|Coronavirus (COVID-19) FAQS|
Issues for employers following the lifting of Covid-19 restrictions on 19 July 2021
Issues for employers following the lifting of Covid-19 restriction on 19 July 2021
Last updated: 27/07/2021
These FAQs cover issues that employers may need to consider in respect of each of the following broad topics:
- Rules in the workplace and employees who cannot/will not attend work
- Covid-19 testing
- Self-isolation requirements and pay during self-isolation
- Annual leave and international travel
The FAQs take into account the Government guidance relevant to the lifting of restrictions, i.e. the paper on the ‘Covid-19 Response: Summer 2021’ published on 12 July (the Summer 2021 Document) and the parts of the ‘Working safely during coronavirus (Covid-19): guidance from Step 4’, published on 14 July, that are relevant to ‘offices, factories and labs’ (the Working Safely Guidance).
Rules in the workplace and employees who cannot/will not attend work
1. What Covid-19 workplace safety requirements must employers now comply with? (Last updated 19/07/2021)
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, which would include the risks posed by Covid-19, and take appropriate actions to mitigate those risks. The Government’s Working Safely Guidance provides information on how employers should approach Covid-19 related risks and suggests ways to reduce the risk of the virus spreading in the workplace. These cover various topics, such as ensuring adequate ventilation, implementing thorough cleaning and hygiene measures and reducing contact between people. We recommend that employers read the Working Safely Guidance in full.
Some employers may choose to retain the same health and safety measures that they had in place prior to the lifting of restrictions. Others might decide to adjust their approach, for example, if particular measures have impacted negatively on productivity. However, employers considering reducing or removing any Covid-19 related safety measures going forwards should bear in mind that this may give rise to concern amongst employees.
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. How should employers go about bringing employees who have been working remotely, or off work on furlough, back into the workplace? (Last updated 19/07/2021)
Now that the general instruction to work from home where possible has been lifted, and that fewer people are on furlough under the Coronavirus Job Retention Scheme (‘Extended CJRS’) (available until 30 September 2021), many employers will be seeking to require employees who have been absent from the workplace to return. However, with regard to employees returning to the workplace from remote working, the Government states in the Working Safely Guidance that it ‘expects and recommends a gradual return over the summer’ and that employers should discuss their plans with employees/their representatives ‘to make working arrangements that meet both business and individual needs’. Employers will in any event want to provide information and training on any safety measures they have put in place (see above) and seek to reassure employees who may have concerns about returning.
3. What if an employee who has been working remotely during the pandemic wants to continue working from home? (Last updated 19/07/2021)
Having worked remotely for over a year, some employees may be 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 enjoy not having to commute, they find remote working makes it easier for them to accommodate caring responsibilities, or they are concerned about Covid-19 risks (on which see question 4, below). Accordingly, they might ask to continue working from home on a long-term basis, or 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.
For employees who have worked at home throughout the Covid-19 pandemic while the Government guidance to work from home if possible has been in place, there will have been no change to their contract. Their remote working was a temporary arrangement based on applicable health and safety guidance; legally, their place of work would still be the employer’s premises. Employees who continue to work from home following the end of that Government guidance may, if their employer does not communicate an intention to have them return to working at the employer’s premises (even if the return is gradual), develop 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 the length of time for which they continue to work remotely after the Government guidance has been removed. 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. However, where an employee has been working remotely for the past year without any such 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 choose 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. This could be done, for example, by way of a discussion between the employee and their line manager, with the agreed arrangement being 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 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 issues 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, for free.
4. Can an employer take any action against an employee who refuses to return to the workplace due to concerns about Covid-19? (Last updated 19/07/2021)
Now that Covid-19 restrictions have lifted, including the general Government instruction for employees to work from home if they can, an employer might be able to take the view that an instruction to return to the workplace is a reasonable management instruction and withhold the employee’s pay (on the basis that they are not ready and willing to work and therefore not entitled to be paid), take disciplinary action, or even dismiss, if an employee refuses. However, there is a risk that the employee could bring a claim for detriment or automatically unfair dismissal claim 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 return to the workplace because of a reasonable belief that they would be in serious and imminent danger. Whether this can be established will depend on the circumstances. Whilst Covid-19 restrictions have been lifted, it is clear that the threat of the virus is still present, and the Government has tempered its lifting of the instruction to work from home if possible with the recommendation that employees return to the workplace gradually over the summer. However, maintaining relevant Covid-19 safety measures in the workplace will clearly help to reduce the risk of such a 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.
There is an important note of caution, however, if the employee concerned is considered clinically extremely vulnerable. Such individuals are at greater risk of serious illness if they contract Covid-19 and may therefore be particularly concerned about returning to the workplace and in a stronger position to argue that their belief in serious and imminent danger is reasonable. 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.
Although there may be a risk that clinically extremely vulnerable or vulnerable employees might 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.
In relation to the clinically extremely vulnerable, it is worth noting that the Government guidance expressly provides that such employees remain eligible for furlough while the Extended CJRS is available (i.e. until 30 September 2021). A cautious approach would therefore be to keep such employees on furlough if possible for the time being if they do not yet feel able to return to the workplace.
Special considerations also apply in respect of pregnant employees – see question 5, below.
It is also worth noting that if an employee who has been working remotely during the pandemic does not feel comfortable about returning to the workplace due to concerns about Covid-19, they are likely to make a request to continue as/be a home or hybrid worker – see question 3, above.
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 return to the workplace due to concerns about Covid-19. (As noted at question 2, above, employers seeking to bring employees back to the workplace should communicate with them in advance, providing information and training on the safety measures that are in place. In many cases, such communications may be enough to reassure employees so that they feel comfortable to return to the workplace such that further action is unnecessary.)
5. Do any specific requirements apply in relation to pregnant employees? (Last updated 19/07/2021)
With regard to pregnant employees, employers are under a specific legal obligation to:
- assess workplace risks;
- 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.
With this in mind, as the Covid-19 situation continues to evolve, it would be advisable for employers to carry out a risk assessment for any pregnant employees to identify the risks and consider what measures can be put in place to protect them. (One obvious measure could be to allow a pregnant employee whose job can be done remotely to continue to work from home, even if other employees have returned to the workplace.)
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 she refuses to attend work because of concerns about Covid-19 in the workplace, there is a potential risk if the employer subjects the employee to a detriment or seeks to dismiss her as a result – see consideration of s44 and s100 of the Employment Rights Act at question 4, 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 and/or because some pregnant employees may currently remain unvaccinated as vaccination was initially not recommended during pregnancy (although the official advice on that has now changed). Dismissal in these circumstances also carries the risk of a pregnancy discrimination claim. The employer may decide to place such an employee on furlough if she is eligible under the Extended CJRS but may need to top up her furlough pay to full pay. (The available guidance on the Extended CJRS does not specifically address the eligibility of pregnant women for furlough in these circumstances, but in our view it should be possible for employers whose operations have been affected by Covid-19 to furlough pregnant employees in these circumstances – see questions 4 and 5 of our FAQs on the Extended CJRS for more information). We suggest that you seek advice if you encounter this situation.
6. What if an employee cannot work as usual due to childcare issues? (Last updated 19/07/2021)
Furlough under the Extended CJRS
Emergency leave for dependents
Parental leave, other unpaid leave and annual leave
Dealing with longer term childcare issues
Alternatively - if the employee is seeking flexibility by way of home or hybrid working - you may have, as a result of the pandemic, put in place a home or hybrid working policy under which employees can request this without following a formal flexible working process.
7. What if an employee ignores Covid-19-related workplace hygiene rules? (Last updated 19/07/2021)
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, notwithstanding the relaxation of legal restrictions and the Government’s shift towards an individual responsibility approach to safety.
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 common areas of the workplace. Such a rule is likely to remain reasonable in the workplace notwithstanding the removal of the legal requirement to wear a face covering in certain indoor settings. However, when the legal requirement was in place, 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 common areas of the workplace may therefore be risky and we suggest that you take advice on your particular circumstances.
8. Can employers keep a record of which of their employees have and have not been vaccinated? (Last updated 19/07/2021)
Employers can keep a record of which of their employees have and have not been vaccinated, provided they meet the requirements of the GDPR.
The ICO guidance for organisations who are considering collecting vaccination data about their employees confirms that such data collection is permitted where the data is necessary and relevant for a specific purpose. You should be clear about what you are trying to achieve and how recording employees’ vaccination status will help you to achieve this. Accordingly, if an employer wishes to collect this information on the basis that it has a role in keeping the workplace safe, the employer should consider what its risk assessment says about how vaccination contributes to a safe workplace. One possible example relates to the Government proposal that, from later in the summer, those who are fully vaccinated will not need to self-isolate if they are identified as a close contact of someone who has tested positive for Covid-19. An employer may therefore consider that it requires details of employees’ vaccination status to enable it to respond appropriately to an outbreak of Covid-19 in the workplace and check that employees are not attending work when they are required to self-isolate. (Although requesting vaccination status information from employees only in the event of an outbreak would be a less intrusive approach, employers may well be able to justify holding such data on file on the basis that it would enable them to respond more quickly to any outbreak, thereby reducing workplace risk.) Keeping vaccination status data simply for monitoring purposes would, by contrast, be difficult to justify.
If you do have a good reason for collecting data on your employees’ vaccination status, you will need to carry out a DPIA (a data protection impact assessment) before you begin to collect the data.
The ICO has also confirmed that, if you have good reason for collecting the data, there are potential lawful bases for doing so. The ordinary legal basis is most likely to be that it is necessary in your legitimate interests to know which staff are vaccinated so that you can ensure safety in the workplace. Collecting the data to enable you to respond appropriately to workplace Covid-19 outbreaks when the rules on self-isolation following close contact with a confirmed Covid-19 case alter for fully vaccinated individuals would also be in your legitimate interests and/or allow you to comply with your legal obligations. As an employee’s vaccination status is special category data, you also need an additional legal basis. Consent can’t be relied upon in the context of the employment relationship, so the additional legal basis you would be most likely to rely on would be that the processing is necessary to comply with a legal obligation in relation to employment – probably either the obligation under health and safety law to undertake a risk assessment and take all reasonably practicable steps to ensure a safe working environment and/or the obligation not to require employees to attend the workplace if they are legally required to self-isolate.
If you will require some kind of evidence of vaccination rather than taking on trust an employee’s statement that they have been vaccinated, from a data minimisation perspective, we would suggest that HR ask employees to present such evidence and make a note of having seen it, but not take a copy.
It is also important to comply with your other data protection obligations. For example, you should ensure that you tell employees why the information is needed, what it will be used for, how it will be stored, how long it will be retained and who will be able to access it. This could be done in a specific privacy notice that you provide to employees at the time you request the data from them.
Access to the data will need to be limited as tightly as possible to those who really need it. If an employer allows particular employees’ vaccination status to become widely known, this could give rise not just to a breach of data protection law, but also to a risk of tensions or disputes with colleagues who take a different view about vaccination.
With regard to retention periods and the requirement not to keep personal data for longer than necessary, once there is ‘herd immunity’, or if the rules on self-isolation are removed or cease to differentiate between those who are and are not fully vaccinated, the employer may no longer have a reason to retain the information.
The above assumes that the employer will record employees’ vaccination status if they volunteer that information, or that it will ask employees to disclose this information. If an employer were to require employees to disclose their vaccination status rather than simply asking them to, then the employer would need to consider as part of its DPIA whether there are less intrusive ways of meeting its purpose – so it would have to justify why a voluntary approach wouldn’t work just as well.
9. Are employees entitled to time off during working hours to attend vaccination appointments? Should such time off be paid? (Last updated 19/07/2021)
- Employers’ general obligation to take all reasonably practicable steps to minimise health and safety risks in the workplace could be interpreted to include a requirement to enable employees to be vaccinated.
- As noted at question 10, below, providing employees with paid time off to attend vaccination appointments may be a way of encouraging vaccination uptake amongst the workforce.
10. Can employers encourage their existing employees to be vaccinated? (Last updated 19/07/2021)
- allowing employees paid time off work to attend vaccination appointments;
- 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.
11. Can employers require their existing employees to be vaccinated? (Last updated 27/07/2021)
The Government has legislated to require people working in CQC-registered care homes to be fully vaccinated with both doses, with the regulations due to come into force from 11 November 2021. For workplaces where this legislation will not apply, imposing a blanket “no jab, no job” type policy (once both doses of the vaccine have been offered to all UK adults) for existing employees is problematic for the following reasons:
- 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.
- From a health and safety perspective, employers must take all reasonably practicable steps to reduce risk in the workplace to the lowest practicable level – as you will have been doing during the pandemic by, for example, enforcing social distancing, enhancing cleaning, etc. but, as things currently stand, this would not extend to requiring (or providing) vaccinations.
There are also employment law considerations. First, is it a reasonable management instruction to ask staff to take the vaccine when it is available and, if so, can you take action against them if they refuse? 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 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.
Second, any decision to move an employee to a different role, or discipline or dismiss them if they are not vaccinated, may give rise to indirect discrimination risks. For example:
- 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;
- religion/belief discrimination, if 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.); or
- age discrimination, in relation to younger employees who may not yet have had the opportunity to have both doses of a 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.
The third main employment law consideration relates to the law on unfair dismissal. It is possible that requiring vaccination could lead to a risk of claims for constructive dismissal. This could occur if employees feel strongly enough to resign in response to a vaccination requirement or object to being instructed to work from home or moved to an alternative role for which the employer doesn’t require vaccination. In addition, there is 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 both of those scenarios, the employee would usually need to have at least two years’ service in order to bring the claim.)
12. Can employers make vaccination a condition of employment for new joiners? (Last updated 27/07/2021)
Introducing a “no jab, no job” type policy for new hires (who do not work in the CQC-registered care homes where full vaccination will become a requirement from 11 November 2021) 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 be vaccinated for medical or reasons, or object to vaccination on the basis of religion/belief.
13. How should we handle tensions between employees about vaccination? (Last updated 19/07/2021)
There is potential for workplace tension about vaccination to arise in a variety of ways and the issues are likely to be particularly sensitive where different protected characteristics under the Equality Act are concerned.
For example, what if an employee whose partner or child is clinically extremely vulnerable gets into a dispute with a colleague who has decided not to be vaccinated for religious reasons, calling them irresponsible or aggressively questioning their decision and beliefs?
Employers will need to handle such situations with care and sensitivity and we recommend that they seek advice on their particular circumstances before taking action.
14. What Covid-19 tests are available for your employees? (Last updated 19/07/2021)
Anyone who has symptoms of Covid-19 can access a free PCR test on the NHS, while LFD tests are available for regular use by people who do not have symptoms. Further information is available on the NHS website.
The Government funded workplace testing programme which provided LFD tests to employers for use at the workplace or distribution to employees to use at home ended on 19 July 2021. Employers wishing to operate workplace testing would therefore need to fund the tests themselves going forwards. (A list of approved private providers of Covid-19 tests is available here.)
15. Can employers require employees to take regular Covid-19 tests? (Last updated 19/07/2021)
It is possible to make testing mandatory, but doing so carries a degree of risk, as explained below. Employers should consider these risks when deciding whether a voluntary route accompanied by good communication is preferable.
(Note that, from a practical perspective, it is likely to be easier to enforce a requirement to take Covid-19 tests if the employer operates testing at the workplace – as the employer may be able to refuse entry to site for employees who refuse to be tested. By contrast, where employees are instructed to take regular tests at home, the employer will not have visibility over whether the employees have actually taken a test.)
An LFD test is an invasive test. From an employment law perspective, an employer would usually only be able to require an employee to undergo any form of medical test if there is an express provision within the employee's contract (or a contractual sickness absence or other policy) providing for this.
However, in the unprecedented circumstances of the Covid-19 pandemic, requesting that all staff undergo testing on a periodic basis may potentially be deemed reasonable to help the employer to protect the health and safety of all employees, even if such testing is not provided for in contractual documentation. In practice, employees may be reassured that the employer is taking such steps to protect their health in the workplace and many are likely to accept that such testing may be a necessary precaution in current circumstances.
In the event that an employee refuses to be tested, we would recommend that the employer has a constructive discussion with the employee, explaining why testing is considered necessary and seeking to understand the employee’s reasons for refusal. If you have made testing mandatory, there may potentially be grounds for disciplinary action in such a case, but we would recommend that employers seek advice before acting. If an employee were to be dismissed for refusing to comply with an employer’s instruction to undergo mandatory testing, and claim unfair dismissal, the Employment Tribunal would need to assess the reasonableness of the employer’s decision to dismiss – taking into account both the importance of testing as a means of detecting and preventing the spread of Covid-19 but also the availability of other health and safety measures the employer could take to protect its staff.
It is also important to bear in mind the data protection issues associated with mandatory testing. For example, the employer would need to establish in their data protection impact assessment (DPIA) that they could not achieve their purpose with a less intrusive approach, such as voluntary testing. See question 16, below, for further information on data protection in relation to Covid-19 testing.
16. What data protection issues must employers be aware of in relation to Covid-19 testing? (Last updated 19/07/2021)
If an employer operates Covid-19 testing at its workplace, it may choose to keep a ‘register’ of who attended testing on which date. Equally, if the employer asks employees to carry out tests at home, it might also ask them to confirm when they have carried out a test.
In all cases, whether testing at the workplace, or asking employees to test at home, the employer will hold a record of any positive test results as employees are obliged to inform their employer if they test positive and they are due to attend the workplace during the period when they must self-isolate. This information will usually be kept on the employee’s sickness absence record, but employers may also keep aggregated information about the number of positive tests to track outbreaks and assess the effectiveness of their testing programme if they are running workplace testing. Some employers might also wish to keep a record of negative test results.
The ICO guidance on workplace testing confirms that employers can process Covid-19 testing information, provided that the necessary safeguards are in place.
The most relevant ordinary legal basis for processing will be that the processing is necessary in the employer’s legitimate interests (i.e. their interest in ensuring that employees who have Covid-19 self-isolate and do not attend the workplace, so that they can provide a safe working environment for all staff). Since test results are health data, and therefore special category data, employers also need an additional legal basis for processing. The most relevant additional legal basis will be the legal obligation in relation to employment, namely duties under health and safety law, or the public health condition. Consent is not an appropriate legal basis for processing, given the imbalance of power between employer and employee, even though consent in the ordinary sense of the word will be needed in order for an employee to undergo testing. (If a third party is administering tests at the workplace, they may ask the individual for their consent to testing.)
If the employer is collecting data other than positive test results, it will need to carry out a DPIA. The ICO’s guidance on workplace testing sets out some of the issues that employers should consider when carrying out a DPIA. If an employer is only collecting positive test results, then it could argue that a DPIA is not needed, as it this is arguably the same as collecting other health data about individuals who are off sick with other conditions or illnesses, which the employer does as part of its normal absence management practices. However, it may be beneficial to carry out a DPIA in any event, to help identify and mitigate any data protection risks. With regard to making testing mandatory, the ICO guidance cautions employers to consider whether their use of data is fair and proportionate, taking into account any potential negative consequences for the individual and considering whether a voluntary approach could achieve the same or similar results. This can be considered as part of the DPIA.
Before testing begins, the employer should provide privacy notice information to employees informing them what data it will collect, what that data will be used for (i.e. what decisions might be made with it), who it will be shared with and how long it will be kept for. Remember, test results must not be used for any purpose that employees were not told about in advance or would not reasonably expect.
Employers must also check that their ‘appropriate policy document’ (a safeguard for processing special category data in certain circumstances) is drafted broadly enough to encompass this type of processing.
If an employer is using a third party provider to conduct workplace testing, it should carry out due diligence on them and put in place appropriate agreements about how they will process the data.
Employers should also minimise the personal data they collect by only collecting data that they need for the stated purpose and not retaining it for longer than necessary. Employers should hold data securely and only share it with those who need to see it. Finally, don’t forget about the requirement for data to be accurate; since test results can only identify an employee’s Covid status at the time the test was taken, employers will need to record the date of the test alongside the result.
Self-isolation requirements and pay during self-isolation
17. In what circumstances must employees self-isolate? (Last updated 27/07/2021)
Self-isolation is an important means of preventing the spread of Covid-19. Below, we summarise the circumstances in which it is required/advised. As discussed under ‘Close contact’, below, the rules on self-isolation for close contacts who have been fully vaccinated are expected to change later in the summer, but it is important to note that this change has not yet taken effect.
(Note that where self-isolation is a legal requirement, it is an offence for an employer who is aware that an individual must self-isolate knowingly to allow the individual to attend any place other than the place where the individual is self-isolating for any purpose relating to their employment. Company directors can be personally liable if the offence is committed with their consent or connivance or is attributable to their negligence. Fines start at £1,000 but could increase up to £10,000 for repeat offences and for the most egregious breaches. Accordingly, an employer should not allow any employee whom it knows is required to self-isolate to attend the workplace for any reason during the self-isolation period.)
Managing employees’ covid-related absence may present various challenges for employers. See our HR Guide: Covid-19 and absence management procedures, which provides a framework to help you make decisions about changes to your current absence management procedures, in order to better manage increased Covid-19 related absences. (Make UK members can access the guide here.)
Individual develops symptoms of Covid-19
If an individual develops symptoms of Covid-19, they must self-isolate for 10 days, starting from the day after their symptoms began.
They are encouraged to take a PCR test as soon as possible and can end their self-isolation early if the result of that test is negative provided that: they are well; nobody else in their household has symptoms or has tested positive; they haven’t been instructed to self-isolate by NHS Test and Trace; they haven’t been notified to self-isolate via the NHS Covid-19 app; and they are not subject to a period of post-travel quarantine (see below for further details on each of these situations).
Individual receives positive Covid-19 test result
An individual who tests positive for Covid-19 must self-isolate for 10 full days starting from the day after their symptoms began or, if they do not have symptoms, the day they took their test. However, if the test was an LFD test, and the employee then takes a PCR test within 2 days and the result of that test is negative, the individual can end their self-isolation early. (Note that the Working Safely Guidance on how long to self-isolate states that if symptoms develop after the individual’s positive test, they must restart the 10-day isolation period from the day after they develop symptoms.)
(It’s important to be aware that self-isolation following a positive Covid-19 test result remains a legal requirement and the individual can be fined if they do not comply. In addition, there are potential penalties for employers that knowingly require or encourage individuals to attend the workplace during their self-isolation period.)
Someone in individual’s household has symptoms or positive Covid-19 test result
An individual who is in a household with someone who develops symptoms of, or tests positive for, Covid-19 must self-isolate for 10 full days following the day that person’s symptoms started (or, if they do not have symptoms, the day they took their test).
An individual who is self-isolating because someone in their household has tested positive for Covid-19 must complete their 10 day self-isolation period even if the individual has a negative test result during that period. However, an individual who is self-isolating because someone in their household developed symptoms of Covid-19 can end their self-isolation early if the person with symptoms receives a negative PCR test result.
If the individual develops symptoms while they are self-isolating, they are advised to get tested for Covid-19. If the test result is positive, they will have to start their 10 day self-isolation period afresh from the day following the date their symptoms started. This means their total self-isolation period will be longer than 10 days.
We assume that where a member of an individual’s household tests positive, that individual would be instructed to self-isolate by NHS Test and Trace, since they would certainly meet the definition of a ‘close contact’. Accordingly, we assume that the individual’s self-isolation would be a legal requirement and they could be fined for failure to comply. We also assume that the Government’s proposed removal of the requirement for fully vaccinated close contacts to self-isolate would apply to household members as well – see ‘Close contact’, below.
If an individual is identified as a close contact of someone who has tested positive for Covid-19, the current rules say that they must self-isolate for 10 days from the day after they last had contact with that person.
It is worth noting that the concept of close contact is quite broad and includes:
- having face-to-face contact with someone less than 1 metre away (whether or not wearing a face covering);
- having been within 2 metres of someone for more than 15 minutes (either as a one-off contact, or added up together over one day); and
- travelling in a car or other small vehicle with someone (even on a short journey) or close to them on a plane.
Self-isolation as a close contact is a legal requirement if the instruction to self-isolate comes from NHS Test and Trace and individuals can face fines if they do not comply. An individual who is self-isolating because they have been instructed to do so by NHS Test and Trace must complete their 10 day self-isolation period even if they have a negative test result during that period. However, Government guidance on confirmatory testing indicates that if the individual was instructed to self-isolate by NHS Test and Trace on the basis of their contact with someone who had tested positive using an LFD test, and that person subsequently receives a negative PCR test result (see above), NHS Test and Trace will contact the individual again and inform them that they can stop self-isolating.
If the notification to self-isolate comes via the NHS Covid-19 app, then it is advisory, rather than a legal requirement. This is because the Government recognises the limitations in the accuracy of the app’s contact tracing feature, which is based on Bluetooth technology and therefore can’t account for things like the use of protective screens, or phones being left in lockers. That said, in view of employers’ duties under health and safety law to take all reasonable steps to ensure a safe working environment, employers should nonetheless try to ensure that their employees comply with such notifications.
As Covid-19 rates rise, the number of people being notified to self-isolate via the NHS Covid-19 app has been increasing significantly. This has caused staff shortages in certain sectors as so many employees have been notified to self-isolate. The Government has therefore introduced specific, limited exemptions for named employees in certain critical sectors in order to ensure the continuity of essential services. Employers in these sectors who wish to apply for an exemption must contact their relevant Government department. Details of the exemptions available and how to apply are set out in Government guidance, under the heading ‘Critical services’. The Government has also announced that it intends to provide further limited exemptions specific to the food industry, although details of how these exemptions will operate are not yet available.
The above exemptions are very narrow and apply to limited sectors only. However, on a more general level, the Government has proposed that, from 16 August 2021, individuals who are identified as close contacts of someone who has tested positive will not need to self-isolate if they are fully vaccinated, or under 18. Instead, they will be advised to take PCR tests to check whether they have contracted Covid-19 and will have to self-isolate if the test result is positive. Further details are expected to be published in due course.
Individual is advised to self-isolate before an operation / medical procedure
Where an individual is due to go into hospital for an operation or medical procedure, they (and possibly also their household) may be advised by a doctor to self-isolate for a period before this. Whether self-isolation is necessary in such circumstances and, if so, the length of the self-isolation period, is decided on a case by case basis by the doctors involved in the individual’s care.
Individual enters the UK from abroad
Quarantine rules may require individuals arriving in the UK from overseas to self-isolate for 10 days on arrival. Quarantine self-isolation is a legal requirement and individuals can be fined if they fail to comply. In addition, there are potential penalties for employers that knowingly require or encourage individuals to attend the workplace during their quarantine self-isolation period. For further details of the quarantine rules, see question 21, below.
18. Are employees entitled to SSP when they are required to self-isolate? (Last updated 19/07/2021)
19. Must employers pay company sick pay to employees who have to self-isolate? (Last updated 19/07/2021)
Many employers operate company sick pay schemes that provide full pay (or pay significantly higher than SSP) for a specified period of sickness absence.
From a wellbeing and employee relations perspective, employers would generally have wanted to continue their company sick pay schemes throughout the Covid-19 pandemic. However, employers have understandably been concerned about the cost of maintaining their company sick pay schemes in view of the sheer number of employees having to take Covid-19-related sickness absence.
Some employers may therefore have sought to suspend the operation of company sick pay for the duration of the Covid-19 crisis in order to save costs. Others might have decided to take the view that company sick pay is not payable in cases of self-isolation where an employee is not actually ill (although obtaining appropriate evidence of illness may have been challenging). Such approaches could, however, have given rise to employee relations and legal risks.
If you have made any changes to company sick pay or are considering doing so going forwards, you may wish to seek legal advice on your specific circumstances to minimise risk and/or understand any potential legal exposure.
20. Are employees who have to self-isolate entitled to any other payments? (Last updated 19/07/2021)
Annual leave and international travel
21. What are the testing and quarantine requirements where an employee returns/travels to England from overseas? (Last updated 21/07/2021)
International travel is permitted from England, including for leisure purposes, although quarantine and other requirements may apply depending on the category of country visited (‘red’, ‘amber’, or ‘green’ – with the categorisation dependent on the Government’s view of the country’s Covid-19 risk level, based on case and vaccination rates) and the individual traveller’s vaccination status, as summarised below.
(Note that the devolved administrations have separate powers over the lockdown and travel quarantine measures in their respective countries, so the position in Scotland, Wales and Northern Ireland may differ. These FAQs therefore focus on the requirements in England only.)
Subject to limited exceptions (see below), everyone arriving in England, including British nationals and UK residents, must present evidence of a negative Covid-19 test result before they travel here, regardless of where they are travelling from (i.e. all green, amber, or red list countries are covered). The test must have been taken in the three days before they depart for England. A person arriving in England without proof of a negative test could face a £500 fine. A person who tests positive must not travel and must follow local rules and guidance for positive coronavirus cases. The Government guidance sets out further details, including information on the types of tests that are considered acceptable.
If an individual receives a positive test result, they will not be permitted to travel and will be required to follow local rules and guidance for positive coronavirus cases in the country they are in – see further question 23, below.
Passenger locator form
Subject to limited exceptions (see below), everyone arriving in England, including British nationals UK residents, must complete a ‘passenger locator’ form online before they travel to the UK, regardless of where they are travelling from (i.e. all green, amber and red list countries are covered).
The passenger locator form requires the individual to provide contact and travel information, including the address where they will be staying (if applicable), so that they can be contacted if they, or someone they have been in contact with, develop the virus, and to enable their compliance with the self-isolation requirement to be monitored if applicable. The individual will also need to provide details of countries or territories they have been in or through during the previous 10 days.
Providing false or deliberately misleading information when filling out a passenger locator form is an offence, punishable by a fine of up to £10,000, imprisonment for up to 10 years, or both.
Travel from a green list country – no general requirement to quarantine
People entering England from a country on the Government’s green list, who have not been in or through an amber or red list country (see below) in the previous 10 days, are not required to quarantine on arrival.
However, subject to limited exceptions (see below), before they travel to England they are required to take a pre-travel test and complete a passenger locator form (see above) and book and pay for a post-travel test.
The post-travel test must be taken on or before day 2 after the individual’s arrival in England. If the test result is positive, the individual will be required to self-isolate at home for 10 days.
Travel from an amber list country if not fully vaccinated – self-isolation at home
All adults who arrive in England from a country on the Government’s amber list, or who have been in or through a country on that list in the previous 10 days, including British nationals and UK residents, are required to self-isolate for 10 days on arrival – unless they are fully vaccinated or another exception applies (see below).
Individuals who have to self-isolate may do so at home, at someone else’s home, or in a hotel or other temporary accommodation, provided they have not been in or through a country that is on the Government’s red list (see below) during the 10 days before their travel to England.
Breach of the quarantine rules means that an individual can be liable for a fine of up to £10,000. Individuals must inform their employer if they are due to work during the period when they are subject to a quarantine requirement and it is an offence punishable by a fine of up to £10,000 for an employer who is aware of an individual’s requirement to self-isolate knowingly to allow the individual, for any purpose relating to their employment, to attend any place other than the place where they are self-isolating.
Before arrival in England, individuals must also book and pay for a ‘travel test package’, which includes a Covid-19 test to be taken on or before day 2 of their quarantine and a further Covid-19 test on or after day 8.
Individuals will not be able to leave quarantine until they have both received a negative result from their day 8 test and quarantined for 10 days. If an individual does not take the tests, they may face a penalty of up to £2,000.
If an individual tests positive on either test, they must quarantine for a further 10 days from the day they took the test. If the test result shows that the individual has a variant of coronavirus known as a ‘variant of concern’, the individual’s contacts will be asked to be tested.
Test to release for international travel
Under the ‘test to release for international travel’ scheme, anyone who is required to quarantine on entry to England from an amber list country and who has not been in or through a red list country (see below) during the 10 days before their travel to England can pay to take a Covid-19 test via a private test provider five full days after they arrive in the UK. If the result is negative, the individual can stop self-isolating. An individual cannot rely on a negative test result from a test taken via the NHS to end their travel quarantine self-isolation early.
Note that individuals who end their quarantine early following a negative test result under the test to release scheme must still complete the ‘day 8’ test booked as part of their ‘travel test package’ (see above).
Travel from an amber list country if fully vaccinated – no general requirement to quarantine
Individuals who are fully vaccinated do not need to quarantine on arrival from an amber list country, provided they have not been in or through a red list country during the 10 days before their arrival. Instead, they are effectively subject to the same pre and post travel testing requirements as individuals who have only been in or through green list countries during the 10 days before their travel (see above).
For these purposes, the Government considers an individual to be ‘fully vaccinated’ if they received their vaccination(s) in the UK under the NHS vaccine rollout and at least 14 days have passed following their final vaccination.
Note, however, that if it is considered necessary in respect of individual countries on the amber list to prevent the spread of particular variants of Covid-19, the Government may require the fully vaccinated to follow the rules that apply to those who are not fully vaccinated (i.e. home quarantine, plus a travel test package). If such special rules apply to any country, this will be identified in the Government guidance.
Travel from a red list (travel ban) country – restricted entry and managed hotel quarantine
Individuals who have been in or through a country that is on the Government’s red list during the 10 days before their travel to England will be refused entry, unless they are a British national, an Irish national, or a UK resident. The Government advises that people should not travel to red list countries for leisure purposes.
British and Irish nationals and UK residents who arrive in England having travelled in or through a country that is on the red list are required to provide evidence of a negative Covid-19 test before they travel, complete the passenger locator form and self-isolate for 10 days on arrival. However, they are not permitted to self-isolate at home; instead they must do so in a ‘managed quarantine hotel’.
Government guidance specifies that individuals must book and pay for a ‘quarantine package’ before they travel to England. This includes accommodation in a managed quarantine hotel, quarantine transport as well as a ‘travel test package’ for Covid-19 tests on or before day 2 and on or after day 8 of quarantine. The initial price of the quarantine package is £1,750 for one adult.
Individuals will not be able to leave quarantine until they have both received a negative result from their ‘day 8 test’ and also quarantined for 10 days. If an individual does not take the tests, they may face a penalty of up to £2,000.
If an individual tests positive on either test, they must quarantine for a further 10 days from the day they took the test. If the test result shows that the individual has a variant of coronavirus known as a ‘variant of concern’, the individual’s contacts will be asked to be tested.
Individual and employer penalties apply in the event of a breach of the quarantine rules (these are as described above in the section on travel from an amber list country for those who aren’t fully vaccinated).
Exemptions – Common Travel Area
Individuals travelling to England from Ireland, the Channel Islands and the Isle of Man (the Common Travel Area) and who have not been outside the Common Travel Area in the past 10 days do not need to complete a pre-travel test, fill in the passenger locator form, book a travel test package, or self-isolate on arrival in England. (If they have been outside the Common Travel Area in the past 10 days, they must comply with the testing and/or quarantine requirements applicable to the places they have been.)
Exemptions – job-related
The Government guidance provides a number of limited exceptions to the self-isolation requirements for people in particular occupations, such as hauliers, certain medical professionals and workers with specialist technical skills which are essential to ensure the continued production and supply of goods.
Individuals who fall within these exceptions may still have to comply with the requirement to provide their contact information, present evidence of a negative Covid-19 test before they travel and take Covid-19 tests on or before day 2 and on or after day 8 following their arrival. However, they may be permitted to leave the place where they are self-isolating for the purposes of conducting their essential work. They must provide evidence at the English border to show that they are covered by an exception. What evidence is required depends on the particular exception relied upon, but may be, for example, a letter from the individual’s employer which includes the employer’s contact details and confirmation that the individual’s travel to England is essential for their work here.
The guidance that sets out the exceptions provides only limited explanation as to how they are intended to apply, but the Government have indicated to us that there is no pre-approval process and they expect employers to interpret the exceptions for themselves to determine whether any of them apply to their workers.
The position is different for individuals who have been in or through a country that is on the red list during the 10 days before their travel to England. Not all of the exceptions are available, and those that are will apply only where the work is “necessary to facilitate essential government work or essential state business”. The employer must apply to the relevant Government department for pre-approval if they wish to rely on an exception in such cases.
It is also worth noting that, although it is not apparent from the guidance, the Government have indicated to us that while the exemptions are intended to cover workers whose travel into England is essential for the purposes of their work here, they are not designed to allow such workers to take holidays overseas without self-isolating in the ordinary way upon their return to England.
22. In view of the quarantine rules, how should employers manage annual leave requests where employees wish to travel overseas? (Last updated 21/07/2021)
23. What are the employment implications if an employee tests positive for Covid-19 in their pre-travel test? (Last updated 19/07/2021)
As noted at question 21 above, if an individual receives a positive result in their pre-travel test, they will not be permitted to travel and will be required to follow local rules and guidance for positive coronavirus cases in the country they are in – which are bound to require them to self-isolate for at least some time following the positive test result. This will necessarily delay their return to England and probably also their return to work.
If the employee is sufficiently unwell that they are not capable of work, they should of course be treated as on sick leave and would be entitled to SSP (and potentially company sick pay, if applicable). If the employee is well enough to work, but is unable to work due to the self-isolation requirement (i.e. if remote working from abroad is not possible, or is not permitted by the employer), they would be deemed to be incapable of work and therefore entitled to SSP for 11 days starting on the earlier of the date the employee started showing symptoms or the date the test was taken. If symptoms continue beyond those 11 days, SSP entitlement is extended accordingly. (The employee may potentially also be entitled to company sick pay, if applicable.)
Since a pre-travel test can be taken up to 72 hours before travel, it is worth noting that employees may receive a positive test result and have to begin self-isolating several days before they are actually due to return to work. In these circumstances, employees may seek to reclassify affected days of their annual leave as sickness absence - see question 26, below. We recommend that you take advice if you receive such a request.
24. Can employers prevent employees from taking holiday on particular dates, e.g. because they need all hands on deck during a business recovery period? (Last updated 19/07/2021)
An employer can prevent employees from taking holiday on particular dates, for example because it needs all employees at work during a business recovery period, by giving notice in accordance with the Working Time Regulations (WTR). The WTR require the employer to give as many days’ notice as the period of holiday to which the notice relates.
It is important to note, however, that the WTR mechanism that enables employers to give employees notice not to take annual leave on particular dates does not actually allow employers to cancel periods of annual leave that they have already authorised. An employer should exercise caution if it wishes to ask an employee to cancel a period of annual leave it had previously agreed they could take. Such requests will be unpopular and may damage employee relations. Even if they agree to cancel their plans, employees might seek compensation in respect of any travel costs that they cannot get refunded. There is also a risk that an unreasonable request of this kind from an employer could amount to a breach of the implied duty of mutual trust and confidence, entitling the employee to resign and claim constructive unfair dismissal.
Employers should also be aware of their obligation to enable all employees to take their annual leave. Usually, this must be during the relevant holiday year. However, on 27 March 2020, the Government introduced regulations allowing workers to carry forward up to four weeks’ annual leave into the next two leave years, if they have been unable to take it due to Covid-19 (four weeks being the minimum annual leave under the EU Working Time Directive). Employers that require employees not to take holiday at a particular time should therefore consider whether this will mean employees have holiday to carry forward under these regulations and how they will manage this. Where holiday is carried forward, the Government guidance emphasises that it is best practice to give employees the opportunity to take it at the earliest practicable opportunity. Members can access further guidance on how to handle holiday that has been carried forward in the HR & Legal Resources section of our website.