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Employment Newsletter - Issue 13

29th July 2021

Employment Newsletter - Issue 13

In this issue we will be focusing on:

  • Self Isolation
  • Pregnancy and Covid-19 Risk Assessments
  • Managing the Consequences of Long Covid
  • Government intends to introduce a proactive duty on employers to prevent sexual harassment

Legal Update #1 - Self-Isolation

The Current Rules

As things stand, all close contacts of those who have tested positive for coronavirus are required to self-isolate for ten days to minimise the risks of them passing the virus onto others.  Close contacts are informed of the need to isolate either via the NHS app, receiving a ‘ping’ or notification from the app, or via direct contact from NHS Test and Trace team by email, phone or text message. 

Although the legal obligation to isolate and associated fines (of up to £1,000 for an individual and £10,000 for an employer who lets an employee attend work when they know they should be isolating) are only triggered by contact from the NHS Test and Trace team. Government guidance makes clear that employers who allow individuals notified by the app to continue to attend work are almost certainly going to be in breach of their health and safety obligations as they will be putting that employee’s colleagues at risk.  However, where an employee can work from home without coming into contact with others then they may continue to do so whilst self-isolating provided (of course) that they are not themselves unwell.

As cases have risen sharply this summer, so have the number of people who are required to isolate and there has been considerable press coverage of the difficulties this is causing employers especially in industries with large number of individuals in customer facing positions or other roles where it is difficult to work from home.

The New Exceptions

In response to some of the difficulties faced by businesses and public bodies trying to run essential services, the government have now introduced a scheme that allows employers to apply for an exemption that will allow named individuals to continue to attend work despite a requirement for them to self-isolate.

The exception will only be granted where the individual is fully vaccinated (they have received both doses of the vaccine with the second dose being at least 14 days ago) and only where their absence would be likely to lead to either “a major detrimental impact on the availability, integrity or delivery of essential services” or “a significant impact on national security, national defence, or the functioning of the state”.  The exemption will only allow such individuals to attend work. They will otherwise still be required to self-isolate.  The exemption, which will be provided in a letter from the relevant government department for the critical service, is also likely to be conditional on certain safety measures being followed, such as daily testing. 

This scheme is not intended to remove all disruption caused by requirements to isolate and employers should be wary of the health and safety implications of allowing those who should be self-isolating into the workplace, there may be circumstances in which employers might want to consider using the scheme. The Employment Team at Higgs will be happy to help you consider the implications before you make an application.

Please note this is separate to the daily testing scheme for supermarket depot workers; food manufacturers; prisons; waste management; police and other critical services.

Support for Employees and Employers

Last year the government amended the regulations governing statutory sick pay, to make it clear that where individuals are unable to work because they need to self-isolate then any such days will be ‘deemed days of incapacity’ for the purposes of SSP meaning that such individuals will qualify for SSP provided they need to isolate for at least four days.  However, this does not apply in the case of employees who need to quarantine on the return to the UK.  The government also launched an online “isolation note” service which employees can use to provide evidence to their employer of the need to self-isolate.  This service also allows employers to check notes provided to them are valid, this checking service can be found here: https://111.nhs.uk/isolation-note/check.   

Where employers typically pay contractual sick pay in addition to SSP, this contractual right is usually only triggered by sickness and employers will have a discretion as to whether to pay this to those required to self-isolate.  Employers might consider making such payments as a way of encouraging their employees to be honest with them about any notifications to self-isolate and thereby minimising the risks of allowing such an individual to attend work.

Case law suggests that where an employee is unwell during a period of annual leave then they should be able to re-arrange that leave for another time when they are not unwell.  It is not clear how this applies to a situation in which an employee is well but required to self-isolate and therefore may be ‘deemed incapable’ for SSP purposes if they are unable to work as a result.  However, a sensible approach would probably be to allow employees to re-arrange leave in these circumstances.  

Employers with fewer than 250 employees may apply to HMRC via online PAYE for reimbursement of SSP paid for sickness absence due to Covid-19, including where they have been required to self-isolate.  The amount that can be reclaimed is limited to the equivalent of two weeks’ SSP per eligible employee.  However, guidance on the scheme makes clear that multiple applications may be made in respect of the same employee provided that these do not exceed a total of more than two weeks.

In addition to SSP, the government introduced a one off support payment of £500 which is available for those on low incomes who are required to self-isolate or whose children are required to self-isolate and this means that they will lose income as they are unable to work.  Applications should be made to the employee’s local council and will require an NHS Test and Trace ID number, a bank statement, and proof of employment.  For more about the scheme see here: https://www.gov.uk/government/publications/test-and-trace-support-payment-scheme-claiming-financial-support/claiming-financial-support-under-the-test-and-trace-support-payment-scheme

Proposed Changes in August

It is proposed that from the 16 August, individuals who are fully vaccinated will not be required to self-isolate.  In this context ‘fully vaccinated’ means that they have received both doses of an approved vaccine within the UK at least 14 days before the day where they were in close contact with someone who has since tested positive for the virus.  The exemption will also apply to those who received the vaccine as part of a clinical trial, those who can provide evidence that they cannot receive the vaccine for clinical reasons, and those under 18.  Transitional provisions also allow those who are already self-isolating on 16 August who meet the conditions to stop isolating on that date.  Those who test positive for the virus will not be exempt and employers would be wise to insist anyone with symptoms is tested before they return to the workplace.

Once these changes come into force, this should reduce the number of individuals being required to self-isolate.  However, employers should be aware that younger members of staff, especially those in their 20s, will not have had an opportunity to receive both doses of the vaccine by 16 August and will, therefore, still be required to isolate.  Employers should also consider and take appropriate steps to minimise the additional risks involved in letting those who have come into close contact with someone who has tested positive return to the office as part of their covid-19 risk assessments.

Finally, we recognise that these new rules may mean that employers find themselves needing to collect information about who is and is not fully vaccinated.  This information is ‘special category’ data for GDPR purposes and employers should be aware that it’s collection, storage, and use are all highly regulated.  Please ask us for additional guidance if you think this may be relevant to your organisation.

Legal Update #2 - Pregnancy and Covid-19 Risk Assessments

Earlier this month we reported on the changes to the government guidance to reflect the removal of legal requirements to work from home where possible and socially distance and wear masks in the workplace.  This guidance stresses the importance of employers undertaking risk assessments to identify and implement key measures to prevent the spread of the virus within their workplace with a particular focus on the importance of ventilation, hygiene, and minimising the numbers of close contacts of individuals.  Since we prepared that report, the government have issued specific guidance for pregnant employees which may help employers navigate this tricky area.

This new guidance makes clear that although pregnant women do not face an increased risk of contracting the virus, the virus will pose an increased risk to women in the later stages of pregnancy (28 weeks or more) and those with underlying conditions.  These increased risks include both an increased risk of a severe illness from Covid-19 and risks to their unborn child from an increased likelihood of premature labour should she become unwell with covid-19.

Employers should be considering the risks posed to pregnant women, when preparing their general risk assessments and no pregnant woman should be required to work without support from such a risk assessment. When preparing risk assessments employers should consider steps to protect pregnant employees such as adjustments to working conditions; the provision of alternative work; or even suspension on paid leave if required to protect the health and safety of her and her child.  The new guidance makes clear that opportunities for homeworking should be made available to women from their 28th week of pregnancy and for those with underlying conditions and that where such options are not available employers should be considering suspending those employees on full pay.

Whilst it was not initially recommended that pregnant women receive the vaccine, this guidance was changed on the 23 April 2021 and now pregnant women should now be offered vaccines at the same time as people of the same age or risk group.  However, the early guidance against vaccination and the requirement that pregnant women receive only one of the types of available vaccine does mean that some women have had to wait slightly longer to receive their vaccine.

For those wanting to read our full report on Step Four of the Roadmap out of Lockdown, it is available here: https://www.higgsllp.co.uk/latest/2021/07/14/government-announces-step-four-of-the-roadmap-out-of-lockdown/

Legal Update #3 - Managing the Consequences of Long Covid

With experts suggesting that as many as 10-20% of all covid-19 infections result in long term symptoms and reports that more than two million people in England may have experienced long covid in the first year of the pandemic it seems likely that many employers will have to deal with some of the challenges posed by the condition in the coming months.  

From a legal perspective, absence or performance issues caused by long covid can be treated in the same way as they would be if caused by any other illness or condition.  However, the fact that long covid is a new condition may make it difficult for medical professionals and occupational health specialists to provide clear guidance to employers.  In particular it may be very difficult to determine if the condition meets the definition of disability (it being uncertain how long symptoms are likely to last) and employers should be cautious of ruling this out as a possibility at this stage.

In what follows we have discussed the basic approach employers might take to some of the key potential problems.  However, as always employers will need to adapt their approach to the specific circumstances and the Employment Team at Higgs will be happy to provide more bespoke guidance as it is needed.

Long Term Absences

The first step when dealing with long term absences is always to try and get a better understanding of the medical position.  This should be done in consultation with the employee and is likely to involve discussions with their GP and potentially an occupational health specialist.  For employees with long covid this may be made more complicated by the fact this is a relatively new condition.  An important aim of these discussions should be to consider what might be done to facilitate a return to work including changes to the nature of the work; to the working environment including home working; and considering a phased return.  Whilst the aim should always be to enable the employee to return to work, there will be situations where this is not possible.  However, employers should be wary of moving towards dismissal until all avenues to facilitate a return have been considered and the employee has been given time to recover.  If employers feel they are in a position where an employee may not be able to return to work, we would advise they contact the Employment Team as soon as possible so that they receive the support to minimise the risks involved in this tricky situation.

Persistent Short-Term Absences

One of the unusual and challenging aspects of long covid for many suffers is that symptoms tend to fluctuate: meaning that an employee suffering from the condition may need to take multiple short absences which may be quite unpredictable.

Ideally employers will have a short-term sickness absence review process which would be triggered in these circumstances (usually where an employee has more than a set number of days or instances of absence within a set period).  Short term absence reviews are typically used to trigger a disciplinary process that might, ultimately, lead to dismissal if attendance doesn’t improve.  However, in circumstances where the absence is caused by a medical condition it will almost certainly be more appropriate to treat such absences as if it were a single long-term absence (see above).  From a practical perspective employers may not immediately be aware that a series of absences are linked in this way and it is important to make sure line managers are collecting information about why their staff are absent from work and alive to the possibility that apparently unconnected absences may be linked to an underlying condition.

Performance Issues

Another potentially difficult scenario employers may encounter is a situation in which an employee is well enough to attend work, but their performance is suffering as a result of their long covid symptoms or perhaps the impact of the pandemic on their mental health.

Again, in this situation the employer should be sympathetic and should work with the employee and medical and occupational health professionals as appropriate to try and understand the nature of the problem.  In the first instance it might be appropriate to put temporary measures in place to support the employee and give them a chance to improve.  However, if the issues persist more effort may be needed to identify specific issues and consider reasonable adjustments.  Ultimately it may be appropriate for an employer to engage their performance management process or even to dismiss the employee.  However, such a step should only be taken with caution and where an employer is sure they have done all they can to help the employee reach the required standard.  Again, the Higgs Employment Team would recommend taking advice on this situation at an early stage so that the associated risks can be managed.

Legal Update #4 - Government intends to introduce a proactive duty on employers to prevent sexual harassment

This month the government have published their response to a consultation on sexual harassment in the workplace which ran from July to October 2019.  This confirms that the government intend to make the following legislative changes, although no date has yet been announced for their introduction:

Reformulation of Exiting Law to Create a Positive Duty to Prevent Sexual Harassment

As things stand, an employer may be liable if they (or perhaps more likely one of their employees) engages in unwanted conduct of a sexual nature towards another employee that has the purpose or effect of violating that employee’s dignity or creating an intimidating, hostile, degrading, humiliating, or offensive environment for them.  However, the employer will have a defence to any such claims, where they can show that they have taken all reasonable steps to prevent such conduct.

The proposed changes would reformulate this obligation so that they could potentially be held to account for failing to take reasonable steps to prevent sexual harassment, even where no incident had actually occurred.  The government believe, in agreement with 60% of those who responded to the consultation, that this would prompt employers to prioritise measures to prevent harassment.  The intention is that the Equality and Human Rights Commission would enforce failures to take proactive steps with individual employees still only being able to bring a claim in respect of an incident of sexual harassment.

Third Party Harassment

One of the other areas that the consultation had focussed on was the extent to which employers should be held liable for situations in which employees are subject to harassment by third parties such as customers or clients.

Responses to the public questionnaire, which was part of the consultation process, suggest that there is widespread public support for the idea that employers should be legally responsible in such circumstances (87% of respondents agreed that they should be).  In response the government have indicated that they intend to make it explicit that employers have a duty to prevent harassment by third parties but that they intend to consult further on whether liability should arise only where there is an incident or whether this should also be a proactive duty.

The government response recognises that there are some workplace environments where there is a clear increased risk of third-party harassment (such as in the hospitality sector) and it should be expected that employers take proactive steps to protect their staff from that risk.  However, in other environments, third party harassment might be much harder to predict, and it might more difficult for an employer to take proactive steps.  The government intends to consult further to ensure that the wording of any proposed law reflects these complexities. The government’s current preferred solution being to include a ‘flexible’ approach to any reasonable steps defence that requires employers to respond appropriately to the identifiable risks in their workplace whatever those might be.

Extension to Time Limits for Bringing a Claim

Evidence presented to an inquiry by the Women and Equalities Select Committee and campaigns such as the #GiveMeSix campaign organised by campaign group Pregnant then Screwed have highlighted that the current three month deadline for bringing discrimination claims may act as a barrier to justice, despite the fact that the tribunals have the discretion to provide extensions when considered ‘just and equitable’ to do so.  In recognition of this, the government intend to extend this time limit to 6 months and will consult with the tribunals about how to implement this change without putting undue pressure on an already busy tribunal service.

Use of Non-Disclosure Agreements

In a separate policy paper published by the home office this month, “Tackling violence against women and girls strategy”, it was announced that the Department of Education will be reviewing options to limit the use of non-disclosure agreements in cases of sexual harassment in higher education.  Since #MeToo there has been increasing scrutiny and public concern over the use of non-disclosure agreements and the outcome of this review may, therefore, have wider implications for employers outside of the education sector.

 

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