Due to rising cases of Omicron over the winter, the Government once again advised working from home where possible. We don’t know yet when this advice will change but, as an employer, it is wise to use the time to plan a safe, structured return. 
When lockdown was lifted over the summer, we published our guidance about your obligations for a safe return to the workplace. Many things have changed this time round, including the lack of a furlough scheme. Employees and clients may have higher expectations, given that this is the second time around. 
 
Here is our updated guidance about your obligations and how to meet them: 
 
 
Your obligations as an employer 
Under the Health and Safety at Work Act 1974 you have a legal duty ensure the health, safety and welfare of all employees at work so far as reasonably practicable, and to provide a safe work environment with adequate facilities and without risks to health. 
 
Whether or not the government requires a COVID19 specific risk assessment again, it is a sensible first step. You should identify risks of COVID19 infection, but also where changes pose a risk to your other obligations as an employer. For example, if a member of staff is diagnosed with Coronavirus after returning to work how will you balance confidentiality with the need to keep staff informed? 
 
Social distancing measures are no longer legally required, but you should consider ways to reduce the risks of infection and to reassure employees and clients. This could include rearranging seating, avoiding hot-desking, installing barriers, increasing hygiene measures, or staggering break times. You could help reduce the risks involved in commuting by changing working hours so staff to travel at quieter times or providing additional parking so that staff can drive to work. Any changes to working times and shift patterns must be made in line with the employment contract, or with the consent of staff, to avoid the risk of legal claims for breach of contract. 
 
You are also required under the Employers Liability (Compulsory) Insurance Act 1969 to insure against liability for injury and disease. You may wish to discuss re-opening with your insurer. 
 
 
Sick pay 
One of the big differences with reopening in 2022 will be self-isolation requirements. Fully vaccinated people are no longer required to isolate after contact with COVID19 if they are not positive themselves, but unvaccinated people must. In response, some employers are now cutting contractual sick pay for employees required to isolate because they have chosen to refuse the vaccine. 
 
If you are considering a similar approach, you should assess the pros and cons of each approach. Whichever policy you take must be in line with your employment contracts. You must also be careful that your policy does not discriminate indirectly against those who are unvaccinated due to a disability or religious belief. 
 
 
What if my employees have concerns? 
You should encourage employees to raise concerns with you in the first instance. This is important in helping you to identify and resolve problems before they escalate. 
 
A disclosure that is in the public interest and concerns health and safety risks or a breach of your legal obligations will fall under the Public Interest Disclosure Act 1998. The employee will be a whistleblower, and you must be careful that your response does not breach whistleblowing protections. If you don’t already have one, a clear whistleblowing policy will help staff to understand how they raise concerns and feel confident in how their reports will be handled.  
 
 
Even if you have a whistleblowing policy, your employees have the right to report their concerns to the Health and Safety Executive. Again, you must be careful not to breach whistleblowing protections when handling the report. 
 
 
What if employees refuse to return? 
The Employment Rights Act 1996, in s44 and s100, provides that employees who reasonably believe they are at risk of serious or imminent danger at work can leave work and refuse to return while the danger persists. You should work with employees to address risks in the workplace. 
 
If you have taken reasonable measures but the employee is still not reassured, you could ask them to use holiday leave or unpaid leave while you try to deal with their concerns. As COVID is a long-term consideration this will delay the issue rather than solve the problem, but it may give you both some breathing space for discussion. 
 
If the employee still refuses to work without a good reason this is generally a disciplinary matter, but you should be cautious. Only consider disciplinary action if you are entirely satisfied you have taken every measure to reduce the risk to staff, otherwise any dismissal is likely to be unfair and you could face legal claims. A formal or heavy-handed approach could also impact on working relationships and morale. We suggest seeking legal advice based on your specific circumstances before taking any such action. 
 
 
Vulnerable employees 
Some groups, including older people and those with existing conditions, are at a higher risk from the virus. You may be failing in your health and safety obligations if you fail to mitigate these extra risks and, in the case of disabled employees, could face discrimination claims for failing to make ‘reasonable adjustments’. You should consider all options, including whether vulnerable employees could take an alternative role that allows working from home, or at least has less risk. 
 
You will need to be careful of the risk of discrimination in separating out certain groups by protected characteristics. Proportionate measures to protect vulnerable groups are likely to be justified as there is a reasonable purpose in protecting the health of employees, but it is wise to seek legal advice. 
 
Businesses should also consider how to support employees who live with a vulnerable person, even if they are not vulnerable themselves. As well as maintaining a positive working relationship, this will avoid any claims for discrimination by association. 
 
 
Continuing to work remotely 
You may have found that working remotely or flexibly has suited your business and intend to continue in some way. If so, you should update your policies to reflect your new working arrangements. 
 
You will need to consider whether remote and flexible options are open to every role, or by request. If by request, how will you decide which grants to request – be careful to avoid discrimination, especially where the request is for a reasonable adjustment. You will also need to consider how you protect your employee’s health and safety and manage data protection off-site. 
 
 
 
 
As we return to work, it’s important to remember that this is a difficult time for everybody. The best solution all round is for employers and employees to work together to achieve a safe outcome all round, for the good of both the business and individuals’ health. 
 
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