On February 24th 2022, the government announced a change in legislation surrounding COVID-19.
Before this change, legislation required individuals who tested positive for COVID-19 to self-isolate for a minimum of 10 days, with the option to reduce this to five days providing negative tests are produced on day five and six of isolation.
What's new?
The change in legislation includes:
- an individual is no longer required to self-isolate if they test positive for COVID-19;
- there is no longer a requirement for an individual to take daily tests when testing positive for COVID-19; and
- an individual is no longer required to self-isolate following contact with someone who has tested positive for COVID-19
What does this mean for employers?
Notwithstanding the change in legislation, there are still pre-existing laws that employers must adhere to. The Health and Safety at Work Act 1974 requires employers to protect their employees' health, safety, and welfare whilst at work. In theory, employers may fall foul of this legislation if they knowingly allow an employee, who has been diagnosed with COVID-19, to return to the office. This will likely jeopardise the safety of other employees, which could see the employer fall foul of the same.
Furthermore, the Management of Health and Safety at Work Regulations 1999 (MHSWR) states that employers must make a "suitable and sufficient" assessment of risks to the health and safety of their employees. Employers will therefore have to consider the employee's individual circumstances, including but not limited to the proximity of how close employees work with each other if employees are "high risk" or which employees are unvaccinated.
Where do employees stand?
Section 44 of the Employment Rights Act 1996 (ERA) states that an employee has the right not to be subjected to any detrimental act, or failure to act, by the employer on the ground that the employee left or refused to return to work, or took appropriate steps to protect themselves because the employee reasonably believed they were in serious and imminent danger. Section 100 ERA provides further protection for employees and the right not to be dismissed for the reasons listed in Section 44 ERA.
Employers must be cautious when an employee refuses to attend the workplace due to a colleague being diagnosed with COVID-19. If the employee's reasons for refusing to attend the workplace is an appropriate step to protect themselves because they firmly believe they are in serious or imminent danger. In that case, it is likely the employee is protected under Section 44 and 100 ERA.
Working from home
It is not all doom and gloom for employers. One way in which they can balance the changes in legislation and protect staff is to consider the possibility of working from home.
Where possible, employers should ask employees to work from home if they test positive for COVID-19. This measure is likely to apply to employees who have been diagnosed with COVID-19 but show minor symptoms/are asymptomatic.
In this case, if employees can work from home, it should be encouraged, and provisions should be made to accommodate home working, such as a home working policy.
Employers should request medical evidence to avoid any abuse of this policy.
If an employee is diagnosed with COVID-19 and is showing symptoms/severe symptoms, the employer should treat this as a normal absence and request a fit note if the absence persists for seven days or more.
If an employee cannot work from home?
The starting point for an employer to consider is, does the employee have a disability within the meaning of the Equality Act 2010 (EQA)?
If an employee is covered under the EQA, and the employer requests their attendance at work without considering any disadvantage, the employer may be in breach of the EQA and as such, a disability discrimination claim may arise. For example, an employee suffering from long-term anxiety (over 12 months), which has an adverse effect on their day-to-day life, is likely to be covered under the EQA as a disability. This employee could be diagnosed with COVID-19, which may trigger the employee's anxiety and worsen their condition. If this occurs and the employee is asked to continue working without any reasonable adjustments, this may result in a disability discrimination claim against the employer.
We must emphasise that this is a grey area. In these circumstances, an employer may argue that the downgrading of COVID-19 guidance may imply that COVID-19 is no longer as dangerous as it once was and that it is safe (under the Health and Safety at Work Act 1974) for employees to work alongside asymptomatic colleagues. Employers may then have reasonable grounds to require employees to attend the office. However, as stated above, this is a grey area and likely to be judged on a case by case basis.
The reduced supply of Covid testing
It has been stated that the number of testing kits available will be reduced significantly and that they will no longer be free of charge. Therefore, it may be unreasonable for employers to ask their employees to perform a COVID-19 test before attending the office.
There are multiple options available to employers in this regard, which include:
- Amend the policy to request testing once or twice a week, rather than daily. This will reduce the financial burden on employees and ensure a reasonable request;
- Remove the policy entirely as it is no longer a legal requirement. In this situation, employers must again refer to the Health and Safety at Work Act 1974, which requires employers to ensure that, as far as is reasonably practicable, employees' health, safety, and welfare are protected.
- Reimburse the cost or supply employees with free tests. This may be the safest option but could result in significant financial cost to the organisation depending on the price of the tests. The tests may also become difficult to acquire.
Employers should also recognise that this reduction in legislation will make policies harder to enforce and will likely increase the number of employees rebelling against such policies. There are grounds to discipline employees in such cases; however, with the lack of precedent, it's uncertain if such disciplinary will result in constructive or unfair dismissal claims succeeding at a tribunal.
Sick pay
As a result of the change in legislation, employees are no longer legally required to self-isolate. If an employee shows symptoms and is not well enough to attend work, this should be treated as a normal absence, and as such, they may be eligible for statutory sick pay/employer sick pay provided they have satisfied the requirements. An issue arises when an employee has COVID-19 and is fit to work but insists on self-isolating.
The solution to this lies with the contractual position, including express and implied terms. It also depends on the employer's policies and any potential precedent they have set. As a consequence of these factors, the position varies significantly from employer to employer. However, the contractual position would not favour asymptomatic employees looking to self-isolate, and as such, they may not be eligible for sick pay.
Self-isolation without COVID-19
If the employer insists on its employees attending the workplace in person and the employee refuses, any disciplinary action could result in an employee asserting the employer has breached Section 44 and 100 ERA.
Similar claims have already been made. For example, Mr D Rogers v Leeds Laser Cutting Ltd. In this case, it was concluded that Mr Rogers' concerns over COVID-19 were not enough to bring him within the scope of the statutory protection. Mr Rogers told his manager that he would not attend work until lockdown had eased because of his concerns about infecting his vulnerable children. Mr Rogers was dismissed a month later.
The employment tribunal held that although he had significant concerns about COVID-19, he did not communicate with his manager any workplace dangers or evidence that there was, in fact, any such danger. Before leaving work, he had also not taken steps to avert the alleged danger with his manager. As a result, Mr Rogers claim of automatic unfair dismissal was dismissed. Given that this occurred before the downgrading of regulation, one could assume that similar claims of unfair dismissal will have an even lower chance of succeeding at a tribunal.
