*IMPORTANT* UK Moving to "Living with Covid"
Posted on 2nd March 2022 at 11:59
Throughout the pandemic the Government introduced various rules and regulations for the public to follow to keep them as safe as possible from the impacts of Covid-19. Such measures included the requirement to self-isolate if displaying symptoms of Covid, returned a positive Covid test or identified as a close contact of a positive case, as well as the provision of free testing and vaccines, and support payments to individuals and businesses.
In February 2022, following a reduction in the numbers of Covid-related hospitalisations and deaths, the Prime Minister announced plans to end all Covid restrictions in England.
Initially, regulations were in place until 24 March 2022, but the Government decided to bring forward the expiry date by one month.
The changes announced by Boris Johnson as the new plan on “living with Covid” apply to England only; Scotland and Wales will set out their own position. The following guidance applies to England only.
The Welsh Government outlined that a similar ending to isolation requirements could be introduced at the end of March 2022. The Scottish Government are unlikely to follow a similar path at this time.
What is the Government’s “Living with Covid” strategy?
On 21 February 2022, Boris Johnson set out a four-step plan to revoke all remaining Covid regulations, known as the “Living with Covid” strategy. He outlined the plan to be as follows.
From 21 February 2022
Removal of guidance for staff and students in most education and childcare settings to undertake twice weekly asymptomatic (lateral flow) testing.
From 24 February 2022
Removal of the legal requirement to self-isolate following a positive Covid test.
Fully vaccinated people and under 18s who have close contact with a positive case do not need to undertake a lateral flow test every day for seven days.
Close contacts who are not fully vaccinated do not need to self-isolate.
End of self-isolation support payments (including the £500 payment for those on low incomes).
End of routine contact tracing.
End of the legal obligation for individuals to tell their employers when they are required to self-isolate.
Revoking of the Health Protection (Coronavirus, Restrictions) (England) (No. 3) Regulations — these gave powers to local authorities to give directions relating to premises, events and public outdoor places in its area.
From 24 March 2022
Removal of the entitlement to be paid SSP from day-one for Covid-related absences.
Removal of the entitlement to be paid SSP for periods of self-isolation where the employee has not tested positive (so is isolating as a close contact) or the employee is not unwell (ie they are medically fit and able to work despite a positive test result).
Removal of entitlements under the Employment and Support Allowance Regulations.
Claims under the Coronavirus SSP Rebate Scheme may not be made after the end of 24 March 2022 for Covid-related absences beginning on or after 21 December 2021 up to and including 17 March 2022.
From 1 April 2022
Removal of free universal symptomatic (PCR) and asymptomatic (lateral flow) testing for the general public.
Removal of guidance on voluntary Covid-status certification in domestic settings and removal of recommendations that certain venues should use the NHS Covid Pass.
Updated guidance on the ongoing steps people with Covid should take to minimise contact in line with changes to testing.
Consolidated guidance to the public and businesses, in line with public health advice.
Removal of the health and safety requirement for employers to explicitly consider Covid in their risk assessments.
Replacement of the “Working Safely” guidance with new public health guidance.
What does the Government guidance say?
The Government’s public health guidance says anyone who has the main symptoms of Covid (ie a new continuous cough, a high temperature or a loss of/change in normal sense of taste/smell), has tested positive for Covid or who lives in the same household/has had close contact with a Covid-positive person should stay at home and avoid contact with others.
Anyone who displays Covid symptoms should order a PCR test and stay at home and avoid contact whilst awaiting this result; this guidance will likely change in April 2022 following the removal of free PCR tests for the general public.
Covid-positive individuals should stay at home and avoid contact with other people for at least five full days. They are further advised to ensure lateral flow tests return a negative result on two consecutive days, with 24 hours between each test, with the first test being on day five. Positive cases should:
not attend work
not invite visitors into their home
ask family members or friends to get food and other essentials
postpone all non-essential services and repairs which require a home visit
cancel routine medical and dental appointments.
If Covid-positive cases need to leave their home, they should: wear a well-fitting face covering; avoid close contact with anyone who is at higher risk (especially those with a severely weakened immune system); avoid crowded places; avoid large social gatherings and events; exercise outdoors in places where there won’t be contact with others; and be especially careful with hand and respiratory hygiene.
People who live with or have stayed overnight in the household of someone who has Covid are, for 10 days, advised to:
minimise contact with the person who has Covid
work from home if able to do so
avoid contact with anyone who is at higher risk
wear a well-fitted face covering in crowded, enclosed or poorly ventilated spaces
pay close attention to the main Covid symptoms and book a PCR test if these develop.
What to do if my employee tests positive
There are different approaches employers can take; these may vary significantly depending on their workplace and workforce.
Scenario 1 — allow employees to continue working as usual
It may be in the interests of both parties to agree a temporary period of homeworking, so the employee can maintain their normal salary while minimising disruption to business operations. Alternatively, employers could allow a period of annual leave for the employee to use any accrued time off in lieu (TOIL).
Where an employee cannot work from home, an employer may want to ask them to come to work as usual.
The removal of the legal requirement to isolate means employees will not be breaking the law, and employers won’t face sanctions, if they come to work. However, employers should take into consideration that they may be in breach of government advice and their statutory duty to take reasonable steps to protect their employees if they require a Covid-positive employee to come to work.
Colleagues, especially those who are vulnerable or live with someone who is vulnerable, may raise concerns over working in close proximity to a Covid case. Whilst claims of this nature are yet to be tested in employment tribunals, there is the potential for employees to raise a claim for indirect discrimination, or indirect associative discrimination, if they feel they are disadvantaged by a company policy that Covid-positive individuals can continue to come into the workplace.
Government data on Covid-related deaths between December 2020 and June 2021 shows Covid mortality increased with age. The same analysis also showed the risk was higher for people with specific clinical conditions (eg Down’s syndrome, Parkinson’s disease, dementia and neurological conditions) as well as for those living in more deprived areas and from certain ethnic minority groups.
As such, employers should consider how they will continue to mitigate the risk of Covid transmission and illness in the workplace. They may also need to objectively justify introducing such a policy by demonstrating it is a proportionate means of achieving a legitimate aim; this is the test a tribunal would apply if an indirect discrimination claim was raised.
Scenario 2 — ask the employee to stay at home
Employers have obligations under health and safety legislation to provide a safe place of work; there remains an ongoing legal duty to take all measures, so far as reasonably practicable, to protect employees and others from harm.
A failure to implement measures to prevent Covid-positive employees coming into the workplace could lead to employers being in breach of such obligations under health and safety law, potentially leading to regulatory sanctions or claims from employees; although such claims currently remain untested.
This being said, “Working Safely” guidance will be updated in April 2022, so employers should remain informed with the ever-changing situation and be prepared to adapt their approach.
In practice, employers can implement a reasonable management instruction for employees to inform their manager if they test positive for Covid, develop symptoms or have close contact with a positive case. Employers can then instruct staff to follow government advice to stay at home and avoid physical contact with the workplace for five full days.
NHS England and Improvement has confirmed that staff who test positive should not attend work until they have had two negative lateral flow tests taken 24 hours apart and the first test shouldn’t be taken before day five.
Any member of staff who tests positive, including bank and sub-contractor staff, who have to be physically present at an NHS facility to carry out their duties, should receive full pay for any period in which they cannot attend work as a result of public health guidance.
General practices and agency workers should ensure staff are not required to attend work if they test positive for Covid.
What do employees get if they test positive?
An employee’s pay entitlement will depend on various situational factors.
Employee instructed to keep working
Employees who continue working as usual (including those who do so from home) will maintain their entitlement to full pay in accordance with their contract.
Employer instructs employee to stay at home and employee is unwell
An employee who is sick can follow the usual absence management policy to report their illness and receive normal sick pay entitlements. This may be statutory sick pay (SSP), subject to eligibility criteria, or contractual sick pay if the organisation provides enhanced terms.
Until 24 March 2022, employees are entitled to receive SSP from day one for Covid-related absences provided they are sick for at least four calendar days.
From 24 March 2022, an employee who tests positive and is too unwell to work will be entitled to SSP provided they are sick for at least four calendar days and have served three waiting days. Essentially, pre-pandemic SSP arrangements apply.
Employer instructs employee to stay at home but employee is well enough to work
Until 24 March 2022, employees (subject to eligibility criteria) are entitled to SSP from day one for Covid-related absences. This continues to include self-isolation.
However, from 24 March 2022 an employee who tests positive but is asymptomatic and not unwell, so remains fit and able to work, is not entitled to SSP.
Employers should assess whether the employee can work from home. If they cannot, they can rely on the reasonable management instruction to the employee that they stay at home and consider the employee to be on some type of leave, eg ‘special leave’ for the duration of the Government advised stay at home period. They must then determine the level of pay the employee will receive.
A requirement for an employee to stay at home in these circumstances, where there is no other contractual provision to the contrary, should be accompanied by full pay. This is the correct approach.
Employers who decide to pay less than full pay in these circumstances do so on the understanding that this may well be challenged by the employee. For example, an employer who pays nothing, or the equivalent of SSP, may face a successful claim of unlawful deduction from wages. It is also possible that an employee may successfully be able to argue that this is a breach of their implied term to be paid, or the term of mutual trust and confidence. Employees who resign in response to this breach may claim constructive dismissal. As such employers who take this route will compromise their insurance position.
The determination of the pay arrangements will need to be made when the employee notifies of their situation.
Can employers claim back SSP (Statutory Sick Pay) for Covid absences?
Employers with fewer than 250 employees as at 30 November 2021 are able to claim back the cost of up to two weeks’ SSP per employee who is off due to Covid-related absence. The Scheme covers any absences beginning on or after 21 December 2021 up to and including 17 March 2022. Employers must submit all claims for SSP through the Government’s online portal before the end of 24 March 2022.
How long should employees be at home for?
Employers can choose to set out their own terms in a contractual stay at home policy — this includes the length of the period.
It seems sensible to follow the Government’s advice on the length of the stay at home period which is five full days. However, employers have scope to make it less than this if they want to.
Equally, employers may wish to extend the recommended period. If they do, they should keep in mind that the longer employees are away from the workplace, the greater the impact on both them and the business.
What happens if employees refuse to stay at home?
Where there is a contractual requirement in place for Covid-positive employees to stay away from the workplace, a breach of this may lead to disciplinary action. However, it is important to first consider why the employee is refusing to stay at home before taking any action against them.
If the employee has reasonable grounds for refusal, accommodations may need to be made. But, if the employee unreasonably refuses, and the contractual requirement is fair and justifiable, it may be possible to start a disciplinary process.
Can employees be required to do a Covid test?
Many organisations already ask staff to complete regular Covid tests. However, following the introduction of charges to both lateral flow and PCR testing in April 2022, businesses should assess how they can continue to require this.
As long as there is sound reasoning for doing so, employers may be able to introduce a policy requiring employees to continue to complete regular testing. In this, they should set out how often an employee should test and the process for providing their results.
Testing may not be necessary for all settings but could be particularly relevant for roles which involve close contact with others. For example, those within the health and social care sector.
Any records relating to Covid tests fall under special category data so must be processed in line with data protection rules.
Do employees have to tell employers the result of their test?
From 24 February 2022, there is no legal requirement for employees to tell their employer when they have Covid. However, employers can consider introducing a contractual requirement that employees must do so.
An employer’s stance on pay during the stay at home period will likely impact an employee’s willingness to inform of their Covid test results.
Where there is reasonable justification, and subject to normal investigation processes, employers may be able to treat instances whereby an employee fails to inform their employer of a positive result, or comes to the workplace whilst Covid-positive, as a disciplinary matter.
The employer should make their position on this clear to employees.
Do employers have to pay for Covid tests?
It will likely be deemed unreasonable to force an employee to pay for a Covid test if the requirement to test is a contractual requirement from the business.
Recent case law (Augustine v Data Cars) confirmed that any expenses which are incurred in connection with employment should not cause the employee’s salary to fall below the national minimum wage (NMW) rate.
Therefore, if the cost of the Covid test means the employee receives less than the NMW rate for their age, they may be able to claim underpayment.
It remains to be seen whether wider claims for unlawful deduction from wages could be made in this situation.
What about employees who are clinically vulnerable?
Those who were previously considered as clinically extremely vulnerable are advised to follow the same general guidance as everyone else as a result of the protection they have from being vaccinated.
Vaccines are considered to be the best line of defence against Covid. As such, the Government confirmed an extra “spring” booster would be given to those aged over 75 and most vulnerable. A similar booster may be rolled out again in the autumn, to continue to provide ongoing protection.
Individuals are encouraged to adopt safe behaviours, such as wearing a mask, using hand sanitiser, social distancing and opening windows. People are advised to avoid contact with anyone in an at-risk group if they test positive for Covid. As such, arrangements may need to be made in the workplace to minimise such contact occurring.
How can employers continue to keep the workplace safe?
Employees may be concerned about an increased spread in Covid due to the removal of the legal requirement to isolate when positive.
Employers should remember they have a duty of care towards all staff, including for their physical and mental health, so put measures in place to protect them. It may be beneficial to undertake and update risk assessments, to ensure the workplace remains as safe as possible, to protect against Covid. As a result, it may be necessary to introduce new measures or re-introduce previous measures, such as mask-wearing, one-way systems and sanitising stations.
Adjustments may need to be made for employees who have genuine concerns about the workplace; this may include those who live with a vulnerable person or are worried about their commute to/from work. Employers also have a legal duty to consider reasonable adjustments for those with a disability; this may include employees who were previously deemed to be clinically extremely vulnerable.
Individual conversations should be had with employees who fall into these categories; holding a welfare meeting is typically the best way to understand an employee’s condition and the impact this has on the workplace and assess the best way they can be supported.
What about employees who refuse to work with a Covid positive person?
If the workplace poses a serious and imminent threat to an employee’s health, under s.44 and s.100 of the Employment Rights Act (1996), employees and workers are protected from being subjected to a detriment or dismissed for exercising their right to leave or stay away from their workplace. Detriment would include them having their pay deducted or given a warning for example.
To be protected, the employee must have a “reasonable belief” that their workplace poses a serious and imminent threat to them, or to others, including members of the public and their families. The threat must also be one which the employee couldn’t reasonably have taken steps to avert.
Coronavirus is a potentially deadly disease and it's possible that some employees will argue that the risk of coronavirus will always be “imminent” whilst the pandemic persists whenever they leave their homes.
Anyone who is living with someone who is vulnerable or extremely vulnerable may be genuinely concerned that returning to work may put members of their household at serious risk of danger.
Employers may disagree with their employee’s assessment of the situation. However, if the employee has a reasonable belief, they will still qualify for protection. Therefore, the more an employer can do to communicate with staff the protection measures in place and reassure them, the better.
Employers should talk to anyone who has concerns about coming into the workplace and make adjustments where possible.
Published by Callum Williams - Business Administrator and Marketer - Blog Content resources are from Croner-I
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