day after the three waiting days.

The eligibility for sick pay is also extended to employees suffering from the symptoms of “long COVID”, which are treated as any other illness. Employers should be mindful of the effects of long COVID and consider making reasonable adjustments to avoid any possible discrimination claim based on disability. The case law in this area is still developing.

Can employers prohibit international travel to avoid the need for employees to quarantine?
Ongoing case law deals with this matter far more than existing employment legislation does. There are still not enough cases present to indicate which way courts would go on this. The general advice still in place is to avoid international travel wherever possible.

However, if an employee chooses to ignore this advice or has good reason to travel internationally, their employer doesn’t have a right to intervene. The Human Rights Act 1998 gives everyone in the UK the right to a private and family life, and employment law is interpreted with this in mind. Ultimately, what an employee chooses to do in their personal time remains their choice, and an employer cannot seek to control or prohibit an employee’s time.

If an employee is required to self-isolate but cannot work from home, they are not entitled to statutory sick pay. However, an employer can choose to pay the employee sick pay for that duration. If an employee develops COVID-19 symptoms, they may be entitled to statutory sick pay.

Can employers insist that employees returning to the workplace are vaccinated?
Much public talk has recently focused on the considerations and process of devising policies on demanding COVID jabs (or not) for workers returning to the office. Similarly to the above point about forbidding international travel, more general civic legislation provides guidance here. For example, the Public Health (Control of Disease) Act 1984 says that individuals cannot be forced to undergo medical treatment, including getting vaccinated. Furthermore, under the General Data Protection Regulation (implemented by the Data Protection Act 2018), employees are under no obligation to reveal any part of their medical history, including their vaccination status.

Employers’ potentially mandating vaccines as a prerequisite to work involves too many risks. An employee could raise a claim of unfair dismissal (if the employer has employed them for two years or more). A fair dismissal must be “within the bounds of reasonable responses open to a reasonable employer”. A court is unlikely to accept dismissal on the grounds of no vaccination as reasonable; to rule otherwise would undermine the employee’s right to a private life under the Human Rights Act 1998.

An employer imposing a vaccination policy could potentially be seen as discriminating against them on the grounds of disability/religion. For example, some vaccines contain pork gelatine to stabilise the ingredients and ensure effectiveness during the distribution process, which may deter Muslim employees. While the COVID-19 vaccines from Pfizer, Moderna, and AstraZeneca do not use pork gelatine in their formulas, not all other companies have released a list of their ingredients. ­An employee may also be unable to get vaccinated for health reasons such as a history of allergic reactions to vaccines.

The bottom line is that especially in the case of knowledge workers who have been effectively doing their work from home, there is little justification to force them to come to the office under certain conditions.

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