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Coronavirus (COVID-19)

Contents

In this section you'll find information and updates related to coronavirus that are relevant to the law on employment.

The UK's response to coronavirus is changing regularly and often very quickly. While we'll continue to make every effort to keep this page up to date, there may be short periods where what you read here is not the latest information available. Where possible we've tried to provide links to official sources, so you can check the current situation.

Statutory sick pay (SSP) during coronavirus

The following gives an outline of the rules for paying SSP during the coronavirus. You can use our Coronavirus sick leave and pay policy, which provides more detailed information and sets out rules and procedures for your staff about coronavirus-related absences.

Qualifying for SSP

This remains the same as before the pandemic. In a nutshell, a worker or employee will qualify to receive statutory sick pay (SSP) if they are already working for you, earn an average of at least the current weekly Lower Earnings Limit, and are ill for at least 4 days in a row (including any days they are not working). They must also inform you that they are sick and give you any required medical evidence within the time limit you set.

When SSP must be paid due to coronavirus

If they qualify for SSP, it must be paid if they are unable to work because they required to self-isolate for one of the following reasons:

  • They, or someone they live with, have symptoms of coronavirus.
  • They, or someone they live with, have tested positive for coronavirus.
  • They've been notified by NHS contact tracers that they've come into contact with someone with coronavirus.
  • They've been told by a medical professional to self-isolate before visiting hospital for an operation or medical treatment.

Note that there are other reasons that were previously eligible for SSP, but aren't currently because they're no longer relevant – e.g. those who were self-isolating because of being told to shield, or because someone in their support bubble (or extended household in Scotland/Wales) had symptoms.

Before the pandemic, SSP was only payable from the 4th day of sick leave. However, for all of the above, SSP will be payable from the first day that they're unable to work.

The Coronavirus Statutory Sick Pay Rebate Scheme

Until 31 December 2021, you can claim back some of the statutory sick pay (SSP) you've paid to eligible workers who were off work before 1 October 2021 for the above reasons. For anyone off work from 1 October 2021 onwards, you must fund the SSP for these absences yourself.

You must keep a record of all claims made to the scheme for 3 years.

See GOV.UK for more and to make a claim.

Legal obligations for employers and staff regarding self-isolation

Since 28 September 2020, there is a legal obligation on you to ensure your staff don't breach self-isolation rules in order to work for you. There are also notification obligations on your staff. The obligations currently apply to all employers in England.

When the obligations apply

The obligations apply when your staff member is told to self-isolate due to:

  • having tested positive for COVID-19;
  • having had close contact with someone who has; or
  • returning to England after time abroad.

The first 2 of these apply where the staff member is told to do so by either the health service or local authority. They do not apply if they were told to self-isolate through the NHS COVID-19 App.

Your obligations

If you're aware that a member of staff (including any agency workers) must self-isolate, you must allow them to remain in the place where they're self-isolating. You must not require them to leave it to attend work. They can still work if they're well and can do so from where they are (e.g. home).

Where an agency worker has informed you that they need to self-isolate, you must pass that information on to either the principal or the employer (depending on which one of these you are) and the agency. If, instead, either of those are informed by the agency worker, they must inform you.

Failing to meet these obligations could lead to a fine of £1,000, rising to as much as £10,000 for serious or repeat offences.

Obligations for your staff

Staff who know they must self-isolate and who don't already work from their isolation location during the isolation period, must tell you that they are required to self-isolate, along with when their isolation period will start and end. They must do this as soon as reasonably possible, and before they're due to start work during the isolation period.

Agency workers must inform one of their employer, the principal or the agency.

Failure to meet these obligations could lead to a fine of £50.

Health and safety

See our Coronavirus (COVID-19) Health & Safety section to find out about new and existing responsibilities for protecting your staff during the pandemic.

Vaccinations and the workplace

As more and more people are being vaccinated, the following information sets out your responsibilities as an employer.

Can I require all staff to be vaccinated?

This is complex and currently unclear. The law is evolving, and the legal position isn't straightforward.

Although the government has powers to prevent and control the spread of infectious diseases, it doesn't have power to require everyone to undergo medical treatment. This includes vaccination.

The government's Green Book on immunisation against infectious disease states that before starting any medical treatment, consent from the individual is needed. This is a legal principle developed over time by case law and includes administering vaccines. This makes it difficult for you to automatically insist on it.

However, from 11 November 2021, a new law will make double vaccination a requirement for nurses and personal care workers to continue working in care homes in England, unless medically exempt. This will also apply to all agency workers, volunteers, healthcare workers and tradespeople that might be engaged by the care home (but not visitors).

The government has also started consultations to see whether making COVID-19 and flu vaccination a condition of employment to other health and social care sectors.

There's currently no other law that says individuals must have the vaccine, making it difficult for you to automatically insist on it without staff consent. But in time, employers in certain other sectors may have a right to require their workers to be vaccinated. Until then, you should take legal advice if you are contemplating requiring all your staff to be vaccinated. There may be better grounds for requiring some of them to be vaccinated (see below).

Can I require certain staff to be vaccinated?

Possibly, but again the legal position still isn't straightforward.

The Health and Safety at Work Act 1974 requires you to take all reasonably practicable steps to ensure the health, safety and welfare at work of all your staff (a similar duty exists under case law). There is also a legal duty (under case law) to obey the lawful and reasonable orders of an employer. The combination of these 2 requirements may justify requiring some staff to be vaccinated.

Reasonableness is a question of degree. Relevant considerations are likely to include:

  • The nature of the role
  • The circumstances of each worker (e.g. if they're extremely vulnerable)
  • The risks to other staff or people they encounter, such as who they are in regular contact with
  • The workplace's size/layout.

On this basis, it may be reasonable, for example, to require certain staff to be vaccinated, such as care home workers (as the government has done) or other staff working in healthcare or education sectors who have close contact with people who are vulnerable to being infected and face potentially life-threatening consequences.

But it's less likely to be reasonable for staff who have limited contact with others and for whom other protective measures can be put in place. For them, a key question is likely to be whether vaccination provides greater protection than other measures.

This raises 2 issues:

  • It's not yet clear if vaccination reduces or prevents transmission of COVID-19. Public Health England states that vaccinated health and care staff will be 'less likely' to pass on infection, and that it's highly likely that any infection in a vaccinated person will be less severe.
  • It's also unclear how long the protection offered by the different vaccines will last.

This makes it more difficult to argue that compulsory vaccination is reasonable to keep others safe. It also makes it clear that vaccination is not (for now at least) a substitute for workplace COVID-secure measures.

Unfortunately, there are no easy answers here – you'll need to get legal advice if you think requiring vaccination may be justified as it'll depend on your business's individual circumstances, including the relevant considerations discussed above.

Can I put vaccination requirements into staff contracts?

Changing an employee's contract to add a compulsory vaccination requirement is potentially problematic. You'll need their agreement – if you make the change without it, you'll be in breach of contract and the original terms of the contract will remain in place. The employee then has options:

  • They can ignore the breach by continuing to work without complaint under the new terms.
  • They can work under the new terms under protest and claim for breach of contract. If the change imposed is substantial, you might be deemed to have dismissed the employee, meaning they could also claim for unfair dismissal.
  • If the breach of contract is fundamental, they can resign and claim for constructive dismissal. (Note only those with employee status can do this.)

It may be easier to only insert the vaccination requirement into contracts for new staff. However, unless you're recruiting significant numbers of people, this is unlikely to result in any greater protection for your overall workforce. It potentially also opens you up to discrimination claims (more on this below).

In short, it's currently risky – don't try and make vaccinations a part of staff contracts without getting legal advice first.

What do I do if I still want to make vaccination a requirement?

Whether you intend to require any staff to be vaccinated by implementing a policy or inserting a contractual clause, you must first:

  • Undertake a detailed risk assessment to evidence why COVID-19 vaccination is required in addition to compliance with the COVID-secure guidelines already in place.
  • Consult with workplace representatives or trade unions where applicable.

You must also recognise that vaccination may not be suitable for all and make allowances for that. For example:

  • Public Health England advises that individuals with immunosuppression may not make a full immune response to vaccination against COVID-19, and that individuals experiencing prolonged COVID-19 symptoms ('long COVID') may need to defer vaccination.
  • A very small number of people cannot have the vaccine, such as those with severe allergies.
  • While pregnant women are being offered the vaccine, certain types of vaccine are being recommended to them over others.

Indirect discrimination

A mandatory vaccination requirement for employees is likely to amount to a provision, criterion or practice that puts individuals with a protected characteristic at a particular disadvantage compared with others who do not have that protected characteristic. In other words, it's likely to be discrimination under the Equality Act 2010.

A vaccination requirement could put employees with one of the following protected characteristics at a particular disadvantage:

  • Disability

Some of the vaccines in production are not suitable for certain individuals with suppressed immune systems. Some individuals might be advised not to have the vaccine due to a medical condition or may have severe trypanophobia (fear of needles). Both could mean they have a disability and be protected under the Equality Act 2010 if they refuse the vaccine.

Note, though, that those with a history of anaphylaxis (severe and potentially life-threatening allergic reactions) to food, drugs, or insect stings, have been advised that they can still receive any COVID-19 vaccine unless they're known to be allergic to a previous dose of the same make of vaccine or any of its components.

  • Pregnancy or maternity

Current government advice is that pregnant women should be offered a vaccine, but that ideally they should not be offered the AstraZeneca vaccine. This could potentially lead to delays in getting vaccinated. Indirect discrimination does not apply to the protected characteristic of pregnancy and maternity; however, a woman who is disadvantaged by her employer's vaccination policy due to pregnancy or maternity could bring an indirect sex discrimination claim.

  • Race

Research by SAGE published in December 2020 showed marked differences between different ethnic groups in willingness to receive the COVID-19 vaccine.

  • Religion or belief

It's possible that the protected characteristic of religious or philosophical belief could protect certain religious or moral objections to the vaccine.

Note that:

  • The COVID-19 vaccines currently being used in the UK don't use pork gelatine and are endorsed by the British Islamic Medical Association, Hindu Council UK, and the Board of Deputies of British Jews (that doesn't, though, stop religious objections on other grounds).
  • Laws and regulatory agencies worldwide currently require that new drugs and treatments are tested on animals before clinical trials on humans. Shark liver oil is also being considered or used in some vaccines. While veganism is a protected belief, the Vegan Society accepts that vaccination 'will play a fundamental role in tackling the pandemic and saving lives' and encourages vegans to look after their health and that of others. But it doesn't represent all vegans.
  • Other employees may reject the vaccine because embryonic tissue was used to test or develop the vaccine.
  • Anti-vaccination beliefs based on a wide variety of conspiracy theories may not be protected as a philosophical belief. That's because there isn't an adequately coherent belief system behind them and such beliefs may not be worthy of respect in a democratic society. That doesn't stop such beliefs being protected if the basis for them exists less at the fringes.

Avoiding indirect discrimination

You would need to ensure that any mandatory vaccination requirement is justifiable as a proportionate means of achieving a legitimate aim, or is phrased in terms that allow for exceptions.

The burden is on you to show justification. You must show that:

  • You were pursuing an identified legitimate aim. Protecting the health and safety of your staff, service users and third parties will very likely be an uncontroversial legitimate aim.
  • The measures taken to achieve that aim were appropriate. You must show that your actions actually contribute to the pursuit of the legitimate aim. For evidence that it is appropriate, you will need to show that vaccinations prevent transmission of the virus. While there is currently insufficient evidence to support the position that vaccination totally prevents transmission in the workplace, there is evidence that it reduces the risk of transmission. In any event, it would be difficult to criticise an employer for trying to reduce transmission in its workplace by encouraging vaccination, even if it was subsequently shown that this had little or no impact.
  • The measures taken to achieve that aim were proportionate. To establish this, you must demonstrate that the measures taken were 'reasonably necessary' to meet the legitimate aim. Your actions will not be considered reasonably necessary if you could have used less discriminatory means of achieving the legitimate aim.

On this basis, proportionality may be a more difficult hurdle for employers at the current time. Compliance with the COVID-secure guidelines and introducing regular testing could be a more effective and less discriminatory means of achieving a health and safety legitimate aim.

Direct discrimination

An employer's actions in requiring vaccination of a particular employee, or in treating them less favourably because they are unvaccinated, could directly discriminate against them and breach section 13 of the Equality Act 2010.

Unlike indirect discrimination, direct discrimination cannot be justified unless it is on the ground of age.

Can I take action against staff who refuse to be vaccinated?

In theory, assuming you've legitimately introduced a compulsory vaccination policy or a contractual vaccination requirement, yes. But there will be risks.

Physically enforcing vaccination will be a form of assault and therefore, a criminal offence. Also, compelling staff to get a vaccine who then suffer an adverse reaction, could result in a personal injury claim against you.

Instead, an option is to start disciplinary proceedings based on the failure to comply with a reasonable management request arising from a policy or contractual requirement. You must start with a proper investigation into the employee's circumstances. There are many reasons why they might reasonably refuse a vaccine: e.g. medical advice, religious or philosophical belief, pregnancy, disability, wanting to keep control over their medical choices or wanting to wait for more evidence of safety.

The critical point is that you must always allow for exceptions. Listen to any concerns and objections and take them seriously. Even if you've put in place a policy or contractual requirement, you won't be entitled to act on it if your employee's refusal is reasonable.

Note that:

  • Pressuring employees to be vaccinated through threats of disciplinary action, carries real and potentially significant legal and financial risks. A dismissal resulting from the implementation of such a policy may give grounds for claiming unfair dismissal. It could also negatively affect your business reputation and staff morale.
  • Any policy or contractual requirement about vaccination that adversely affects people from a protected group (race, age, sex, disability and religion/belief being the most likely) will potentially be indirectly discriminatory.

Even if you don't require staff to be vaccinated, you should ensure that your workplace policies do not indirectly discriminate against unvaccinated staff.

For example, it may be possible (depending on a whole range of factors, including the effectiveness of the vaccine against existing variants) that you could relax COVID-secure protective measures only for vaccinated staff once all age groups in your workplace have had a reasonable opportunity to be double vaccinated. Employees who cannot be vaccinated can continue to use appropriate protective measures in accordance with current COVID-secure guidelines, to protect both them and other unvaccinated colleagues, clients/customers and workplace visitors. Alternatively, they could be redeployed.

Before implementing a policy that treats vaccinated and unvaccinated staff differently, you should take legal advice. Keep in mind that you still risk discrimination claims being made against you, as some of those who are aren't vaccinated may have a disability that prevents it.

A better, less risky approach is to encourage staff to be vaccinated. Educate them on the benefits of vaccination by providing impartial, factual information to help them make an informed decision.

Can I prevent unvaccinated staff from entering the workplace?

You should carefully consider whether it is appropriate to prevent unvaccinated staff from entering your workplace before making a decision. Current government advice is clear that the vaccination status of a workforce has no impact on the COVID-secure guidelines you should follow. Further, the extent to which vaccination reduces the risk of transmission is still unclear.

But this must be balanced against your health and safety obligations to your staff and those entering the workplace. There can be serious consequences for non-compliance.

For most employers it will boil down to whether there are any extremely vulnerable staff working within 1 metre of unvaccinated colleagues on a daily or other regular basis. Even then, alternative measures should be considered, such as re-arranging working time pattens to avoid prolonged contact or re-assigning individuals to a different location in the workplace.

Where unvaccinated staff are retained under a zero-hours contract, you could simply not offer future work to them. However, you should consider whether there are any potential discrimination risks.

For staff on fixed hours, you could consider all the alternatives to vaccination, such as:

  • allowing them to continue to work from home, if possible;
  • temporarily changing their role or responsibilities to minimise risk in the workplace as far as possible;
  • regular testing; and
  • regular health and safety reviews to ensure that you are up to date with, and properly implementing, the COVID-secure guidelines for your particular industry.

However, you must ensure that staff working remotely do not suffer any detriment, and consider that vaccinated workers might consider it a detriment to be required to come back to work. To facilitate workforce relations, a hybrid working arrangement for all staff may be preferable.

What are staff entitled to be paid if they refuse to be vaccinated?

This issue should only arise where you have lawful grounds to prevent unvaccinated staff from entering the workplace.

You must pay staff who can undertake their role remotely as normal.

If they are unable to carry out their role remotely, the issue of pay is problematic. They will argue that they are willing and able to work and should therefore be paid in full. However, your position will be that they cannot work for health and safety reasons.

Statutory sick pay is not available where a worker is fit and able to work. Workers who were shielding were an exception to this, but shielding has now ended in parts of the UK.

Assuming that there are no medical or other legal grounds for not being vaccinated, your options include:

  • Laying-off employees – if their contracts allow it.
  • Suspending them for disciplinary reasons – but they will be entitled to be paid in full until the outcome of the disciplinary procedure.
  • Asking them to use their annual holiday allowance or taking unpaid leave.

Note that where an employee is unable to be vaccinated for medical reasons, or refuses vaccination on, for example, religion or belief grounds, it is possible that their inability to work is due to an 'unavoidable impediment' or external constraint and you must continue to pay them.

Can I relax safety measures after vaccination?

The short answer is not yet. The government still has COVID-secure guidelines for employers to follow, as it's still too early to rely on vaccinations to dispense with them.

You should therefore be cautious about treating the vaccine as a mechanism to remove any measures. Instead, continue to follow government guidance and monitor it for changes.

But vaccination might alter your approach for some highly vulnerable staff. Having the vaccine means that most of these workers can better protect themselves and, subject to an individual risk assessment and both vaccine doses, they may be able to return to the workplace. However, you should consider their individual needs and support them in taking any additional precautions advised by their clinicians.

Also, you may need to take extra steps to protect any staff who have a genuine reason (medical or otherwise lawful) that prevents vaccination.

Are there data protection implications?

If you collect any information about whether staff have (or haven't) been vaccinated, you must handle it as special category data in accordance with the Data Protection Act. See the Information Commissioner's Office guidance on vaccinations for more.

Bringing staff back to the workplace and handling refusals

Now that many government restrictions have been lifted, you may want or need to bring staff into the workplace to work. Understandably, staff may remain reluctant or unwilling to return.

Primary objectives

To avoid any disputes, genuinely consider all objections. Put everything in writing. If necessary, make further enquiries to confirm or establish facts.

The key principle guiding your decisions should be the safety of your staff, particularly those with medical conditions that mean, or may mean, they're at greater risk to/from infection. You're ultimately liable for their wellbeing.

Using a grievance procedure

Any objection should be treated as a grievance. Acas say their code of practice, which you can follow alongside your own grievance procedure, still applies. However, consider whether you can do so fairly in the current situation. In particular:

  • Consider the health of everyone involved in the procedure.
  • Although you are no longer required to observe social distancing rules, is it appropriate to use video technology given the grievance concerns returning to the workplace? Do all those involved have access to it? Does anyone have a disability or other issue that makes using it difficult, and if so, can you make reasonable adjustments?
  • Will any necessary information (e.g. medical evidence) be required? Is it obtainable?

Go through the options with all those involved. If you decide to proceed, put your reasons why in writing.

Employers in Scotland are expected to follow the principles of the Fair Work Convention's Framework, for all decisions.

Legal protection

Employees and workers are protected by law if:

  • they believe being at work or doing certain tasks puts them in serious and imminent danger; and
  • their belief is judged to be reasonable at the time that they take appropriate resulting action.

The resulting action they could take in these circumstances includes:

  • leaving (or proposing to leave) the workplace or (while the danger persists) refusing to return to it (or any dangerous part of it) if they could not be reasonably expected to avoid the danger; or
  • taking (or proposing to take) appropriate steps to protect themselves (or others, such as members of their household) from the danger. This can include informing their employer of their concerns by appropriate means and not returning to work.

The protection applies even where the employee or worker's reasonable belief is mistaken, the serious and imminent danger is lawful, or the danger is caused by customers or other staff not following the rules. It doesn't matter if you disagree – their belief (from their perspective) just needs to be reasonable.

If an employee is dismissed due to this, they can make an unfair dismissal claim, no matter how long they've worked for you (workers do not have a legal right to do this).

Employees and workers are also protected in these circumstances from being subjected to a detriment (such as being suspended, having their pay deducted or, in the case of a worker, having their contract terminated).

Employment Tribunals have considered several cases on this issue in the context of the COVID-19 pandemic. These concern events in the early stages of the pandemic, when less was known about the virus and vaccines hadn't been developed and approved.

They show the importance for employers of being able to demonstrate that they have implemented appropriate COVID-related health and safety measures. This is now somewhat easier since the government published its sector-specific guidance and the HSE published guidance on making workplaces COVID-secure.

The cases also confirm that the valid exercise of the right to stay away from work is not just a question of your staff expressing vague anxieties about their working environment:

  • They'll normally be expected to explain clearly why they believe their workplace is dangerous and give you the opportunity to explain the steps you have in place to protect them and give you time to consider what else you can do to protect them or deal with their concerns.
  • They must also be willing to take individual precautions to protect themselves and follow all reasonable management instructions put in place to protect them.
  • They must be able to show that the risk is serious and imminent despite anything they and you can do to reduce it.

At-risk staff

Extremely vulnerable staff

Even though the shielding programme has ended, requiring such staff to return to the workplace may still expose you to a health and safety liability risk, as they may need more than the usual safety measures to protect them. If the risks cannot be averted or minimised, it may be reasonable for them to claim that there's an ongoing serious and imminent danger if they return to the workplace. You should first consider limiting their work activities or duties, otherwise consider either asking them to remain at home or making use of the furlough scheme.

See the Government guidance for each country for more:

Vulnerable staff or those with other potentially dangerous health conditions

These generally include any staff who are regarded by the NHS as people at higher risk. They're not 'extremely clinically vulnerable', but they may be at greater risk of being infected and/or suffering an adverse outcome if they get infected. This will also usually include those who:

  • are 70 or older (particularly if they are male)
  • are obese or have a high body mass index (40 or above)
  • are pregnant
  • have a disability
  • have diabetes, heart, kidney or liver disease or a lung condition
  • have a condition affecting the brain or nerves
  • have a condition that means they have a high risk of getting infections
  • are taking medicine that can affect the immune system

If the risks cannot be removed or minimised, it may be reasonable for them to claim that there's an ongoing serious and imminent danger if they return to the workplace.

Members of the BAME community

Medical evidence confirms that Black, Asian, and Minority Ethnic people have a far higher risk of death from COVID-19.

To avoid potential liability under race discrimination laws, ensure that any decisions you make about returning to the workplace are fair and consistent, unless you have a good business reason for different treatment. Taking extra precautions for BAME staff compared to (non-vulnerable) white staff could be viewed as indirect discrimination – however, it is likely to be justified on the basis of the current medical research.

If the risks cannot be removed or minimised, it may be reasonable for them to claim that there's an ongoing serious and imminent danger if they return to the workplace.

See our sections on race discrimination in England, Wales and Scotland, and Northern Ireland.

Options for at-risk staff

If you're allowing or requiring such staff to return to the workplace, remember you are liable for their health and safety.

You must perform a risk-assessment. The level of risk ought to be acceptable to both you and them.

Take steps to remove or (at least) minimise it the level of risk. Options to reduce it include agreeing to:

  • Give them the safest available on-site roles
  • Adjust their working times (e.g. to avoid rush hour)
  • Remove or limit any higher-risk work activities or duties.

If this isn't possible, or if the risk remains unacceptably high for other reasons, make some temporary arrangements to give you time to agree or implement additional safety measures.

First consider if they can remain working from home. Note that some staff may want or need to come back to the workplace, but to avoid risking liability, ask them to remain there temporarily. If possible, agree a timeframe.

If they cannot work from home, try and agree to make temporary changes to their workplace activities or duties that will include minimising their contact with other staff. If necessary, keep them at a safe distance from clients or customers and other visitors to the workplace. This will vary depending on the industry sector and country they work in, but they generally should be staying 2 metres away from others at most, if not all, times. If needed, offer them some protective equipment such as a high-quality face covering.

If you are unable to agree, consider laying them off for a limited time if they're an employee and their contract gives you a right to do so, or agree for them to temporarily do alternative work from home.

Use the time you have to find solution and make and agree longer-term options.

If they have a disability, comply with your legal responsibilities by obtaining a medical report to find out the risks associated with their medical condition. Ask for any specific advice from their doctor, such as:

  • which of their duties will increase the risk of them contracting the virus at work;
  • which of their duties should they not be performing; and
  • whether they should return to work at all.

If their doctor has advised them that they should not return to work, they will be entitled to receive statutory sick pay, subject to giving you a fit note. See below under 'Disabilities' for more.

You can also make enquiries to find out what other businesses in your sector are doing, so you have more information.

Note that if they want to return but you want them to stay at home, they'll be entitled to full pay if they can work from home.

Disabilities

Staff who are extremely vulnerable or have other potentially dangerous health conditions, could have a disability that's recognised under Equality Law. If they do, you're legally obliged to make reasonable adjustments. This can include letting them stay at home.

If they can work from home, this should not be an issue. If they can't, whether or not that means doing so on full pay is unclear, unless there's a serious and imminent danger to them returning to the workplace, in which case they must remain on full pay.

It's possible that requiring them to return could amount to indirect discrimination – this can be justified, but may be difficult to establish depending on the particular situation. See our sections on Disability discrimination in England, Wales and Scotland and Northern Ireland.

If the condition isn't recognised as a disability under equality law, you don't have to make any adjustments like letting them stay at home. But to be certain (and in line with your health and safety obligations), consider getting a medical report from their GP. If the report is inconclusive, follow it up with more questions. If medical evidence suggests they're at greater risk, check this against your workplace risk assessment. If you both agree on a return, take the same precautions stated above.

Financial support is available for staff living in England, Scotland or Wales who have a disability or health condition and are returning to their workplace. There's a different system in Northern Ireland

Staff living with someone who's at higher risk

This may mean living with someone who's clinically extremely vulnerable, someone who has another potentially dangerous health condition, or someone who is otherwise more susceptible to contracting the virus (e.g. the elderly).

Although shielding has ended and many are now vaccinated, staff may still harbour concerns about their safety, particularly if they cannot be vaccinated for a medical reason or if they act as their carer, making close contact unavoidable.

If they have a reasonable cause for concern, you could choose to explore the same options described above for at-risk staff.

Again, remember that the person with whom they live may have a disability that's recognised under Equality law – take care here, as you can't treat staff less favourably than others based on the disability of someone they're associated with. See our sections on Disability discrimination in England, Wales and Scotland and Northern Ireland.

Staff suffering from anxiety

Some staff are likely to be anxious about returning amid COVID-19. Depending on the severity, anxiety can be a recognised disability.

If so, you're legally obliged to make reasonable adjustments. This can include letting them stay at home.

If they can work from home, this should not be an issue. If they can't, whether or not that means doing so on full pay is unclear, unless there's a serious and imminent danger to them returning to the workplace, in which case they must remain on full pay, or they can work from home.

Sick leave should be used if they're experiencing stress/anxiety at levels that mean they can't work, so long as they give you a fit note from their doctor.

It's possible that requiring them to return could amount to indirect discrimination – this can be justified, but may be difficult to establish depending on the particular situation. See our sections on Disability discrimination in England, Wales and Scotland and Northern Ireland.

Financial support is available for staff living in England, Scotland or Wales who have a disability or health condition and are returning to their workplace. There's a different system in Northern Ireland

If the condition isn't recognised as a disability under equality law, you don't have to make any adjustments like letting them stay at home. But to be certain (and in line with your health and safety obligations), consider getting a medical report from their GP. If the report is inconclusive, follow it up with more questions.

If medical evidence suggests they're at greater risk, check this against your workplace risk assessment. If you both agree on a return, consider the same precautions as those described above for at-risk staff.

Even if their condition isn't classed as a disability, consider delaying their return – they could be a disruptive influence and are unlikely to be productive in the workplace.

Staff without childcare

Whether schools being open contributes to the virus spread is still a matter of debate. You may find that some staff will not let their child return to school and opt to home school them instead.

If this happens, you can (if possible) let them work flexibly.

There are other options available only to employees:

  • Unpaid parental leave: they can take leave of up to 4 weeks for each child per year in blocks of at least one week. They must give you at least 21 days' notice. This entitlement applies after a year of working for you. You can be flexible about how much leave they take or notice they give you: put any changes you agree in writing.
  • Unpaid dependent care (or emergency) leave: they can take a reasonable amount (usually 1 or 2 days) of time off to take necessary action to look after their child. It's available no matter how long they've worked for you.

If none of the above is suitable, you can suggest they take unpaid leave or use their holiday allowance. Alternatively, you can lay-off employees for limited time if their contract gives you a right to do so.

Note that you could be liable for sex discrimination if the majority of childcare duties are performed by the child's mother. Ensure that decisions are fair and consistent, unless you have a good business reason for different treatment.

See our sections on sex discrimination in England, Wales and Scotland, and Northern Ireland.

Staff who must use public transport

It's currently unclear if you'll be responsible for the health and safety of staff who must use public transport to commute to work, though general legal opinion is that it's unlikely.

However, you owe employees (rather than, for example, workers or contractors) an unwritten duty of trust and confidence. You mustn't do anything to break this, which may include forcing them to take a risk and travel by public transport. They could resign and claim unfair (constructive) dismissal. However, this is so far untested in court.

You should consider any possible options that might help them avoid public transport, such as:

  • giving them access to bikes;
  • fitting more bike storage points; and
  • making more car parking spaces available.

If there is no other choice but to use public transport, try to let them alter their hours to avoid busy times. If possible, offer them personal protective equipment, e.g. masks, gloves.

If you can't persuade them and they're an employee, consider using short-time working or lay off (note the terms of their contract must allow for this). Otherwise, see if they'll agree to a period of unpaid leave.

Remember you have to make reasonable adjustments for staff with recognised disabilities, and carry out special risk assessments for those who are pregnant or new mothers – all of these situations require you to take travel into account.

The UK government has published guidance on how to travel safely using various forms of transport. It includes a checklist of how to plan a safe journey. Share this with staff, in case they haven't read it.

Other reasons

If staff object for some other reason and you don't feel it's justified, write to them and tell them the reasons why you disagree.

If their objection was raised using your grievance procedure, inform them of their right to appeal your decision. Otherwise tell them they can raise a formal grievance using your grievance procedure (if they qualify).

Reassure and explore options

Try to reassure or help them to return, though this will depend on what you can reasonably do. E.g.:

  • If you haven't already, show them a copy of your risk assessment and what action you've taken to make the workplace COVID-safe.
  • Give them evidence of the safety changes that've been made to the workplace: videos and photos of the changes, or a training session on any new procedures.
  • Ask if they'd like to speak to a colleague who's already returned.
  • If it's relevant, offer temporary flexible working arrangements (such as earlier/later start-finish times).
  • Offer another safe site they can work at.
  • Offer them a safer role than their present one to do in the meantime.

Agreeing changes

If you agree changes to working conditions that affect the usual terms of their contracts, even for a temporary period, confirm it in writing.

Staff who don't agree to any changes and still won't agree to returning

If nothing you do convinces staff to return, you could:

  • ask or require them to use their annual leave;
  • if they're an employee, use short-time working or lay off, if the terms of their contract say you can do this; or otherwise
  • see if they agree to be put on unpaid leave.

If you can't agree, you may have to issue a management instruction for them to return to the workplace. If they continue to refuse, consider starting disciplinary action against them (unless they're self-employed), warning them that continuous refusals may result in their dismissal.

If all other options fail, redundancy may be the only alternative.

Dealing with staff forced to self-isolate after holidaying abroad

Government rules can mean staff who have been on holiday abroad may have to self-isolate for 10 days when they return to the UK, depending on which country they visited.

In some situations, the Test to Release scheme allows people returning to England to reduce their self-isolation period if they pay for a private COVID-19 test and get a negative result. You could discuss making use of this and agree who will pay for it.

Dealing with requests

Ask staff to tell you in advance if they plan to travel abroad, even if at that point there is no requirement to self-isolate after returning. This will help you to plan and make sure they're fully informed about what'll happen if and when they self-isolate – when they need to contact you, what work they might be able to do, whether or not they'll be paid, and if any other arrangements are needed (e.g. staff cover).

Don't put a blanket ban on staff using annual leave to visit a country that will result in self-isolation when they return, particularly if you have staff who travel abroad to visit close members of their family. Doing so is likely to be unreasonable and will risk discrimination claims.

Don't impose travel rules that treat staff unequally or inconsistently. For example, don't automatically reject leave requests from staff who can't work from home while automatically approving those from staff who can.

You have a right to refuse a request to take annual leave, if you know that the staff member will have to self-isolate on their return and you can't accommodate it. Remember that new rules potentially allow up to 4 weeks of annual leave to be carried over into the next 2 holiday years (see below for more on this). But take care – to avoid discrimination claims, ask why they're travelling abroad. It might be more important than a simple holiday.

If a requirement to self-isolate is announced after you've approved the employee's leave request, it's possible to cancel it. Unless their contract says otherwise, you'll need to give at least as much notice as the amount of leave being taken. Keep in mind though that it might be unreasonable to do this unless you have a strong business reason, particularly if they've incurred non-refundable holiday costs.

Options for when they return

Those who need to self-isolate in this situation aren't eligible to receive statutory sick pay, unless during the self-isolation period they become eligible for another reason (e.g. they start showing coronavirus symptoms).

The options are (either alone or in combination):

  • Work from home: for staff who can't usually do this, consider whether there is suitable work you can give them. Note that this may mean temporarily giving them different work. You may need to provide equipment. Ideally, they should be able to do the work with minimal training. While this might seem inconvenient, you should particularly consider it if you have other staff who can ordinarily work from home, as it will help show that you're being fair and consistent in your procedures.
  • Use annual leave: you can ask staff to do this or can require them to do it by giving them the required amount of notice (double the length of leave you want them to take, unless their contract says otherwise). This may not be a practical option if return from the destination suddenly requires self-isolation at short notice. Both scenarios require them to have enough annual leave left.
  • Use short-time working or lay off: you can only do this if they are an employee and the terms of their contract allow it. If they've been abroad on business then this isn't really a fair option.
  • Take unpaid leave: you can do this if both parties agree and you cannot use short-time working or lay off. Again, if they've been abroad on business then this isn't really a fair option. Note that in some situations employees might be able to use their right to take either unpaid parental leave or unpaid dependent care (or emergency) leave.

Disciplinary action is possible in some situations. Note that the requirement to self-isolate is the law, so punishing staff for complying with it is unlikely to be fair – unless they have, without good reason, failed to comply with any reasonable requirements that you've put in place. Follow your disciplinary procedure and ideally get legal advice first.

The UK government has published a guide for workers and employers.

Dealing with annual leave during COVID-19

Carrying over holiday

Staff are entitled to at least 5.6 weeks of annual leave per year. Ordinarily, only 1.6 weeks of that can be carried over (if you allow it). Temporary rules (the Working Time (Coronavirus) (Amendment) Regulations) now allow the remaining 4 weeks to be carried over into the next 2 holiday years.

The carry-over right isn't automatic. It only applies where the pandemic has meant that it's not been reasonably practicable to take some, or all, of the 4 weeks in the year to which it relates.

What 'reasonably practicable' means isn't completely clear. However, government guidance lists factors you'll be expected to take into account. These include (among others):

  • When your holiday year ends: e.g. if it ended during the height of lockdown and there wasn't time to take leave due to increased workload
  • If business demand has risen due to the pandemic and they've had to continue working to cope with it
  • Their role, e.g. they're a key worker
  • Whether enough staff have been available to provide cover

The guidance doesn't mention travel restrictions or reduced travel options as examples of why taking leave wasn't reasonably possible. This suggests you could refuse holiday carry-over where that's the only reason.

However, elsewhere in the guidance (on requiring leave to be taken while furloughed), it says you should "consider whether any restrictions the worker is under such as the need to socially distance or self-isolate would prevent the worker from resting, or enjoying leisure time, which is the fundamental purpose of holiday" (as defined in law).

It's safer to take a flexible approach – it'll likely also result in more rested and motivated staff.

You should:

  • Give them the chance to take any holiday that can't be carried forward, before the end of your holiday year
  • Take reasonable steps to ensure they can take as much holiday as possible in the correct holiday year
  • Let them use carried-forward holiday first.

You can require staff to take holiday, as long as you give them proper notice (double the length of leave you want them to take). As mentioned above, this might not satisfy the fundamental purpose of holiday (resting or enjoying leisure time).

The likely safest time to require holiday to be taken is at a time when all or most of any lockdown restrictions are lifted, and not while staff must self-isolate. Otherwise, staff may claim that this isn't true holiday and shouldn't count as part of their annual leave allowance (which could have a financial effect later if, say, they're made redundant).

Note that this is untested in law, and there's scope for a lot of legal argument. Another possible way to reduce the risk is to ask them for their written views or acceptance when giving them notice to take holiday. If they agree or say nothing, this may help you later.

Homeworking

The number of people working from home has soared during the pandemic. See our section on homeworking for the issues you need to think about while staff are working at home.

Staff expenses

There's guidance on How to treat certain expenses and benefits provided to employees during coronavirus.

There's also clarification on Which expenses are taxable for staff working from home due to coronavirus.

Linked to this, the government have announced allowed tax and NIC exemptions for coronavirus-related reimbursed home office expenses, which applied from 11 June 2020 to amounts reimbursed on or after that date but before the end of the 2021-22 tax year (5 April 2022).

Furlough and redundancy payments

If you choose to dismiss a furloughed – or flexibly furloughed – employee (e.g. through redundancy), certain statutory payments must be calculated using their normal (pre-furlough) pay and not their (reduced) furlough pay.

This applies to redundancy payments, along with other statutory payments linked to ending an employee's employment (usually a multiple of a week's pay). The payments covered are:

  • Statutory notice pay
  • Statutory redundancy pay
  • Pay for time off taken by the employee to look for new employment or arrange training, following notice of dismissal
  • The statutory amount payable if you fail to provide an employee with written reasons for their dismissal
  • Statutory compensation for unfair dismissal
  • The statutory amount payable if you're unsuccessful in an unfair dismissal claim and fail to comply with a tribunal or court order to reinstate or re-engage the employee.

The legislation explains how to calculate the above payments, including if the employee's pay or hours vary. In essence, though, for the calculation of a week's pay, an employee's furloughed hours are treated as if they were normal working hours. The pay related to those furloughed hours is treated as if they'd been worked, ignoring any reduction made because the employee was furloughed.

Amendments to right-to-work checks

Temporarily, right-to-work checks can be made:

  • Via video call; or
  • By job applicants and existing workers sending scans or photos of documents via email or a mobile app, rather than sending originals.

You must still make the check and can use the Employer Checking Service where possible. The government has also updated its right to work guides.

These temporary measures will end on 5 April 2022 (extended from 31 August 2021). After that, you will need to see the originals of documents (i.e. in person), unless you can use the Employer Checking Service.

Note that there's no need to redo any checks that you made using the temporary measures (provided you did so properly).

Data protection and coronavirus

The Information Commissioner's Office has created an information hub with guidance on how to tackle data protection issues regarding COVID-19.

You shouldn't ignore data protection issues during the pandemic – but if you're concerned that your data protection practices might not meet your usual standards or about delayed responses to information rights requests, the ICO have said they won't penalise organisations that they know need to prioritise other areas or adapt their usual approach.

Temporary changes to criminal record checks

England & Wales

The Disclosure and Barring Service has temporarily changed its guidelines for ID checking and subject access requests.

Also, people in eligible roles will be given free-of-charge DBS checks and/or a fast-track emergency checks.

They have also published factsheets and updated guidelines.

Scotland

Disclosure Scotland has suspended the payment of fees for urgent applications of certain coronavirus response workers, until 25 March 2022. Any urgent applications can be made online.

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