Archive

Covid-19

New shielding guidance from 1 April 2021

Posted on: March 24th, 2021 by Ginny Hallam

From 1 April 2021, those classed as extremely clinically vulnerable (ECV) will no longer be advised to shield according to new government guidance. Here’s what you need to know:

Statutory Sick Pay – from 1 April those individuals who were classed as ECV will no longer be eligible for SSP (or Employment and Support Allowance) if they are not working.

Return to work – the government are still advising everyone to work from home where possible. If those classed as ECV cannot work from home, they should return to the workplace.

Communicate – if those classed as ECV are unable to work from home, they may still have concerns about returning to work. Communicate early and reassure them of the safety measures you have in place to keep them, colleagues, customers, and clients safe.

Flexibility – travel to and from the workplace may also be a concern if employees need to use public transport. Consider possible flexibility around start/finish times to support ECV employees to avoid peak rush hour times and any other adjustments you might reasonably make.

Get in touch if you’d like our advice or support in managing a safe return to work.

This update is accurate on the date it was sent (24 March 2021) but may be subject to change which may or may not be notified to you. This update is not to be taken as advice and you should seek advice if anything contained within affects you or your business.

New Tribunal case – dismissal for Covid-related concerns

Posted on: March 22nd, 2021 by Ginny Hallam

If an employee refuses to attend work due to Covid-related health and safety concerns, will a dismissal be automatically unfair? A recent Tribunal judgement has provided useful guidance.

Facts of the case

The employee refused to attend work due to Covid-related concerns, stating there was an imminent danger to his health and safety. He was dismissed and brought a claim for automatic unfair dismissal.

The Tribunal decided the dismissal was fair in the circumstances – the employee did not have a reasonable belief of serious danger in the workplace – simply that there was danger everywhere. Even if he did believe the danger was work-related that belief was unreasonable given the employer had put measures in place to reduce the risk of Covid transmission.

Here are a few takeaways:

Risk assessment – make sure yours is up to date to demonstrate you’re continually thinking about the risks employees face. There’s no expectation for you to eliminate risk entirely, but you do need to do everything reasonably practicable to minimise risks.

Clear policies – communicate the measures you’ve put in place and what’s expected of employees. Set out how employees can raise their concerns. Click here for how to access our safe return to work policy.

Communicate – ensure employees have access to your policies and procedures and communicate with regular reminders the steps you’re taking to keep everyone safe. Where employees do have concerns, listen proactively, keep a record, make adjustments where necessary, and reassure that you’re taking all necessary steps.

If you need support with some of the challenges arising from welcoming employees back to work, get in touch to access our ‘safe return to work’ policy or further advice.

This update is accurate on the date it was sent (22 March 2021), but may be subject to change which may or may not be notified to you. This update is not to be taken as advice and you should seek advice if anything contained within affects you or your business.

Coronavirus workplace testing

Posted on: March 11th, 2021 by Ginny Hallam

Lateral flow workplace testing kits are now available for free to all employers in England, irrespective of size. You’re not obliged to carry out workplace tests, but if you’re thinking about using them in your workplace here are a few things to consider:

Can I require employees to be tested – unless you have the contractual right to do so (which is unlikely) you can’t insist that employees use the tests if they don’t have symptoms. If an employee has no justifiable reason for refusing a test, it may be possible for you to treat their actions as a refusal to follow a reasonable instruction enabling you to take disciplinary action, provided that you can show that workplace testing was necessary to protect the health and safety of colleagues. Always take advice before taking this route to avoid potential claims of discrimination or constructive dismissal.

Deadlines – you need to register (here) on the government website by 31 March 2021 to receive the testing kits. They’ll be free until 30 June 2021.

Data protection – before carrying out workplace testing, you need to explain to employees why you’re doing it, what data you’ll be collecting and who you will share this data with. The easiest way to do this is with a workplace testing policy and a data protection impact assessment. Click here for our support.

Practicalities – lateral flow tests don’t require a trained individual to administer and will give an onsite result in 20-30 minutes. They should identify employees who are infected with coronavirus even if they’re not showing symptoms. You can access specific government guidance here.

If you subscribe to Intelligent Employment, we’ve added a comprehensive coronavirus workplace testing guidance note to the document platform (under HR tools). If you don’t currently access Intelligent Employment, get in touch to find out more.

This update is accurate on the date it was sent (11 March 2021), but may be subject to change which may or may not be notified to you. This update is not to be taken as advice and you should seek advice if anything contained within affects you or your business.

No face mask, no job?

Posted on: March 10th, 2021 by Ginny Hallam

Although the number of coronavirus cases continues to drop, it still seems that ‘normality’ may be a way off. What are your options in respect of those employees who refuse to follow policies dealing with face coverings, social distancing, temperature checks and tests?

An Employment Tribunal has recently provided useful guidance on how to deal with those employees refusing to wear a face mask.

Facts of the case

Mr Kubilius was a delivery driver for Kent Foods. Whilst making a delivery, he was asked twice by a customer to wear a face covering – he refused. Mr Kubilius was dismissed. The tribunal found that the dismissal was fair in the circumstances. Whilst this shouldn’t be used as a case that determines that the dismissal of every employee who refuses to wear a face covering will be lawful (as the decision isn’t binding and was decided on specific facts) it is a useful indication as to the approach tribunals are currently taking.

Here are a few takeaways from the case:

Clear policies – set out in writing the behaviours you expect colleagues to follow and make clear the consequences of failing to do so.

Communicate consistently – it’s important to ensure that your policies are regularly communicated, trained on, and accessible. Failure to do so can expose you to arguments that colleagues hadn’t agreed to them/ weren’t aware of them.

Care personally – it’s important to understand whether there’s an underlying reason for failing to wear a face mask (e.g. an underlying health condition). Failure to consider reasonable adjustments for those colleagues could expose you to claims for discrimination.

Take advice – before taking any action take advice as much depends on the factual circumstances of each case.

If you need support with the challenges, employment law risks and considerations of returning employees back to work and refusals to comply with your safety policies, get in touch to access our ‘safe return to work’ policy or further advice.

This update is accurate on the date it was sent (10 March 2021), but may be subject to change which may or may not be notified to you. This update is not to be taken as advice and you should seek advice if anything contained within affects you or your business.

Employees refusing a coronavirus vaccine

Posted on: March 4th, 2021 by Ginny Hallam

If an employee refuses the vaccine, can they be excluded from working with others?

Taking this approach carries a number of risks:

Discrimination – asking employees who’ve refused a vaccine to work from home or ending their employment creates significant risks of successful discrimination claims if the employee’s reason for refusing is due to a ‘protected characteristic’ such pregnancy or a medical condition (to name a few).

Breach of trust and confidence – much like forcing an employee to have the vaccine (see our previous update), treating employees differently because they can’t or won’t have the vaccine could be considered a breach of trust and confidence, entitling the employee to resign and bring a constructive unfair dismissal claim.

Reputational damage – you’re likely to hit the headlines for introducing policies that effectively ‘segregate’ vaccinated and non-vaccinated employees.

Alternatives – think about how you can continue to maximise existing precautions and safety measures in the workplace (social distancing, face coverings, hand washing etc.) along with updating your risk assessment to mitigate the potential impact and create a safe environment for all.

Click here to access our free comprehensive coronavirus vaccine guidance note.

This update is accurate on the date it was sent (5 March 2021), but may be subject to change which may or may not be notified to you. This update is not to be taken as advice and you should seek advice if anything contained within affects you or your business.