These FAQs cover issues that employers may need to consider in relation to Covid-19 and the workplace.
Note that the devolved administrations have separate powers over Covid-19 related measures in their respective countries, so the position in Scotland, Wales and Northern Ireland may differ. These FAQs therefore focus on the position in England only. They take into account the Government’s plan for “Living with Covid” (which we refer to in these FAQs as the “Living with Covid Plan”).
1. What Covid-19 workplace safety requirements must employers now comply with? (Last updated 19/07/2022)
Under health and safety law, employers are under a duty to take all reasonably practicable steps to ensure a safe working environment. They are required to conduct risk assessments to identify risks in the workplace and measures to minimise these risks.
The Government’s ‘Working Safely’ guidance that applied during the pandemic was withdrawn in April 2022, and there is no longer any specific requirement for employers explicitly to consider Covid-19 in their health and safety risk assessments. However, this does not necessarily mean that no Covid-19 related workplace safety measures will be required. Indeed, the current guidance, entitled ‘Reducing the spread of respiratory infections, including Covid-19, in the workplace’, highlights employers’ general health and safety obligations and recommends that employers take steps such as encouraging their workforce to get vaccinated, ensuring good ventilation and maintaining hygiene standards in the workplace to help reduce the risk of infection. Employers will need to consider what approach to take at their workplace based on their particular circumstances.
Make UK’s health and safety experts can provide tailored support to employers to conduct risk assessments or workplace audits and identify appropriate Covid-19 safety measures. Click here for further information.
2. What if an employee who has been working remotely during the pandemic wants to continue working from home, for either some or all of the time? (Last updated 19/07/2022)
Having worked remotely for much of the pandemic, some employees may have been reluctant to return to the workplace. This could be for a variety of reasons, e.g. because they feel they were more productive at home, they enjoyed not having to commute, they found remote working made it easier for them to accommodate caring responsibilities, or they were concerned about Covid-19 risks (on which see question 3, below). Accordingly, they might have asked to continue working from home on a long-term basis, or to move to a hybrid working arrangement whereby they split their time between their home and the employer’s premises.
Employees whose contracts of employment provide that their place of work is the employer’s premises are unlikely to have an automatic legal right to continue to work from home, either some or all of the time. Where remote working was implemented as a temporary arrangement based on applicable health and safety guidance advising everyone to work from home if possible, and employees were invited to return to the workplace when that guidance was removed, their legal place of work would still be the employer’s premises and their contracts would not have changed. However, the guidance recommending homeworking was removed many months ago and employees who are still working remotely may therefore have developed an expectation that they remain entitled to work from home in the longer term. Whether or not there has been a variation of employees’ contracts in such cases will depend on the circumstances and we recommend that you seek advice on your particular situation.
Employees with at least 26 weeks’ continuous service are legally entitled to make a statutory request for flexible working – and a request for a contractual home or hybrid working arrangement would count as such a request. There is a specific legal regime governing how employers must handle such requests and setting out limited permitted reasons for refusing them. These include, for example, where the proposed working arrangement would have a detrimental effect on the employer’s ability to meet customer demand, or a detrimental impact on quality or performance. Although an employment tribunal is not entitled to look to see whether you acted reasonably in deciding to reject a statutory flexible working request for one or more of the permitted reasons, it is entitled to look at the ground which you assert was the reason for rejection to see whether it was ‘factually correct’ for you to rely on this ground. Accordingly, where an employee has been working remotely for a prolonged period without any relevant detriment being observed, it may be difficult (although not necessarily impossible) for the employer to refuse their request on that basis and we recommend that you seek specific advice in such cases.
Handling formal flexible working requests can be administratively burdensome. Some employers might therefore have chosen to facilitate a less formal process for employees to request home and hybrid working arrangements where they have worked from home successfully during the Covid-19 pandemic. For example, employers might have allowed such arrangements to be agreed by way of a discussion between the employee and their line manager, confirmed by letter and being made subject to the terms of any home and hybrid working policy operated by the employer. Note, however, that if an employer who has taken such an informal approach wishes to refuse a request made in this way, we would recommend that it still identifies one of the permitted reasons for refusing a statutory flexible working request.
If an employer agrees to an employee’s request to move to a long-term home or hybrid working arrangement, there are various legal and practical issues they will need to consider. Make UK member companies can access guidance on these issues and our template home and hybrid working policy in the HR and Legal Resources section of our website. Non-members can download the template Home and Hybrid Working Policy and HR Manager’s Manual on home and hybrid working for free.
3. Can an employer take any action against an employee who refuses to work at the employer’s premises due to concerns about Covid-19? (Last updated 19/07/2022)
If an employee were to refuse to attend the workplace due to concerns about Covid-19, their employer might wish to take action against them, e.g. by withholding the employee’s pay (on the basis that they are not ready and willing to work and therefore not entitled to be paid), taking disciplinary action, or even dismissing them for refusal to obey a reasonable management instruction. However, in these circumstances, there is a risk that the employee could bring a claim for detriment or automatically unfair dismissal under s44 or s100 of the Employment Rights Act. (Note that the requirement to have two years’ service that applies to ordinary unfair dismissal claims does not apply in this context and compensation in such claims is uncapped.) The right to bring a detriment claim also extends to workers.
In order for such a claim to succeed, a tribunal would need to be satisfied that the employee refused to work in the workplace because of a reasonable belief that they would be in serious and imminent danger and that this was the reason for the dismissal or detriment. Whether this can be established will depend on the circumstances. The initial Employment Tribunal decisions that we have seen in cases of this nature have shown tribunals accepting that the Covid-19 pandemic did give rise to circumstances of danger – although whether it was reasonable for the employee in each case to believe that such danger was serious and imminent insofar as it related to their workplace or their work activities, and whether they satisfied the other requirements for a successful claim, varied depending on the facts.
In this regard, maintaining relevant Covid-19 safety measures in the workplace would clearly help to reduce the risk of a s44 or s100 claim succeeding as it could support an employer’s argument that there was no serious or imminent danger and/or that the employee’s belief in such danger was not reasonable. An employer might also argue that, as more people are now vaccinated, the danger posed by Covid-19 is no longer so serious and imminent as it was earlier in the pandemic. Further, employers may point to the Government’s removal of all Covid-19 related legal restrictions as evidence that Covid-19 no longer poses such a serious or imminent danger. Note, however, that this argument may work both ways, as employees may feel that the removal of restrictions has actually increased the risk to them in the workplace. In addition, it may be difficult for an employer to defend a s44 or s100 claim by an employee who has been refused pay, disciplined, or dismissed for refusing to attend the workplace when their role could be performed remotely, if the official advice at the relevant time was that everyone who could work from home should do so.
There is also an important note of caution if the employee concerned is in the category of people who have been considered clinically extremely vulnerable to Covid-19, who may be in a stronger position than other employees to argue that their belief in serious and imminent danger is reasonable. This may be a particular issue now that there are no legal requirements to self-isolate, the guidance for those with symptoms is very light touch and free Covid-19 tests are no longer generally available. These changes make it likely that there will be cases of Covid-19 in the workplace, whether diagnosed or not, and those who are clinically extremely vulnerable may be worried about attending the workplace and having to work alongside colleagues who have Covid-19. In view of this, clinically extremely vulnerable employees who have returned to the workplace may feel renewed concern and express a reluctance to continue to attend going forwards. Similar arguments may potentially also apply, to some extent, to some individuals who are simply ‘vulnerable’ as opposed to clinically extremely vulnerable to Covid-19 and to those who live with someone who is clinically extremely vulnerable. (Note, though, that the current Government guidance for people who have been considered clinically extremely vulnerable states that most of these individuals are “no longer at substantially greater risk than the general population” from Covid-19. However, individuals with a weakened immune system are still considered to be at increased risk and there is separate guidance for them.)
Although there may be a risk that clinically extremely vulnerable or vulnerable employees might also claim that a requirement to attend the workplace amounts to discrimination arising from disability and/or failure to make reasonable adjustments, employers may be able to justify such a requirement if they can establish that it is a proportionate means of achieving a legitimate aim and/or that there were no reasonable adjustments that could be made to enable the employee to work remotely.
Special considerations also apply in respect of pregnant employees – see question 5, below.
In view of the fact-specific nature of the risks involved, we recommend that you seek advice on your particular circumstances before taking any action against employees who refuse to attend the workplace due to concerns about Covid-19.
4. Do any specific requirements apply in relation to pregnant employees? (Last updated 19/07/2022)
With regard to pregnant employees, employers are under a specific legal obligation to:
- conduct an individual workplace risk assessment;
- alter the employee’s working conditions or hours of work to avoid any significant risk;
- where such alteration is not reasonable, or would not remove the risk, offer suitable alternative work on terms that are not substantially less favourable; and
- where suitable alternative work is not available, or the employee reasonably refuses it, medically suspend the employee on full pay.
Employers would be well advised to take Covid-19 related risks into account when conducting the individual risk assessment for a pregnant employee and consider what measures can be put in place to protect them. Risk assessments may also need to be reviewed and updated as the employee’s pregnancy develops or if the workplace or work conditions change. (One obvious measure could be to allow a pregnant employee whose job can be done remotely to work from home during their pregnancy.)
If the risk assessment identifies that work is not safe, and there are no other alterations to working conditions or hours, or suitable alternative work that would remove the risks relating to Covid-19 in the workplace, then the employer should medically suspend the employee on full pay.
If the employer’s risk assessment concludes that work is, in fact, safe for a pregnant employee, but the employee refuses to attend work because of concerns about Covid-19 in the workplace (which may have increased following the removal of all remaining legal restrictions), there is a potential risk if the employer subjects the employee to a detriment or seeks to dismiss them as a result – see consideration of s44 and s100 of the Employment Rights Act at question 3, above. Note, however, that pregnant employees might have a somewhat stronger claim under these sections, e.g. because there is evidence of a greater risk of severe illness with Covid-19 in late pregnancy. Dismissal in these circumstances also carries the risk of a pregnancy discrimination claim. We suggest that you seek advice if you encounter this situation.
5. What if an employee cannot work as usual due to childcare issues? (Last updated 19/07/2022)
- Children who have mild symptoms of a respiratory infection, such as a runny nose, sore throat, or slight cough, but are otherwise well, can continue to attend school.
- Children who are unwell and have a high temperature should stay at home and avoid contact with other people where they can. They can return to school when they no longer have a high temperature and are well enough to attend.
- Children should not be tested for Covid-19 unless this is recommended by a health professional. If a child has a positive Covid-19 test, they should try to stay at home and avoid contact with other people for 3 days after the day they took the test, if they can.
In view of this, parents are likely to continue to need to take time off work to look after their children from time to time. If an employee needs time off due to childcare issues arising from Covid-19, the following options could be considered:
Emergency leave for dependents
Employees have a statutory right to a reasonable amount of unpaid time off to deal with an emergency involving a dependent (emergency leave). “Dependent” includes of course the employee’s child (or a child who lives with the employee). Employees wishing to take emergency leave should inform their employer as soon as reasonably practicable of the reason for their absence and how long they expect to be away from work.
An employee whose child tests positive for Covid-19 might seek to take emergency leave to care for their child. The right to take emergency leave is a right to a ‘reasonable’ amount of time off. It is intended not as a long-term solution, but rather to allow an employee to deal with an immediate problem and put other care arrangements in place. Ordinarily, it is considered reasonable for an employee to take one or two days off to try to arrange alternative childcare. However, where the child has symptoms that may be Covid-19, the employee may not feel comfortable asking anyone from outside their household to care for their child. Employers might therefore take the view that a longer period of emergency leave is ‘reasonable’ in the circumstances.
(Note that if you subject an employee to detrimental treatment for taking emergency leave, or dismiss them or subsequently select them for redundancy because they took, or sought to take, emergency leave, then they will be entitled to make a claim of detrimental treatment or unfair dismissal to an employment tribunal regardless of their length of service.)
Parental leave, other unpaid leave and annual leave
One possible option is a period of unpaid statutory parental leave, as employees are entitled to take up to four weeks of such leave per child, per year. Another option would be a period of unpaid leave outside the statutory scheme.
Alternatively, employees could take paid annual leave if business circumstances permit – although some employees may not have enough annual leave left to cover the required time off.
Home or hybrid working
In some cases (but certainly not all) an employee who has a home or hybrid working arrangement, or whose role can be performed from home, may be able to accommodate childcare in this way.
If an employer has instructed its employees to follow certain hygiene rules to contain the virus and ensure safety in the workplace and an employee fails to comply with those instructions, the employer will be entitled to take disciplinary action.
It is worth noting that employees have a duty under health and safety law to take reasonable care for their own health and safety and that of others who may be affected by their acts or omissions at work, as well as to cooperate with their employer on health and safety matters. It is strictly a criminal offence for employees to breach these duties. Almost any instruction for an employee to take hygiene measures which are aimed at helping the employer comply with its health and safety duties to employees and third parties will count as a reasonable management instruction for disciplinary purposes.
That said, if an employer is proposing to discipline an employee for refusal to comply with hygiene instructions, the employer should still follow a fair process and take account of the employee’s individual circumstances, ensuring that any such action is proportionate. In particular, if an employee has a disability that means it is more difficult for them to follow a particular rule, before deciding to impose a disciplinary sanction, the employer may need to consider whether there are any reasonable adjustments it should make to the rule to enable the disabled employee to comply, or whether exempting the disabled employee from compliance might itself amount to a reasonable adjustment.
By way of example, an employee with a respiratory condition such as asthma may struggle to comply with a rule that employees wear face coverings in the workplace. Such a rule is likely to be reasonable in the workplace, even though face coverings are no longer required by law in any indoor settings. However, even when the legal requirement to wear a face covering did apply, it was subject to exceptions, e.g. if an individual was unable to comply because of a physical or mental illness, impairment, or disability and employers might well be expected to allow similar exceptions in the workplace. Disciplining an employee who has a medical condition that makes it difficult for them to comply with a rule that employees wear face coverings in the workplace may therefore be risky and we suggest that you take advice on your particular circumstances.
7. Can employers keep a record of which of their employees have and have not been vaccinated? (Last updated 19/07/2022)
Some employers may still be able to keep a record of which of their employees have and have not been vaccinated, but if they do they will need to take care to comply with the requirements of the GDPR.
The ICO guidance in this area flags that employers that continue to collect vaccination information must have a compelling reason to do so. They must be clear about what they are trying to achieve and how asking people for their vaccination status helps to achieve this. Any use of vaccination status data must be fair, relevant and necessary for a specific purpose. If you are collecting vaccination status data on a ‘just in case’ basis, or if you can achieve your goal without this data, you are unlikely to be able to justify collecting it.
If you have previously collected details of employees’ vaccination status but you no longer have a specific reason to retain it, you should ensure that the data is securely deleted.
8. How can employers encourage employees to be vaccinated? (Last updated 19/07/2022)
Employers can encourage employees to accept the vaccine and any boosters when they are offered. This may involve sharing factual information about the vaccine, boosters and the benefits they can provide. However, employers should consider carefully how they approach this – for example, ensuring any communications are consistent with current public health advice and are sensitive towards staff who cannot be vaccinated for medical or religion/belief reasons.
In addition, Acas guidance
suggests that employers wishing to encourage vaccination uptake amongst their workforce could consider various options, including:
- allowing employees paid time off work to attend vaccination appointments, even though there is no specific legal right for them to do so;
- paying employees their full usual pay if they are off sick with vaccine side effects; and
- not counting vaccine-related absences towards trigger points under any absence management policy.
Employers adopting any of these measures may wish to set this out in a vaccination policy.
9. Can employers require employees to be vaccinated? (Last updated 19/07/2022)
The legislation that required people working in CQC-registered care homes, or as frontline NHS staff, to be fully vaccinated was revoked in March 2022 on the basis that the measure was no longer necessary. It is therefore even more difficult for employers at other workplaces, to which the legislation did not apply, to justify requiring their existing employees to be vaccinated. Indeed, there are no statutory provisions that could force individuals to be vaccinated. The Public Health (Control of Disease) Act 1984 specifically states that members of the public should not be compelled to undergo any mandatory medical treatment, including vaccinations.
There are also employment law considerations and risks related to imposing a requirement that employees are vaccinated and taking action against employees who refuse.
For example, any decision to move an employee to a different role, or discipline or dismiss them if they are not fully vaccinated, may give rise to indirect discrimination risks:
- disability discrimination in relation to individuals with certain medical conditions who may not be able to have the vaccine, if they are considered disabled under the Equality Act; or
- religion/belief discrimination, if for example an employee refuses to be vaccinated on the basis of their religious beliefs, or say an employee who is an ethical vegan refuses the vaccine because it was tested on animals. (It is less likely that someone with anti-vaxxer beliefs would be protected, but there isn’t yet any case law on this point. Of course, the question of religion/belief discrimination would not arise for individuals who do not subscribe to anti-vaxxer beliefs, but who simply choose not to take the vaccine.)
Whether indirect discrimination could be justified would depend on the particular circumstances, with the employer having to show that its actions were a proportionate means of achieving a legitimate aim in each case.
In addition, it is possible that requiring vaccination could lead to a risk of claims for constructive (unfair) dismissal. This could occur if employees feel strongly enough to resign in response to a vaccination requirement or to being instructed to work from home or moved to an alternative role for which the employer doesn’t require vaccination.
There is also a risk of unfair dismissal if employees are dismissed for refusal to comply with a mandatory vaccination policy if a tribunal does not agree that dismissal was within the range of reasonable responses in the circumstances. (In this scenario, and also where the employee is claiming constructive unfair dismissal, they would usually need to have at least two years’ service in order to bring the claim.)
When considering these risks, employers will need to bear in mind whether they can establish that it was a reasonable management instruction to require staff to take the vaccine. This will depend on the circumstances. For example, you are unlikely to be able to establish that requiring vaccination is a reasonable management instruction in an office or factory setting where other health and safety measures can be put in place to protect staff and customers. However, if say an essential part of a role involves travel to certain countries and proof of vaccination becomes a legal requirement to travel to those countries or allows an individual to avoid quarantine requirements, then it might be a reasonable instruction to require vaccination for employees in that role. It is also important to bear in mind that, even if requiring vaccination for a particular role could be viewed as reasonable, in order to defend the fairness of dismissing of an employee who refused to be vaccinated, it would be necessary to follow a fair process and this may include considering redeployment to other roles for which vaccination is not required.
As for requiring any new hires to be vaccinated, this is less risky than imposing such a rule for existing employees because job applicants and new joiners will not be able to bring unfair dismissal claims. However, the potential discrimination risks discussed above would still apply. Employers would therefore need to consider whether they could make exceptions to such a rule where applicants cannot, for example, be vaccinated for medical reasons or object to vaccination on the basis of religion/belief.
Employers who wish to impose a requirement for (new or existing) staff to be vaccinated will also need to consider whether they can justify collecting data about vaccination status under data protection law – see question 7, above.
10. What is the guidance for people with symptoms of a respiratory infection or who test positive for Covid-19? (Last updated 19/07/2022)
The guidance that recommended that individuals self-isolate if they have symptoms of or test positive for Covid-19 was removed with effect from 1 April 2022. The current guidance does not use the term ‘self-isolation’, although it does recommend that:
- Individuals who have symptoms of a respiratory infection, who have not taken a Covid-19 test, but who have a high temperature or do not feel well enough to go to work or carry out normal activities, should try to stay at home and avoid contact with other people until they no longer have a high temperature (if they had one) or until they no longer feel unwell.
- Individuals who have taken a Covid-19 test and received a positive result should try to stay at home and avoid contact with other people for 5 days after the day they took their test, even if they do not have any symptoms.
In both of the above scenarios, people are advised to work from home if they can, and to talk to their employer about options available to them if they cannot work from home. The guidance for employers on reducing the spread of respiratory infections, including Covid-19, in the workplace, recommends that employers consider how best they can support and enable their staff to follow the above guidance on staying at home.
(Note that, as free Covid-19 tests are no longer generally available and the number of people taking regular tests has decreased, the number of employees reporting to their employer that they have received a positive test result is likely to be fairly low.)
11. Are employees entitled to SSP if they have symptoms of a respiratory infection or have tested positive for Covid-19? (Last updated 19/07/2022)
As noted at question 10, above, individuals who:
- have symptoms of a respiratory infection and who have a high temperature or do not feel well enough to go to work; or
- have tested positive for Covid-19
are advised to stay at home and avoid contact with others if they can. The guidance
recommends that such individuals work from home if they can, and talk to their employer about options available to them if they cannot work from home.
The Covid-19 specific SSP regulations were removed on 24 March 2022. Accordingly, any entitlement to SSP is subject to the normal rules, i.e. SSP is only available from the fourth day of absence and generally only if the employee is actually unwell.
Employees who choose to follow the Government guidance and stay at home in the above circumstances would generally expect to be paid sick pay if they are unable to work from home even if, strictly speaking, they might not qualify for SSP (e.g. if they have tested positive but are not actually unwell). We recommend that employers pay employees in these circumstances SSP (and company sick pay, if applicable – see question 12, below) as this may help to encourage compliance with the guidance. Indeed, the guidance for employers on reducing the spread of respiratory infections, including Covid-19, in the workplace, recommends that employers consider how best they can support and enable their staff to follow the above guidance on staying at home.
12. Must employers pay company sick pay to employees who contract Covid-19? (Last updated 19/07/2022)
Many employers operate company sick pay schemes that provide full pay (or pay significantly higher than SSP) for a specified period of absence. There will be eligibility rules for such company sick pay schemes, usually referring to ‘sickness absence’, although in some cases a scheme may say that company sick pay is payable whenever SSP is payable.
Of course, where an employee is unwell with symptoms of a respiratory infection (whether or not this is confirmed as Covid-19), they would be entitled to company sick pay subject to any relevant eligibility criteria. But what about where an employee has tested positive for Covid-19, but is not actually unwell?
As noted at question 10, above, individuals who have tested positive for Covid-19 are advised to stay at home and avoid contact with others for 5 days, whether or not they have symptoms. If they cannot work from home, they are advised to talk to their employer about the options available to them. As discussed at question 11, above, individuals who have tested positive but are not unwell would not, strictly speaking, qualify for SSP. They are also unlikely to meet the eligibility criteria under a company sick pay scheme.
However, some employers are continuing to pay company sick pay in these circumstances even if the employee would not normally be entitled to it under their company policy, as a means of encouraging employees to follow the guidance to stay at home following a positive Covid-19 test. Other employers, for whom taking this approach on an ongoing basis would pose financial difficulties, and/or who are concerned about abuse by employees, may have changed their approach, e.g. by ceasing such payments, or deciding to limit them to the first one or two occasions on which an employee tests positive for Covid-19 in a given period. Of course, employers that do this should be aware that it may increase the chances of employees not telling their employer that they have tested positive so that they can continue to attend work rather than following the Government guidance to stay at home, in order to avoid losing out on pay. It is also worth noting that the guidance for employers on reducing the spread of respiratory infections, including Covid-19, in the workplace, recommends that employers consider how best they can support and enable their staff to follow the above guidance on staying at home. We recommend seeking advice before you change your approach to payments for Covid-19 related absences.
13. What if an employee who cannot work from home, and who has symptoms of a respiratory infection or has tested positive for Covid-19, says they are well enough to attend work? (Last updated 19/07/2022)
As noted at question 10, above, the Government guidance recommends that employees stay at home if they:
- have symptoms of a respiratory infection and have a high temperature or do not feel well enough to go to work; or
- have tested positive for Covid-19.
In view of employers’ general duty under health and safety law to take all reasonably practicable steps to ensure a safe working environment, we would generally recommend that they seek to encourage employees to comply with this guidance. Indeed, the guidance for employers on reducing the spread of respiratory infections, including Covid-19, in the workplace, recommends that employers consider how best they can support and enable their staff to follow the above guidance on staying at home.
Accordingly, if an employee who cannot work from home attends the workplace while displaying serious symptoms of a respiratory infection or having stated that they have tested positive for Covid-19, we think that the employer should remind the employee what the guidance says and suggest that they go home on sick leave. (See questions 11 and 12, above, for discussion of the applicability of SSP and company sick pay in these circumstances.) In this regard it is worth noting that, as free Covid-19 tests are no longer generally available and the number of people taking regular tests has decreased, the number of employees reporting to their employer that they have received a positive test result is likely to be fairly low. Going forwards, therefore, employers are more likely to find themselves dealing with employees who have symptoms of respiratory infections (for whom sick leave and sick pay may be more clearly appropriate), than employees who are asymptomatic but who have tested positive.