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Note - this information is being continually checked and updated. 

The World Health Organization (WHO) explains that coronaviruses are a large family of viruses that cause illness ranging from the common cold to more severe diseases such as SARS (Severe Acute Respiratory Syndrome). This particular episode has been named “COVID-19”. It first appeared in December 2019 in Wuhan, China and has now spread across the globe. 

COVID-19 has been named by the WHO as a worldwide pandemic.

For a selection of letters and policies that organisations can use as a result of the outbreak, please refer to our model documents section on the coronavirus.

Recent developments

Wales sets out plans to transition from pandemic to endemic

Changes have been in place since 28 march 2022 in Wales to gradually remove restrictions connected with covid, as part of their long-term 'together for a safer future' plan as set out on 4 March 2022 by Mark Drakeford, First Minister of Wales. 

Reversal of changes to SSP now in effect

The COVID-19 provisions within the Statutory Sick Pay and Employment and Support Allowance regulations were removed from 25 March 2022.

All covid-related changes to SSP rules came to an end from 25 March 2022. This includes:

  • Payment from day one of covid-related absence (where the absence lasted at least four days)
  • Payment for self-isolation, whether testing positive for covid or not
  • Covid related SSP will only paid from day one (subject to the employee meeting all other qualifying criteria) where the first day of the period of incapacity to work (PIW - the waiting days needed for SSP to be paid), was any day up to and including Thursday 24 March 2022. Where the first day of the PIW is Friday 25 March 2022 or later, SSP should be paid from day four.

For example:

Where the first day of the PIW fell on Monday 21 March, Tuesday 22 March, Wednesday 23 March, or Thursday 24 March then SSP should be paid from day one.

Where the first day of the PIW is Friday 25 March or after, SSP will be paid from day four. 

England is now 'living with covid'

Boris Johnson, Prime Minister, set out plans for England to live with covid, and the gradual easing of restrictions. This has been in place since 24 February 2022. 

Scotland implements framework for new covid measures

Announcing a three phase plan, Nicola Sturgeon, First Minister for Scotland, has outlined Scotland's "Test and Protect - transition plan" for their next steps in dealing with covid. 

Changes are currently due to come in at the end of March, 18 April and 1 May.

Further information is available in our "in depth - Living with Covid in Scotland" section. 

The World Health Organization (WHO) explains that coronaviruses are a large family of viruses that cause illness ranging from the common cold to more severe diseases such as SARS (Severe Acute Respiratory Syndrome). This particular episode has been named “Covid-19” and appeared in December 2019 in Wuhan, China.

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.

Symptoms include fever, cough, shortness of breath and loss or change to the sense of smell or taste. Some people will suffer from mild illness and recover easily whilst, in other cases, infection can progress to pneumonia. Reports suggest that the elderly, those with weakened immune systems, diabetes, cancer and chronic lung disease are the most susceptible to serious illness and death.

Symptoms can appear in as few as two days after infection but it is thought that it can take up to 14 days.

Employees who experience symptoms should follow Government advice on reporting this, which may include either internet or telephone services depending on the individual’s location in the UK. Note that this may not include calling 111, which had been the original advice.

The updated list of symptoms include: 

  • Continuous cough
  • High temperature, fever or chills
  • Loss of, or change in, normal sense of taste or smell
  • Shortness of breath
  • Unexplained tiredness, lack of energy
  • Muscle aches or pains that are not due to exercise
  • Not wanting to eat or not feeling hungry
  • Headache that is unusual or longer lasting than usual
  • Sore throat, stuffy or runny nose
  • Diarrhoea, feeling sick or being sick

The virus is most likely to spread from person to person through:

  • direct contact with a person while they are infectious;
  • contact with droplets when an infected person coughs or sneezes; or
  • touching objects or surfaces (such as drinking mugs or desks) that were contaminated by droplets from secretions coughed or sneezed from an infected person with a confirmed infection, and then touching your mouth or face.

The World Health Organisation’s standard infection control measures are: 

  • frequently cleaning hands by using alcohol-based hand rub or soap and water
  • when coughing and sneezing cover mouth and nose with flexed elbow or tissue – throw tissue away immediately and wash your hands.
  • avoid close contact with anyone who has fever and cough.
  • if you have fever, cough and difficulty breathing seek medical care early and share previous travel history with your health care provider.

Employers have a duty of care towards their employees which includes not exposing them to unnecessary risk. In this case, that may include not putting them in a position in which they could become infected by the virus without taking all reasonable precautions.

This duty of care, where Coronavirus is concerned, may differ depending on an employee’s specific circumstances, for example, if they are older or they have underlying conditions.

It’s important to remember that  employees will be worried about the virus. In addition to having a duty of care to protect health and safety, employers  also need to consider their wellbeing. Consider any wellbeing initiatives the company offers and remind employees of them, for example, an Employee Assistance Programme.

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; the position in Scotland and Wales is set out separately. 

What is the governments 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 7 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 25 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 (i.e. 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. Tests will be available to purchase in supermarkets and pharmacies.
  • Some specific groups will retain access to free testing, e.g. NHS and adult social care staff. 
  • Those with symptoms or who feel unwell should try to stay at home and avoid contact with others until they feel well enough to resume normal activities and don’t have a temperature.
  • Those who test Covid-positive are advised to try to stay at home and avoid contact with others for five days.
  • No longer advised that domestic venues and events use the NHS Covid Pass.
  • Removal of the health and safety requirement for employers to explicitly consider Covid in their risk assessments.

Our policy for employers is available here

In March 2022, following a reduction in the numbers of Covid-related hospitalisations and deaths, the First Minister announced plans to end all restrictions in Scotland.

The changes announced by Nicola Sturgeon as the new “Strategic Framework” apply to Scotland only; England and Wales have set out their own position.

What is the governments living with Covid strategy? 

On 15 March 2022, Nicola Sturgeon set out Scotland’s long-term Covid plan, which outlined a series of measures the Scottish government adopted

From 21 March 2022:

  • Removal of legal requirement for businesses to take steps to reduce the spread of Covid, including retaining customers’ contact details.

From 25 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 (i.e. they are medically fit and able to work despite a positive test result).
  • 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 18 April 2022:

  • Removal of guidance that lateral flow tests should be completed twice weekly for those without Covid symptoms.
  • Free lateral flow tests are no longer available for the general population.
  • Removal of legal requirement to wear a face covering anywhere in Scotland.

Until the end of April 2022:

  • Those who test positive for Covid should isolate for at least 7 full days.
  • Those with Covid symptoms should isolate and book a PCR test.
  • Close contacts of a positive case should take a lateral flow test every day for 7 days.

From 1 May 2022:

  • Those with Covid symptoms are longer required to take a test.
  • Testing sites have closed.
  • Contact tracing has ended.
  • The public health advice for those who feel unwell, whether that be with Covid symptoms or symptoms of another illness, is to stay at home until they feel better, to aid their recovery and reduce the risk of infecting others.

Our policy for employers is available here

In March 2022, following a reduction in the numbers of Covid-related hospitalisations and deaths, the First Minister announced plans to end Covid restrictions in Wales.

The changes announced by Mark Drakeford as the new plan on “Together for a Safer Future” apply to Wales only; Scotland and England have set out their own position. 

Several changes took effect from 28 March 2022, however other measures will remain in place until May. The Welsh Government reviews restrictions, in line with data and advice from medical advisors, every 3 weeks. At the end of the review, an announcement is usually made to confirm whether they will remain in place, be amended, or be removed.

What is the governments living with covid strategy? 

On 4 March 2022, Mark Drakeford set out Wales’ long-term Covid plan, Together for a Safer Future, which outlines a series of measures the Welsh government is to adopt.

From 25 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 (i.e. they are medically fit and able to work despite a positive test result).
  • 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 28 March 2022:

  • Removal of the legal requirement to self-isolate following a positive Covid test.
  • Removal of the legal requirement to wear a face mask in shops and on public transport.
  • PCR tests will no longer be free for the general public, but lateral flow tests will remain available until June.
  • PCR tests will be restricted to care homes and hospitals, and health and social care staff. 

From 18 April 2022:

  • Removal of the legal requirement for organisations to carry out a specific Covid risk assessment and implement reasonable measures to reduce the risk of spreading the virus.

Measures to remain

It is hoped the remaining Covid restrictions will be removed from 9 May 2022. Until then:

  • It is still a legal requirement to wear a face covering in health and social care settings.
  • The Welsh Government strongly advises people to wear a face covering in crowded indoor public places, like in shops and on public transport.
  • Self-isolating after a positive test is strongly recommended, even though it’s not a legal requirement.
  • The £500 self-isolation payment will continue to be available to people on lower incomes and parents until June.
  • Contact tracing will continue until June.

Our policy for employers is available here

This applies to England, Scotland and Wales, unless stated otherwise. 

England and Scotland (since 1 May 2022)

Covid-positive individuals should try to stay at home and avoid contact with other people for five full days.

Positive cases should (In England, only where possible):

  • 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.

Wales

Anyone who displays Covid symptoms should order a lateral flow test and stay at home and avoid contact whilst awaiting the result.

Covid-positive individuals should self-isolate 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 5. If the tests remain positive, isolation can end on day-10.

Scotland (until 30 April 2022)

Anyone who displays Covid symptoms should order a PCR test and stay at home and avoid contact whilst awaiting this result; this guidance is set to change in May 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 seven 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 7.

England, Wales and Scotland (since 1 May 2022) 

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
  • Wash hands frequently or use hand sanitiser
  • Pay close attention to the main Covid symptoms and book a lateral flow test if these develop (Wales only) 

Previous rules 

Scotland (until 30 April 2022) 

Fully vaccinated people who have been identified as a close contact by NHS Test and Protect; or, who live with, or have stayed overnight in the household of someone who has tested positive for Covid are advised to take a lateral flow test every day for seven days.

Those who are not fully vaccinated should isolate for 10 days and book a PCR test. Even if the test result is negative, the full 10-day isolation should still be completed.

Fully vaccinated means receiving 3 doses of an approved vaccine at least 14 days before last seeing the Covid-positive person.

This applies to England, Scotland and Wales, unless stated otherwise. 

SSP rules in place from 25 March 2022

All covid-related changes to SSP rules came to an end from 25 March 2022. This included:

  • Payment from day one of covid-related absence (where the absence lasted at least four days)
  • Payment for self-isolation, whether testing positive for covid or not
  • Covid related SSP will only paid from day one (subject to the employee meeting all other qualifying criteria) where the first day of the period of incapacity to work (PIW - the waiting days needed for SSP to be paid), was any day up to and including Thursday 24 March 2022. Where the first day of the PIW is Friday 25 March 2022 or later, SSP should be paid from day four.

England and Scotland

  • Lateral flow and PCR tests will no longer be free for the general public (but will be available to some specific groups such as NHS and adult social care staff). They will instead be available to purchase in pharmacies and supermarkets. 
  • Those with a high temperature or symptoms of a respiratory infection, including Covid, or who feel unwell should “try to” stay at home and avoid contact with others until they feel well enough to resume normal activities where they don’t have a temperature.
  • Those who test Covid-positive are advised to “try to” stay at home and avoid contact with others for five days.
  • New guidance will be released that outlines the steps people can take to reduce the chances of catching and spreading Covid and other respiratory infections, like flu.
  • The government’s public health guidance says anyone with a high temperature or symptoms of a respiratory infection, including Covid, or who feel unwell, should try to stay at home and avoid contact with others until they feel well enough to resume normal activities and don’t have a temperature.

Symptoms of Covid, flu and other common respiratory infections are outlined as:

  • Continuous cough
  • High temperature, fever or chills
  • Loss of, or change in, normal sense of taste or smell
  • Shortness of breath
  • Unexplained tiredness, lack of energy
  • Muscle aches or pains that are not due to exercise
  • Not wanting to eat or not feeling hungry
  • Headache that is unusual or longer lasting than usual
  • Sore throat, stuffy or runny nose
  • Diarrhoea, feeling sick or being sick

Anyone with these symptoms should avoid close contact with people who are at higher risk of becoming seriously unwell if they are infected with Covid and other respiratory infections. This includes people who are older, pregnant, unvaccinated or have certain long-term conditions or a compromised immune system.

Employees are encouraged to work from home, if they feel well enough to do so. If this isn’t possible, employers should consider other options to reduce the risk of transmission.

Wales

  • The government’s public health guidance says anyone who has the main symptoms of Covid (i.e. 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 self-isolate.

  • In line with the position  in England, the legal requirement to isolate was removed and replaced with guidance to stay at home and take a lateral flow test if showing symptoms, and isolate for at least 5 days if positive.

  • PCR tests are no longer free for the general public, but lateral flow tests are to remain available until June. PCR tests are now restricted to care homes and hospitals, and health and social care staff.

Previous rules 

Scotland (until 1 May 2022)

The advice in Scotland was the same as for Wales, with some differences:

Until the end of April:

  • Those who test positive for Covid should isolate for at least 7 full days.
  • Those with Covid symptoms should isolate and book a PCR test.
  • Close contacts of a positive case should take a lateral flow test every day for 7 days.

From 18 April:

  • Free lateral flow tests will not be available for the general population.
  • Guidance that lateral flow tests should be completed twice weekly for those without Covid symptoms will be removed.
  • The legal requirement to wear a face mask in shops, on public transport and in other indoor places will be removed and replaced with guidance. 

From 1 May:

  • Those with Covid symptoms will no longer be required to take a test.
  • Testing sites will close and contact tracing will end.
  • The public health advice for those who feel unwell, whether that be with Covid symptoms or symptoms of another illness, will be to stay at home until they feel better, to aid their recovery and reduce the risk of infecting others.

Rules in place from 28 September 2020 and 24 February 2022

The Government is advising that certain people should self-isolate. Exact rules differ between England, Scotland and Wales.

Self-isolation is generally for a period of 10 days (5 full days if 2 negative LFT are taken), but remains at 14 days prior to a hospital admission.

Between 28 September 2020 and 24 February 2022 the Health Protection (Coronavirus Restrictions) (Self-isolation) (England) Regulations 2020 were in force in England which introduced various criminal offences in respect of self-isolation. It was an offence for an employer to knowingly allow a worker to attend any place for any purpose relating to their employment during the designated period of self-isolation. Breaches of this law could have resulted in a fixed penalty notice of £1000 for the first offence increasing to £10,000 for repeated offences.

The terminology here was important; a breach was not restricted to an employer's requirement for the employee to attend the workplace, or even a request. It was also not restricted to attendance at the workplace, but covered attendance at any place for any purpose relating to their employment.

The employer must have been aware of the employee’s need to self-isolate, and of any breach of the self-isolation requirement by the employee. Workers were under a legal obligation to inform their employer of the need to self-isolate; however, this only applied where the employee was not already working from the place they are self-isolating which was likely to be their home. Therefore, this will not apply when the employee is already working from home.

Employers may wish to confirm this stance to their employees by reminding them of the need to inform the employer of the requirement to self-isolate, and that they are prohibited from attending the workplace, or any other place for the purposes of work, during the self-isolation period.

Emergency legislation put in place requires statutory sick pay (SSP) to be paid to those self-isolating as described above in order to prevent the infection or spread of the virus in accordance with public health guidance, who is then unable to work as a result, providing they meet the other eligibility criteria.

Where the first day of absence was 13 March 2020 or later, SSP is payable from day one for anyone self-isolating, provided that other eligibility criteria are met including that the employee earns at least the lower earnings limit, and has been absent for at least 4 days in order to create a ‘period of incapacity for work’.

Those advised to shield on or after 16 April 2020 were entitled to SSP, again, subject to the qualifying criteria. The maximum length of SSP payment (28 weeks) applied; shielding periods could be long and, if other periods of absence are ‘linked’ under SSP rules, it was possible a shielding employee could exhaust their SSP entitlement. Some employers sought to agree furlough, subject to meeting the qualifying criteria, with a shielding employee due to the apparent difference in treatment of furlough for such individuals.

In addition, measures have been put in place for employees to obtain medical evidence from NHS 111 rather than their own GP. “Isolation notes” provide evidence that an employee has been advised to self-isolate. Employers may ask for this document to evidence absence of over seven days, in the same way as with a normal “fit note” from the GP. As with normal sickness absence, no isolation note will be issued for the first seven days, during which employees can self-certify.

The notes can be accessed through the NHS website and NHS 111 online. The note will be emailed to the employee, or in some cases, directly to the employer.

In respect of those who were shielding, the letter received from the NHS advising the individual to shield is sufficient evidence for employers for payment of SSP.

In respect of those who have received a notification informing them of close contact with someone who has tested positive for coronavirus, the notification they received can be used as evidence.

Employers may be able to agree a period of homeworking during self-isolation provided the employee remains fit for work, or annual leave, in which case full pay will be maintained.

Rules in place after 24 February 2022

The legal requirement to self-isolate following a positive test will be removed, as will the legal requirement for individuals not fully vaccinated to isolate following close contact with a positive case. There will also no longer be a requirement for individuals to tell their employer that they must isolate. 

Until 1 April 2022, Adults and children who test positive will continue to be advised to stay at home and avoid contact with other people for at least 5 full days and then continue to follow the guidance until they have received 2 negative test results on consecutive days.

Self-isolation support payments will also end, as will national funding for practical support and the medicine delivery service. 

There will also be no more routine contact tracing, and contacts will no longer be required to self-isolate or advised to take daily tests.

Clinically extremely vulnerable

People who are at particularly high risk were categorised as “clinically extremely vulnerable”. This includes people who have certain types of cancer, have had an organ transplant, severe asthma etc were urged to stay at home to “shield” themselves. Such individuals received a letter from the NHS/Chief Medical Officer initially advising them to stay indoors and avoid all face to face contact with other people for 12 weeks; very strict advice applied on how they should do washing, prepare meals etc.

Shielding was paused for the last time from 1 April 2021 in England and Wales, and from 26 April 2021 in Scotland. On 15. September 2021 it was announced that shielding has been permanently ended, and centralised guidance will no longer be issued for this.

The government announced in February 2022 that this classification will no longer be used. 

Mask wearing is no longer required in England or Scotland, however it is suggested in crowded and enclosed spaces and healthcare settings.  

In Wales, face coverings must be worn in health and social care settings. However, there is no longer a legal requirement to wear a face covering in other indoor public places or on public transport. Government advice strongly recommends that a face covering is worn even where there is no requirement to. 

Previous rules 

From 10 December 2021 to 27 January 2022, mask wearing was once again law in most public indoor settings, except for those exempt from doing so and under 11s. Staff members who must work within a public area had to also wear masks, unless exempt.

For example, a worker in an estate agents must wear a mask in the area where the public can enter, even if that is where their desk is located. However, a worker in the same estate agent who works in a back office, from which the public are prohibited from entering, need only legally wear a mask when going to and from that office, if access is gained through a public area.

Staff in areas not accessible to the public did not legally have to wear a mask, but  were strongly encouraged to do so. 

Exempt public settings include: 

  • Restaurants, cafés and canteens
  • Bars and shisha bars
  • Gyms & exercise facilities
  • Photography studios
  • Nightclubs, dance halls and discotheques

This list is based on the fact it is impractical to wear a mask whilst eating and drinking, and it is not recommended when exercising (such as dancing). 

Where the employer has concerns about a non-symptomatic employee (particularly if it is known or suspected that the employee has had contact with someone known to have the virus) then the best advice might be to play it safe with a brief period of suspension on precautionary grounds.

Where the employer chooses to suspend returning employees just as a precaution, it will have to be on full pay unless the contract gives them a right to suspend without pay for this reason (which is unlikely).

The employer may also wish to explore alternatives, such as giving the employee alternative duties that can be done from home. 

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

England, Wales and Scotland (unless specified otherwise)

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 or 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 in doing this.

In England, employers won’t face sanctions, if they allow employees to come to work. However, employers should keep in mind the impact this might have on employee relations.

In Wales, however, employers have a legal duty to take reasonable measures to minimise the risk from exposure to, and spread of, Covid. If an employee fails to isolate when required to do so as a result of their employer’s actions, the employer could be guilty of an offence and face a fine of up to £10,000.

In Scotland, the removal of government guidance to isolate and book a PCR test if showing Covid symptoms means employees won’t be breaching restrictions and employers won’t face sanctions, if they come to work. However, employers should keep in mind the impact this might have on employee relations.

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.

The government guidance document stated that data on Covid-related deaths between December 2020 and June 2021 found Covid mortality increased with age. The same analysis also showed the risk was higher for people with specific clinical conditions (e.g. 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 will also need to be able to objectively justify why introducing such a policy 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; 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.

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 5 full days (7 days in Scotland). 

In England only 

NHS Organisations

Patient-facing healthcare staff in the NHS and NHS commissioned services who have symptoms of a respiratory infection should take a lateral flow test as soon as they feel unwell. Free lateral flow tests will remain available for these workers.

If the test is positive, they 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 5.

Adult Social Care Organisations

Staff members in CQC-regulated care homes and homecare organisations; some extra care and supported living services; some adult day care centres; personal assistants; Shared Lives carers; and some social workers will also retain access to free lateral flow tests.

Staff should take a lateral flow test as soon as they experience the main symptoms of a respiratory infection, and take another one 48 hours after the first test. Symptomatic staff should staff away from the workplace when conducting these tests.

If a positive result is returned at work, they should wear a face mask and should return home immediately, using private transport if possible. They should follow the above guidance on avoid contact with others for 5 days.

An employee’s pay entitlement will depend on various situational factors.

These rules apply regardless of the employee's location in England, Scotland or Wales.

Employee instructed to continue 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.

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.

For absences beginning up to and including 24 March 2022, employees are entitled to receive SSP from day-one for Covid-related absences.

From 25 March 2022, an employee who tests positive and is too unwell to work is entitled to SSP provided they are sick for at least 4 calendar days and have served 3 waiting days. Essentially, pre-pandemic SSP arrangements apply.

Employee is well

For absences up to and including 24 March 2022, employees (subject to eligibility criteria) were entitled to SSP from day-one for Covid-related absences. This included when the employee said they couldn’t work because they tested positive and were unwell, tested positive but were asymptomatic and feeling well, and when the employee was instructed to stay at home as a close contact.

From 25 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. As such, they may be more inclined to say they will continue working.

Where an employer requires an employee to stay at home and avoid contact with others for Covid-related reasons, the correct approach would be to maintain full pay for the duration of the period.

Employers who choose to reduce pay in these circumstances should be aware of the potential risks of subsequent claims for unlawful deductions from wages or breach of contract. Should this continue for an extended period of time, there may also be a further risk of constructive dismissal claims from employees with more than 2 years’ service.

Similarly, where pay is reduced, employees may be less likely to tell their employer they have Covid or symptoms, or been in close contact, thus further increasing the likelihood of there being a Covid-positive person in the workplace.

In these situations, employers may wish to extend sick pay entitlements to them, to encourage Covid-positive cases to stay at home and reduce the likelihood of Covid transmission in the workplace.

Contractual sick pay

Employers may wish to introduce a contractual entitlement to pay, to cover all or part of the Covid stay at home period.

Employers can choose to apply this equally regardless of whether the employee is “ill” with Covid or has minor symptoms so still well enough to work. Doing so will likely make employees feel more inclined to report a positive test result and reduce workplace anxiety that there are colleagues working with Covid.

Employers will also need to assess how this will apply in practical terms. Where the employee is not actually “sick,” it will not be appropriate to treat the time off work as sickness absence and count it towards normal absence triggers for disciplinary action.

If employers do count Covid-related time off into sickness absence triggers, they may face issues later down the line if the employee exhausts their contractual sick pay entitlement or are disciplined for their level of absence. As such, employers may want to instead treat these periods as “special leave” or “other authorised absence.”

Coronavirus is not a reason to treat employees differently because of their national origin. Placing extra obligations on individuals (more robust hygiene methods, for example) just because they are from China places employers at risk of a claim of race discrimination. Extra hygiene measures, if implemented, should be required of all employees. 

Employers should be alert to ‘banter’, or more serious instances of harassment, between employees about the virus which relates to someone’s nationality or ethnicity and ensure that their zero tolerance stance to harassment is maintained.

This applies to England, Scotland and Wales, unless stated otherwise. 

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 guidance and have a period  of no less than 5 (7 in Scotland) 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.

This applies to England, Scotland and Wales, unless stated otherwise. 

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

This applies to England, Scotland and Wales, unless stated otherwise. 

Many organisations already ask staff to complete regular Covid tests.

In England, now that charges are in place for both lateral flow and PCR testing in April 2022, businesses should assess how they will continue to require this.

In Wales, now that PCR tests have been removed, businesses should assess how they will continue to require this.

In Scotland, following the removal of lateral flow testing for the general public on 18 April 2022 and of PCR testing from 1 May, businesses should assess how they will 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.

Any records relating to Covid tests fall under special category data, so must be processed in line with data protection rules.

This applies to England, Scotland and Wales, unless stated otherwise. 

In England (since 24 February 2022) and Scotland, there is no legal requirement for employees to tell their employer when they have Covid.

Employers can consider introducing a contractual requirement that employees must do so in England, Scotland and Wales. 

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 (i.e. no pay or sick pay may make an employee more reluctant than if they knew full pay would be maintained).

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 outline this in their policy so employees are fully aware of the potential consequences of working whilst Covid-positive. Employers should also set out what their sanction would be.

What do employers need to consider if they want to change sick pay rules for unvaccinated staff?

There have been recent reports that some employers are reducing sick pay to SSP for unvaccinated staff who have to isolate following contact with a positive case of Covid. However, this is not a straightforward measure to take, and employers will need to tread carefully in how they approach this to avoid serious staff issues. 

Sick pay is likely to be a contractual entitlement, and therefore changing it without consent would be a breach of contract for which the employer could have to pay financial restitution for unlawful deduction of wages. As a contractual clause, changing it requires consultation with employees. If over 20 employees are affected, this would be collective consultation with representatives over a 30 (for 20 - 99 employees) or even 45 (for 100+ employees) day period.

What risks do employers face if they decide to cut sick pay for unvaccinated staff? 

The following risks could arise should employers take this action: 

  • Sex discrimination, if a woman is unvaccinated because of pregnancy
  • Disability discrimination, if the reason for being unvaccinated is related to a disability
  • Religious belief discrimination, if there are religious reasons for not being vaccinated

It has not yet been tested by the courts, but potentially refusing to be vaccinated could be philosophical belief if it met the following tests:

  • be genuinely held
  • not just be an opinion or viewpoint based on the present state of information available
  • relate to a weighty and substantial aspect of human life and behaviour
  • attain a certain level of cogency, seriousness, cohesion and importance
  • be worthy of respect in a democratic society, and not incompatible with human dignity or in conflict with the fundamental rights of others.

Therefore, employers looking to introduce this will have to interrogate every case before making the decision not to pay enhanced sick pay.

Employers must also carefully consider if this is a proportionate means of achieving a legitimate aim. A contractual change of this nature should not be done because of the moral or ethical beliefs of management, or to punish those not vaccinated, but where there is a real business need to do so as the consequences are significant.

What factors should employers take into account when considering reducing sick pay for unvaccinated staff?

Factors to take into account include:

  • Why have they not yet had the vaccine?
  • Do they have an appointment to have their first or second dose?
  • Are they medically exempt, and if so does the employer know why?

What are other potential consequences of taking this action?

This could have the effect of creating a two-tier workforce, which could have serious employee relations implications and cause unrest within the workforce. There could also be reputational damage of taking this action for the organisation amongst its customers.

There is also the possibility that it could increase the risk of unvaccinated staff members attending work when they might have the virus, risking bringing Covid into the workplace and ultimately causing more staff to go off.

What can employees do if they are worried about their company changing the sick pay policies?

Unvaccinated employees who are not exempt may have to carefully consider their stance on vaccination, and weigh it against the risk of repeated self-isolation on SSP.

Where there are employee representatives in place, they are likely to have access to channels to pass these worries on. Using established employee feedback mechanisms such as working groups is a constructive way of sharing concerns.

Employees may also take any opportunities to engage in a dialogue with their employer about this, and the reasons for doing this, such as in 1-1 meetings with management or relevant staff meetings.  

Are any big-name employers doing this?

Ikea have had a policy in place since September 2021 around this. They have said that unvaccinated staff who are medically exempt will only get SSP if they have to isolate as a result of being in close contact with someone with the virus. However, those unvaccinated will be paid in full if they test positive for Covid or have a valid permanent or temporary exemption from being vaccinated.

At Wessex Water, those who are fully vaccinated, have had one dose of the vaccine, are medically exempt, or who have a confirmed vaccination appointment will continue to get enhanced sick pay. Those who do not fall within this and have to isolate as a result of close contact with a positive case will get SSP only. Wessex Water have defended their introduction of this policy as their work involves the provision of uninterrupted essential water and sewerage services, and recent absence levels double of what they have been seeing have stretchered their services.

Next have also removed enhanced sick pay where unvaccinated staff have to isolate due to being a close contact of a positive case.

 

 

Where there is a charge for a covid test (currently in place in England, and in Scotland from 18 April and Wales from June), 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.

When the initial ‘lockdown’ announcement came in March 2020, very many businesses implemented a short notice temporary home working arrangement when workers were “advised” to work from home where possible.

Since then, there have been several adjustments to the advice on working from home. In England, the Government's instruction for people to work from ended with effect from 19 July 2021 and was reintroduced from 13 December 2021. Similar relaxations of restrictions were applied in Scotland from 9 August 2021 and Wales from 7 August 2021 and later reintroduced. The Welsh government went so far as to introduce fines for those working outside of the home unnecessarily (and for their employers too). 

Since 28 January 2022, fines in Wales have been abolished. Whilst working from home remains an important measure against the spread of the virus, failure to do so is no longer subject to a fine. 

Similarly in Scotland, in late January 2022 the order to work from home was lifted. However, the Scottish government remains cautious, and does not encourage a wholescale return to the office, instead encouraging a hybrid style of working that combines working from home and the office. 

The start of the pandemic 2020

Vulnerable employees

When measures were first implemented to protect people from contracting the virus, the Government stated that certain people who fell into the ‘vulnerable’ category were “strongly advised” to work from home, where possible. This category included people who are 70 years old or over; women who were pregnant and those who have an underlying health condition such as diabetes, asthma, heart disease etc.

There were no instruction for employees in the above categories to self-isolate meaning that where it was not feasible for an employee to work from home, they could still be in work but ensure precautions should have been put place to protect their wellbeing. An employee in one of the above categories who wished to remain at home but could not work from home was technically withdrawing their services and will not be entitled to pay. However, employers may have chosen to show leniency in this situation, given the circumstances, and pay an amount equivalent to SSP or full pay. It should be noted that the SSP equivalent payment did not qualify for recovery from the Coronavirus SSP Rebate Scheme which allowed employers with fewer than 250 employees to recover coronavirus related SSP payments to a maximum of 2 weeks payment per employee, because the individual was not under Government guidance to self-isolate. 

On the other hand, if the employee was happy to present themselves for work but the employer did not wish to take any risks and, as a precautionary measure, sent the employee home, the employee was entitled to full pay unless the contract said otherwise.

Alternatively, the employer may have chosen to try to agree/enforce a period of annual leave if the employee could not work from home.

All employees

Governments in Scotland and Wales encouraged businesses to allow all staff to work from home where necessary and appropriate from the beginning of the pandemic.

New laws were implemented in Wales from 20 December 2021, which essentially provided that no person could leave the place where they are living, or remain away from that place, for the purposes of work or to provide voluntary or charitable services. This rule applied where it was “reasonably practicable” for the person to work from home.

There was no further guidance on what “reasonably practicable” meant. Guidance said that employers should be as flexible as possible to enable staff to work from home including providing laptops, phones, etc.

Employers in Wales who continued to require employees to work from the workplace had to think carefully about whether it really was not reasonably practicable for someone to work from home. In most cases, it was obvious that work had be done from the workplace, eg shop assistants; restaurant waiting staff.

In other cases — offices, for example, “reasonably practicable” was shaped differently. A general rule of thumb (though this quote has only been specifically used in Scotland, not Wales) was that if someone worked from home in March 2020, then they could again. If something had arisen or changed since then a different approach was needed; for example, if someone moved house and had poor internet coverage, or it was clear that the employee suffered from poor mental health because of working from home, then these were likely to be sufficient reasons for not working at home.

Where the rule was breached, a penalty notice could be issued. Employers could be fined £1000 per breach, rising to £10,000 for repeated breaches. Individuals could also be fined up to £60 for their breach. It is unclear whether a worker and an employer would both be fined in relation to the same incident. However, an employee landed with a £60 fine for going out to work when required by their employer is likely to want to pass that fine on to their employer. It is difficult to see that a reasonable employer would not accept to pay the fine on behalf of the employee.

In England, the Government stance from 13 December 2021 was that employees should work from home where they are able to do so, unless physical or mental difficulties mean this was deemed inappropriate, or where there was a particularly difficult home environment.

This applies to England, Scotland and Wales.

Those who were previously considered as clinically extremely vulnerable or "sheilding" 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.

On 23 April 2020, the Government announced that essential workers (the same list as those whose children may still go to school for those in England; actual lists may differ in Scotland and Wales) can have a coronavirus test where they “need” it.

Various schemes were subsequently set up for employers to run in house testing procedures using lateral flow tests that could be obtained for free from the Government. These schemes however are no longer in place.

Free lateral flow tests are now available for those who:

  • are aged 11 or older
  • do not have coronavirus (COVID-19) symptoms
  • have not been told to self-isolate.

From 1 April 2022, the government will no longer provide free universal symptomatic and asymptomatic testing for the general public in England.

In Scotland, from 18 April 2022 free lateral flow tests will no longer be available for the general population, and there will no longer be guidance to text twice weekly. From 1 May 2022, those with covid symptoms will no longer be required to take a test at all. 

In Wales, since 28 March 2022, PCR tests have been restricted to care homes, hospitals, and health and social care staff. Lateral flow tests will remain available to the general population until June. 

What approach should I take towards the vaccine for my employees?

The roll out of the coronavirus vaccine signifies the biggest step yet in combating the risk posed to the public from serious illness and enables employers to begin to envisage a return to more normal operations. However, the Government has not made the take up of the vaccine mandatory so employers may have questions about their position when it comes to their employees having the vaccine.

Despite the protection that the vaccine offers to those who have it, employers should be aware that the restrictions put in place by the Government, including social distancing and other COVID secure measures, are likely to remain in place for the foreseeable future. This means that, even where employees have had the vaccine, operations will not revert to ‘normal’ for some time yet.

The approach to be taken to the vaccine by employers will be dictated by various things including their industry sector and the individual circumstances of the employee.

Whilst there are different approaches that employers may take, the most appropriate stance to take is likely to be one of encouragement to have the vaccine, rather than requirement.

Can I require my employees to have the vaccine?

Under the Health and Safety at Work Act 1974, employers have a duty to take all reasonably practicable steps to ensure the health, safety and welfare of their staff. However, it is not likely that this will include, for all employers, the requirement for all employees to have the vaccine.

Forcing employees to have the vaccine may well trigger human rights implications for the employer, as well as criminal charges of assault. Medical intervention requires an employee’s consent.

A less intrusive method of implementing a policy that requires employees to have the vaccine may still carry human rights implications as well as risks from an employment rights perspective which are covered in this guidance note.

Having a policy that requires employees to have the vaccine may, in some cases, be viewed as reasonable. This will be dictated by the individual facts of each case in question.

An employer’s position in this regard may be strengthened by:

  • an existing clause within the contract of employment stating that medical intervention is to be administered where necessary to protect the employee’s health and that of those they come into contact with at work or
  • the industry within which they operate e.g. where close contact with others is intrinsic to the role which creates a high-risk environment.

Notwithstanding the above, employers would have to balance any requirement against the reality that social distancing and other health and safety measures including the wearing of a face covering currently in place are likely to remain in place for some time; having the vaccine will not remove the need to continue to follow COVID secure measures in the workplace.

Initial research on two vaccine types has shown that transmission of COVID-19 is reduced by up to 49%. A reduction in transmission may provide further support to an employer’s position should it choose to require employees to have the vaccine.

Employers who have successfully identified alternative ways to reduce the risk of exposure, for example, by implementing homeworking, may not be in a strong position to require employees to have the vaccine.

Employers should consider whether there are any other reasonable steps that can be taken to mitigate the risk of exposure to coronavirus before requiring employees to have the vaccine.

As we explore below, some employees will have valid reasons for refusing to have the vaccine and will receive legal protection against action taken against them for this reason. Employers will, therefore, need to consider how to accommodate these individuals. Other employees who do not wish to have the vaccine may then question why that accommodation cannot be extended to them.

Can I require my care home staff to have the vaccine?

Legislation to revoke previously enacted laws on mandatory vaccination came into force on 15 March 2022. There is now no legally mandated requirement to be vaccinated against Covid in the UK. We wait to see if a regulatory requirement will be created. 

The below information remains for background information only. 

It was a legal requirement for certain workers to be fully vaccinated by 11 November 2021, unless exempt, in order to be deployed in a care home in England. 

Care homes in Scotland and Wales are not under a legal obligation to ensure that their staff have been vaccinated against COVID-19. They may, however, decide that they wish to implement a rule which requires their existing staff to have the vaccine. In this case, their reasoning would be subject to the same scrutiny as for all other industries, and the risks of such a rule are laid out below.

It is more likely that an instruction to have the vaccine would be considered reasonable in the care industry due to the level of prolonged close contact that is intrinsic to the role, and this will certainly be of interest to care home employers in Scotland and Wales who will need to rely on this principle if they are to lawfully instill a vaccine requirement. 

The employment tribunal judgment in Allette v Scarsdale Grange Nursing Home Ltd is useful here. It featured a care home in England that decided to require its employees to have the vaccine at a time before the mandatory vaccine laws were in place. One employee refused to have the vaccine on the basis of her distrust of vaccines and concerns that the vaccine had been created too quickly for it to be safe. She was dismissed for a failure to follow a reasonable management instruction. Her dismissal was held to be fair because the employer's instruction was reasonable; the care home needed to protect the safety of residents, staff and visitors. A secondary reason was concern about the withdrawal of insurance cover from the home's insurers. The employee's refusal was found to be unreasonable because it was not based on valid medical evidence. Although her human rights were infringed, the infringement was justified. A late in the day assertion by the employee that her refusal was down to her Rastafarian beliefs was not pivotal because the employer believed that was not the real reason for her refusal and it was not outside the range of reasonable responses not to investigate that further.

Despite the finding in this case, the employment tribunal pointed out that it does not open the door for all employers to require their employees to have the vaccine where there is no legal requirement for such. Each case will hang entirely on its own facts. Of course, the procedure used to dismiss any employee for this reason will also be an important factor in its success.

What are the risks with requiring employees to have the vaccine?

Unfair dismissal

Having a policy requiring employees to take specific action is commonly accompanied by the threat of action against those who refuse to comply with the policy, which could include dismissal.

Employees with two years’ continuous service have the right not to be unfairly dismissed. Fair dismissals require a potentially fair reason for dismissal, a fair procedure and the decision to dismiss must fall within the range of reasonable responses. It is likely that employers who proceed with the dismissal of an employee for refusing to have the vaccine will rely on the ‘some other substantial reason’ ground.

Employers would need to show that the requirement to have the vaccine was a reasonable management instruction; and that it was reasonable to dismiss the employee in the circumstances, including an assessment of whether there were any other ways that the employee’s refusal could be dealt with in order to keep them in employment,  including consideration of other available roles.

Constructive dismissal

Employees may feel that the implied term of mutual trust and confidence has been breached if their employer imposes a requirement to have the vaccine, entitling them to resign in protest and claim constructive dismissal.

Discrimination

Employees may have valid reasons for refusing to have the vaccine which are connected to a protected characteristic covered by the Equality Act 2010. For example:

  • pregnancy – research is ongoing in this area but pregnant employees are advised to speak with their doctor about their individual circumstances before having their vaccine
  • medical conditions - those with certain medical conditions are advised not to have the vaccine. Some medical conditions will qualify as a disability and so be covered by the Equality Act.
  • religion or belief - some employees may refuse to have the vaccine due to their religious belief. The government has indicated, however, that this would not be a valid reason to refuse the vaccine. Though it would need to be tested by an employment tribunal, those who align themselves with the anti-vax movement may argue that they are protected by the philosophical belief element of the Equality Act.

It is important, therefore, to fully understand why an employee has refused a reasonable management instruction to have the vaccine, bearing in mind the potentially personal nature of the refusal. For example, an employee trying to become pregnant may have wished not to share that information. Alternatively, an employee may have to reveal a previously undisclosed disability as their reason.

Having a protected characteristic does not make dismissal impossible. Indirect discrimination, for example, can be objectively justified therefore the employer would have the opportunity to say that they had a legitimate aim for requiring the vaccine to be taken, and that there was no other less discriminatory method than dismissal (or other action) or achieving that aim.

Can I insert a clause in contracts to require employees to have the vaccine?

Where existing employees are concerned, this would mean a change to terms and conditions. Changes to contractual terms and conditions cannot generally be made without employee agreement; consultation with employees (and trade unions, where necessary) would be needed with a view to seeking agreement. To impose the change without agreement may amount to a constructive dismissal.

Where agreement is not forthcoming, you may decide to terminate the employee’s employment and re-employ them on the new terms. However, this runs the risk of unfair dismissal and specific advice should always be taken in this regard.

Including a contractual clause for new employees will need agreement from the employee to be employed on those terms.

In either case, implementation of the clause should be done in a reasonable way and take into consideration the individual circumstances of the employee in question.

In the case of Allette v Scarsdale Grange Nursing Home Ltd, a contractual requirement to be vaccinated was considered and held to be lawful. However, this was an employment tribunal case, and therefore not binding on other courts, and the decision was made at a point that mandatory vaccinations had still not been introduced into the law (which have now been repealed). 

How can I encourage my employees to have the vaccine?

As noted earlier, encouraging employees to have the vaccine will be the most appropriate stance for the vast majority of employers.

You may consider encouraging employees to have the vaccine in the following ways:

  • providing access to accurate and credible information about the vaccine to allow employees to make an informed decision about the vaccine, and reminding them to check the source of any information they may seek for themselves to guard against any misinformation
  • having senior management pledge to have the vaccine when it becomes available to them (but avoiding placing pressure on those staff to have the vaccine)
  • permitting time off during working hours for attendance at appointments
  • paying employees for the time off to attend an appointment
  • putting enhanced provisions in place for employees who experience any sickness caused by the vaccine.

Having a policy addressing vaccine issues will be the most appropriate vehicle to let your employees know your stance on them.

Can my clinically vulnerable employees return to work once vaccinated?

Further guidance is awaited on those groups who are medically unable to have the vaccine. However, there is no guidance currently that prevents clinically vulnerable employees from attending a workplace, as long as appropriate covid-safe measures are in place.

Shielding was paused in England and Wales from 1 April 2021 and from 26 April 2021 in Scotland.  On 15 September 2021, the government announced it will be ended permanently, and moving forwards centralised guidance on clinically vulnerable people will not be issued.

 

Employers should consider how to support an employee who is diagnosed with “long-COVID”. Acas guidance states that long-COVID should be treated by an employer in the same way as it would treat other medical conditions.

Common symptoms include:

  • extreme tiredness (fatigue)
  • shortness of breath
  • chest pain or tightness
  • problems with memory and concentration ("brain fog")
  • difficulty sleeping (insomnia)
  • heart palpitations
  • dizziness
  • pins and needles
  • joint pain
  • depression and anxiety
  • tinnitus, earaches
  • feeling sick, diarrhoea, stomach aches, loss of appetite
  • a high temperature, cough, headaches, sore throat, changes to sense of smell or taste
  • rashes.

Occupational health assessments are recommended in order to identify exactly how an employee is affected and how it affects their work. When an employee is ready to come back to work, employers could consider a phased return and make reasonable adjustments to the employee’s role to remove the barriers that long-COVID creates.

There is a duty to make reasonable adjustments for employees with a disability. A disability is a physical or mental impairment that has a 'substantial and long-term' negative effect on a person's ability to do normal day-to-day activities.

'Long term' means the impairment has lasted or will last for at least 12 months or can come and go or is likely to last for the rest of the person's life. An employee with long-COVID would be covered by anti-discrimination provided these tests could be met. However, Acas encourages employers to concentrate on the adjustments that can be made to support the employee rather than determining whether or not it would fall into the ‘disability’ category.

Long COVID has been found to more severely affect:

  • older people
  • ethnic minorities
  • women

Gender pay gap reporting

The Government suspended the obligation to report on the gender pay gap in 2020 due to the coronavirus. Companies with 250 or more employees are required to submit their gender pay gap information once a year; for the private sector, the deadline is 4 April; for public sector, it is 30 March. In recognition of the extra pressure placed on businesses at this time, there was no requirement to publish the data in 2020.

The requirement to publish data returned for 2021. This means reporting on data from the snapshot date of 5 April 2020 (31 March 2020 for public sector) was again required. The EHRC delayed enforcement of gender pay gap publications, for both private and public companies, until 5 October 2021; this effectively gave employers a further six months past the usual deadlines for reporting data.

The Government confirmed the following in relation to 2021 reports:

  • employees who were on furlough on the snapshot date are counted when determining whether the 250 employee threshold is met
  • employees on furlough on the snapshot date are not to be included in calculations on hourly pay
  • but employees on furlough on the snapshot date are to be included in calculations on bonuses.

The same is in place for 2022 reporting, as the Job Retention scheme was in operation on the snapshot date in 2021.

Because employees who are not in receipt of full pay on the snapshot date are excluded from the reporting pool for calculations on hourly pay, the pool may be a lot smaller than usual due to the fact that a significant number of employees in the UK would have been on furlough on the snapshot date. Employers may have found that the resulting gender pay gap in hourly pay is quite different from previous years. Employers should therefore use the accompanying narrative to explain any impact on the results caused by coronavirus.

The government has confirmed that gender pay gap reporting will return to normal from 2022.

This means that reporting deadlines are 'back to normal' i.e. 30 March 2022 for public sector organisations and by 4 April 2022 for private sector businesses.

Annual leave

The laws on annual leave have been amended to allow more flexibility on the carry over of leave. Previously, 4 weeks of annual leave was exclusive to the year in which it was accrued, meaning it could not be carried over except where it could not be taken because of sickness absence or annual leave. The remaining 1.6 weeks of leave could be carried over to the next leave year subject to the employer’s agreement.

The restriction on carrying over the 4 weeks of leave has been lifted for circumstances where it was not reasonably practicable for a worker to take some or all of their leave as a result of the effects of coronavirus (including on the worker, the employer or the wider economy or society). Workers now have the right to carry forward leave accrued in 2020 year to the next two leave years. The carry over of the 1.6 weeks’ leave is still subject to agreement from the employer.

The rules on pay in lieu of accrued holiday on termination of employment have also been amended. Pay in lieu should include an element reflecting leave which was carried over in this way but remains untaken at termination.

Modern slavery statements

The Government has relaxed the rules around compliance with modern slavery requirements. An updated Government guide makes clear that businesses must continue their activity to identify and address risks of modern slavery in their operations and supply chains but recognises the challenges presented by the virus in publishing their statement within the usual timeframe. It notes ‘reduced staff capacity’ as one such challenge. It states that “businesses which need to delay the publication of their modern slavery statement by up to 6 months due to coronavirus-related pressures will not be penalised”. The reason for any delay to the publication should be set out in the delayed statement.

Statements are required from all businesses who have an annual turnover of at least £36 million, and must normally be published within 6 months of the end of the company’s financial year.

The UK Government initially launched the Coronavirus Statutory Sick Pay Rebate Scheme (SSPRS) in March 2020 to help employers with recovery from the pandemic. This “old” scheme ended on 30 September 2021. The portal for submitting claims under the old scheme closed on 31 December 2021 for any absences up to 30 September 2021.

Employers will not be able to claim for the period from 1 October – 20 December 2021 inclusive as no scheme was in operation during this time. 

The reintroduction of the SSPRS was announced by Rishi Sunak on 21 December 2021 as part of a £1bn support package for businesses impacted by the Omicron variant of Covid-19.

The re-opening of the Scheme covered Covid-related sickness absences occurring from 21 December 2021. The portal for reclaiming is now live.

As part of the governments 'living with Covid' legal changes, the scheme closed on 17 March 2022 and employers had to submit all claims under this scheme by 24 March 2022.  

Who could use the rebate scheme? 

Businesses eligible to use the Scheme are those which:

  • are UK-based
  • had fewer than 250 employees as of 30 November 2021
  • had a PAYE payroll system as of 30 November 2021
  • have already paid their employees’ Covid-related SSP

Connected companies and charities can also use the scheme if their total combined number of PAYE employees was fewer than 250 on 30 November 2021.

Specific eligibility criteria apply to the payment of SSP, including minimum average earnings of £120 per week (increasing to £123 on 6 April 2022) and the requirement to be sick/self-isolating for a minimum period of 4 calendar days (the qualifying days).

The Scheme will only cover SSP paid for absences due to coronavirus. For example, for employees who tested positive for Covid or were instructed to self-isolate. It does not allow recovery for any SSP paid for non-coronavirus related absence.

The Scheme covers all types of employment contracts, including:

  • full-time
  • part-time
  • employees on agency contracts
  • flexible or zero-hour contracts
  • fixed term contracts (until the date their contract ends).

A rebate can be claimed for both existing and former employees.

How much could be claimed back? 

The maximum to be claimed is two weeks’ SSP, from the first qualifying day, per employee. You can make a claim under the new scheme for an employee who was previously claimed for under the old scheme. The two-week time limit essentially ‘resets’ in this regard.

You can make more than one claim per employee, provided that claims are not for longer than two weeks in total.

If you pay contractual sick pay in excess of the SSP rate, you will only be able to recover up to the weekly rate of SSP paid. The weekly rate of SSP, since April 2021, is £96.35. From 6 April 2022, this is increasing to £99.35 per week.

How to make a claim

An online reclaims portal was open until 24 March 2022 which could be accessed through the Government website.

To use the service, you needed the Government Gateway user ID you received when you registered for PAYE Online.

Agents who are authorised to do PAYE online for you could make a claim on your behalf.

You must have paid the sick pay to your employees before you can claim it back.

What information was needed to make a claim? 

  • your employer PAYE scheme reference number
  • a contact name and phone number in case HMRC need to contact you about your claim
  • UK bank or building society details (only provide bank account details where a Bacs payment can be accepted) including:

o   bank or building society account number (and roll number if it has one)

o   sort code

o   name on the account

o   your address linked to your bank or building society account

  • the total amount of coronavirus SSP you have paid to your employees for the claim period
  • the number of employees you are claiming for
  • the start date and end date of the claim period.

The start date of your claim is the start date of the earliest pay period you’re claiming for. The end date of your claim is the end date of the most recent pay period you’re claiming. You can only claim for SSP paid in arrears.

Employees do not have to give you a doctor’s fit note for you to make a claim. But you can ask them to give you:

  • an isolation note from NHS 111 if they are self-isolating and cannot work because of coronavirus
  • notification that they must self-isolate from NHS Test and Trace (England)/NHS Test and Protect (Scotland)/NHS Wales Test, Trace, Protect Service
  • official email or text confirmation from NHS Test and Trace (or equivalent service) of a positive Covid test result – this can be following a PCR test or self-upload of a lateral flow test.

The Scheme allows you to claim for multiple employees across multiple pay periods at the same time.

Will HMRC conduct any checks on the claim? 

HMRC will check claims and take appropriate action to withhold or recover payments found to be dishonest or inaccurate. Where employers knowingly and deliberately provide false or misleading information to benefit from the claim, they will face penalties of up to £3000.

How long did it take to receive the money? 

You should have received the rebate within six working days. HMRC asked that you did not contact them until more than 10 working days has passed since you made the claim if you had not received the rebate nor heard from HMRC about the claim.

What records should be kept? 

You must keep the following records for three years after the date you receive the payment for your claim:

  • the dates the employee was off sick
  • which of those dates were qualifying days
  • the reason they said they were off work, whether this be that they had symptoms, someone they lived with had symptoms, they returned a positive Covid test or were instructed to self-isolate
  • the employee’s National Insurance number.

This applies to England, Scotland and Wales, unless stated otherwise. 

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 sanitizing 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.

In England, government guidance recommends the following actions to reduce the spread of respiratory infections:

  • Encourage and enable vaccination
  • Let fresh air in
  • Maintain a clean workplace

If the workplace poses a serious and imminent threat to an employee’s health, under sections 44 and 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.

Reasonable belief

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.

In X v Y, it was argued that fear of catching covid was a "belief" protected under the Equality Act 2010, and therefore the employers refusal to pay the claimant on their refusal to attend the office was discriminatory. The claimant argued that they had ‘reasonable and justifiable health and safety concerns about the workplace surrounding Covid-19’ especially because their partner was ‘at high risk of getting seriously unwell from Covid-19’.

Whilst only Employment Tribunal, and therefore not binding on other courts, this case is indicative that the courts will take the view that fear of covid is not a "belief" but instead a reaction to a threat. It was not doubted that this was likely to be a widely held opinion, but that did not make it sufficient to be a protected belief. 

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.

Possible adjustments 

Employers should talk to anyone who has concerns about coming into the workplace and make adjustments where possible. 

Employees and workers are protected against dismissal or detriment if they have a reasonable belief that their workplace poses a serious and imminent threat of danger. Sharing the risk assessment and being transparent with all of the modifications made will help to dispel a reasonable belief. If the employee still refuses to come to work, this may be dealt with through the disciplinary procedure. Alternatively, you may decide to offer a period of paid annual leave or unpaid leave.

In Preen v Coolink Ltd and Mullins, an employee refused to attend the workplace due to fear of serious or imminent danger from covid. The Employment Tribunal had to consider if ‘something more’ than merely the existence of covid was required for an employees refusal to attend work to be reasonable and protected from dismissal. It also had to decide if the employer’s actions in dismissing rather than discussing the matter with the employee were fair.

Whilst the ET acknowledged that covid is dangerous, it did not find that Preen reasonably believed that by attending work he or others would be in serious and imminent circumstances of danger. Covid doesn't automatically create circumstances of serious and imminent danger. ‘Something more' is need for this to be the case, such as unsafe working practices or medical vulnerability. In this case, sensible precautions had been implemented including providing masks, hand sanitiser and a COVID health and safety procedure.

In X v Y, it was argued that fear of catching covid was a "belief" protected under the Equality Act 2010, and therefore the employers refusal to pay the claimant on their refusal to attend the office was discriminatory. The claimant argued that they had ‘reasonable and justifiable health and safety concerns about the workplace surrounding Covid-19’ especially because their partner was ‘at high risk of getting seriously unwell from Covid-19’.

Whilst only Employment Tribunal, and therefore not binding on other courts, this case is indicative that the courts will take the view that fear of covid is not a "belief" but instead a reaction to a threat. It was not doubted that this was likely to be a widely held opinion, but that did not make it sufficient to be a protected belief. 

Legislation to revoke previously enacted laws on mandatory vaccination came into force on 15 March 2022. There is now no legally mandated requirement to be vaccinated against Covid in the UK. We wait to see if a regulatory requirement will be created. 

The below information remains for background information only. 

Template letters to use to manage mandatory vaccines in care homes are available in our Coronavirus toolkit

When the Covid vaccine was first introduced at the end of 2020, the government made the decision not to make the take up of the vaccine mandatory. Some employers have made the decision to contractually require their workforce to have the vaccine whilst others are taking a position of encouragement by permitting paid time off to attend the appointment etc.  

Some care home employers in England have had this decision taken out of their hands.

The Social Care Working Group of SAGE advised that an uptake rate of 80% in staff and 90% in residents in each individual care home setting would be needed to provide a minimum level of protection against outbreaks of Covid.

As of 4 April 2021, 78.9% of all eligible workers in all older adult care homes had received at least their first vaccination. However, this masks significant variation at a regional, local and individual care home level. As of 8 April 2021, 89 local authorities had a staff vaccination rate under 80%, including all 32 London boroughs, while 27 local authorities had a staff vaccination rate under 70%.

As a result, the Government believed there was a strong case for introducing a new requirement in order to make very high-risk environments as safe from the effects of Covid as possible.

The requirement has been set out in the Health and Social Care Act 2008 (Regulated Activities) (Amendment) (Coronavirus) Regulations 2021.

The government launched a further public consultation into making Covid and flu vaccination a condition of deployment in wider health and social care settings in England. The outcome confirmed flu vaccines will not be introduced for now, but the decision will be kept under review and could be introduced at a later date if needed. Covid vaccination will be mandated for all frontline health and social care workers who undertake a CQC-regulated activity and have direct, face-to-face contact with service users. It is expected these regulations will come into force in April 2022, subject to parliamentary approval.

Have the regulations since been scrapped? 

In a statement on 31 January 2022, the Health Secretary Sajid Javid announced that he no longer believed it proportionate to mandate vaccination through statute. This decision was based on the severe staff shortages the regulations would cause, as well as the main Covid variant in the UK no longer being Delta; Omicron has been found to halve the numbers requiring emergency care or hospital admission, with lesser symptoms and side effects. As such, a public consultation opened on 9 February 2022 seeking responses over proposals to revoke the regulations making vaccination a condition of deployment (VCOD) for health and social care workers in England (including care home staff). The consultation is open for 1 week until 16 February 2022, after which a parliamentary vote is set to take place, to decide whether the regulations should be revoked, amended or remain as they are.

Employers are advised to pause any formal processes until the government confirms the outcome of the consultation.

The below information is for guidance purposes only and is subject to change, in line with the government’s confirmation of the removal of the regulations. It is not recommended to continue with formal processes relating to the vaccine mandate.

Which care homes are affected? 

Deployment will be conditional upon having the vaccine in care homes:

·         in England

·         which are registered with the CQC

·         where residents require nursing or personal care.

The respective governments in Scotland and Wales have confirmed that care home staff in those nations will not be legally required to have the vaccine.

The government originally planned the new law to apply to care homes in England with one resident over the age of 65. The scope has since been redesigned as per the above.

Who will be required to have the vaccine?

Guidance states that anyone who needs to enter the building to work in a care home which meets the definition above needs to have the vaccine, unless they have an exemption. This means the following have to have the vaccine as a condition of deployment in an affected care home:

·         workers employed directly by the care home or care home provider

·         either full-time or part-time

·         those employed by an agency and deployed by the care home

·         volunteers deployed in the care home.

Those who are under the age of 18 are not affected by the requirement. However, they will come within scope when they turn 18.

The requirement applies to everyone working in a care home providing accommodation for persons who require the regulated activity of nursing or personal care. The condition applies regardless of role, with the exception of those with medical exemptions.

Those coming into care homes to do other work, for example healthcare workers, tradespeople, hairdressers and beauticians, and CQC inspectors also have to follow the new regulations, unless they have a medical exemption. Those working in the home on “urgent maintenance work” are exempt.

The requirement does not apply to people who only work in the outdoor surrounding grounds of care home premises.

There are also exceptions for care home residents, those visiting family and friends in the home, under 18s and emergency services.

Although the legal requirement to have the vaccine applies only to care homes, the inclusion of other healthcare workers, tradespeople, hairdressers etc will create an indirect legal requirement for those businesses too. For example, a maintenance company, or a beautician business, who has a contract with a local care home to provide its services within the care home, will need to require its existing staff and new staff to have the vaccine in order to continue to fulfil that contractual requirement.

When do care home workers have to be vaccinated by?

The law came into force on 11 November 2021. By then, all persons within scope of the Regulations must have been fully vaccinated to work in a care home, unless they are medically exempt or have submitted a temporary self-certificate of exemption by 24 December 2021.

Who is medically exempt from having the vaccine? 

Some individuals are unable to be vaccinated for medical reasons. In these situations, employees are able to apply for a permanent medical exemption. This includes:  

·         people receiving end of life care where vaccination is not in the person’s best interests

·         people with learning disabilities or autistic individuals, or people with a combination of impairments where vaccination cannot be provided through reasonable adjustments

·         a person with severe allergies to all currently available vaccines

·         those who have had an adverse reaction to the first dose (for example, myocarditis)

Time-limited exemptions are available for those with short-term medical conditions (for example, people receiving hospital care or receiving medication which may interact with the vaccination).

Pregnant workers also qualify for a time-limited exemption, which they can use if they wish. The exemption will not be permanent; it will last for 16 weeks after the birth to give the individual time to become fully vaccinated. They will not, however, need to follow the same process as others to prove their exemption. Instead, they can use their MATB1 form as evidence of their short-term exemption.

There will be no exemption for those who hold a religious belief and refuse the vaccine on those grounds.

How do employees get a temporary exemption? 

Care home workers are able to provide an immediate self-certification for a temporary exemption from the Covid vaccine. Care home providers should strongly encourage staff who wish to self-certify as exempt to use the official self-exemption form available on the government website and to take government guidance into account when considering what evidence is satisfactory. Workers do not need to get medical proof for the temporary exemption to apply.

The government previously outlined that workers could self-certify a temporary medical exemption until 24 December 2021. Failure to provide official evidence of a permanent medical exemption by this date must have led to their redeployment to a role outside of the care home or dismissal.

However, on 8 December 2021, the government extended the deadline date for providing official evidence of permanent medical exemption to 31 March 2022. This means self-certification forms for temporary exemption will continue to be valid until 31 March 2022, so long as they have been received before 24 December 2021.

From 1 April 2022, workers will either need to show proof of a formal medical exemption via the NHS Covid Pass Service or be fully vaccinated against Covid, in order to comply with the regulation and continue working in a CQC-regulated care home. Employees should use the time between now and then to obtain official medical exemption.

how do employees apply for a permanent exemption? 

Care home workers who wish to apply for a formal medical exemption should do so as soon as possible and inform their employer of the outcome of their application once they receive it.

To apply for a permanent medical exemption, employees should phone the NHS Covid Pass service on 119 and ask for an application form. They will need to give their name, date of birth, NHS number (if known) and the name of their GP/clinician. If they are eligible, they will receive an application form by post. This form should be completed by the employee and submitted to their GP or relevant clinician for review. Employees will automatically be sent the results of their application by post 2-3 weeks after applying.

If notification letters are not received within 2 to 3 weeks for these individuals, they are encouraged to call 119.

The decision is final and cannot be appealed.

How do employees evidence their exemption or vaccination status? 

If employees get a permanent medical exemption, they can use the NHS Covid Pass to show evidence of this. The Pass can be accessed digitally on the NHS app, through the NHS website or by requesting a written letter.

The NHS Covid Pass will look and work the same for people with medical exemptions as it will for people who are fully vaccinated. The pass will not show that someone has a medical exemption. Employers only need to receive the pass to allow their staff to keep working in the care home, regardless of whether they got it due to vaccination or exemption. 

As set out above, pregnant women who wish to use the exemption can use their MATB1 form as proof of short-term exemption.

The rules will allow a service provider to process information provided by a person wanting to prove their vaccination status, in accordance with the Data Protection Act 2018.

What happens if a permanent medical exemption is denied? 

There is no clear government guidance confirming what should happen with employees who are refused a permanent exemption.

Employers can choose to allow staff to continue working until 31 March 2022 and use this time to assess alternative positions the person could do and prepare to hire replacements into leavers’ positions. But, they must be aware that there may be enforcement from the CQC.

Alternatively, employers can choose to dismiss/redeploy staff as soon as they receive information that a permanent medical exemption was refused. In such situations, employers must be aware of the risk that employees will ask for payment to cover loss of wages from the dismissal date until 31 March 2022. A fair process must also be followed before redeployment/dismissal so practical consideration should be given to how the employer will hold a meeting with their employee and what will happen with their notice period. Under this approach, workers will be unable to enter the care home to attend a meeting so off-site or virtual arrangements may need to be made.

Can I refuse to employ someone before 31 March 2022 because they can't provide the necessary evidence of vaccination or exemption?

Employers taking on staff in advance of the 31 March 2022 deadline may want to make a recruitment decision based on vaccination status. Denying a job offer at that stage because evidence of full vaccination or permanent exemption cannot be provided may result in the loss of otherwise good additions to the team, especially where the individual in planning on meeting the evidence requirements by the government’s deadline date.

However, employers can ask new recruits to submit a self-certification form for temporary exemption, as a conditional requirement of their job offer. Job offers can be withdrawn for those who fail to do so.

Job applicants should be made aware of the impending legal requirement and that from 1 April 2022, anyone working in the care home, new recruits or otherwise, who cannot produce the necessary evidence will have to be redeployed or dismissed.

What happens if employees don't have the vaccine by the deadline?

Unless the employee can provide official evidence of permanent medical exemption by 31 March 2022, anyone working in a care home will be under a legal requirement to have had both doses of the Covid vaccine.

Continuing to employ someone who contravenes this requirement will be unlawful.

Employers will need to redeploy an employee outside of the care home who would otherwise be working in breach of the vaccine requirement. If redeployment is not possible, the employee will need to be dismissed.

What might my redeployment options be?

It is clear that redeployment – i.e. transferring the employee into another role – will need to be to a role outside of the care home. This rules out moving the employee from a direct care role to a role in the care home’s kitchen, for example.

Care home employers should not delay in exploring whether there are any roles that employees can be moved into and discuss this with employees at an early stage.

When considering redeployment, relevant factors to take into account include, for example the employee’s skills, experience, qualifications and whether the employee could perform the role with some training.

It is for the employee to decide whether or not they wish to accept the alternative role.  It is advisable to communicate the details of the alternative role in writing specifying sufficient detail of the position to allow the employee to make an informed decision. There is no requirement that the alternative employment must be the same status or pay as the employee’s previous role, (subject to any contractual provisions to the contrary in the employee’s current contract or the employer’s policies and procedures). The requirement is on the employer to consider alternative roles and avoid making any assumptions as to whether the employee would find such roles acceptable.  A failure to fully consider and explore alternative employment is likely to make any subsequent dismissal for not providing evidence that the employee is fully vaccinated or medically exempt unfair.

If there is more than one employee that may be suitable for an alternative role, the role should be discussed with all employees that may be suitable and any employees that are interested in the role should be invited to apply for it or submit expressions of interest. If the employer receives more applications or expressions of interest than vacancies, a fair selection process will need to be implemented.

Care homes should keep in mind the government’s plans to introduce similar mandatory vaccine regulations in April 2022 to wider health and social care settings. As such, redeployment to a domiciliary care function, for example, may not be feasible if the employee cannot provide evidence of full vaccination or medical exemption.

What process do I use to dismiss unvaccinated employees who are not medically exempt? 

Rules on fair dismissals will still apply in these circumstances. This means that an employment tribunal can still find that a non-medically exempt employee, dismissed for being in breach of the requirement to have the vaccine, was unfairly dismissed. This is likely to occur when the procedure used to dismiss the employee was defective.

The first step is to inform your employees about the legal requirement and that they have been identified as falling within its scope. It is important that employees are made aware that their failure to provide necessary evidence will result in their redeployment or their dismissal.

You should ask for evidence that the employee:

·         is fully vaccinated

·         has received the first dose and has the second dose booked

·         has the first dose and/or second booked

·         is medically exempt (including temporary exemptions)

You can set your own deadline for when employees need to provide evidence by so that you can keep an element of control over the situation. However, employees effectively had until 11 November 2021 to provide evidence of vaccination and, where medical exemptions apply, have until 24 December 2021 to submit their self-certification form and until 31 March 2022 to provide official evidence of a permanent medical exemption.

If an employee does not provide evidence by your deadline, you should invite them to a formal meeting to find out why and discuss the result of continued failure to provide evidence i.e. redeployment options or dismissal. Your subsequent actions will depend on the employee’s response, but a further meeting will also be needed to confirm redeployment or dismissal after the employee has been given a further opportunity to provide evidence.

In some circumstances, it may be appropriate to confirm dismissal in advance of the introduction of the law with a notice period set to expire on 31 March 2022. Where this happens, there will be a need to continually monitor the situation and withdraw the notice of dismissal in the event that satisfactory evidence is provided.

Notice pay is normally payable when dismissing an employee in these circumstances even where employment expires after 31 March 2022, meaning the employee is unable to work for a period.

What happens at the end of the exemption period? 

Throughout the temporary self-certification exemption period, i.e. until 31 March 2022, individuals are expected to follow the process from the NHS Covid Pass system to apply for formal medical exemption. If they are given this, they can continue working in the care home as usual, provided the are equipped with adequate protection measures such as PPE, masks, hand sanitisation etc.

If the individual is not eligible for medical exemption, you can follow the same process outlined above to consider redeployment opportunities and fairly dismiss where appropriate.  

What happens if I think an employee is providing false information about their temporary self-certification exemption?

Disciplinary action can be taken against workers who provide false information about their temporary self-certification exemption. However, it might be difficult to prove that the person did not reasonably believe that they would meet the conditions for medical exemption.

You will need to follow a full disciplinary procedure before taking any action against the employee. But, keep in mind that doing so might risk claims of unfair dismissal, constructive dismissal and/or discrimination claims. It’s important to pull together as much evidence and information as possible to show that the worker falsely self-certified their exemption. Dismissal might not be reasonable in these situations so consider what other action you can fairly take, in line with your usual disciplinary procedure.

So I can't dismiss those who are medically exempt? 

Those who are medically exempt are not required to be fully vaccinated so there would be no apparent reason to dismiss them.

You will need to continue to consider how to protect the employee from exposure to Covid-19 when undertaking their role. This will also apply to those who are temporarily medically exempt.

What happens if an employee only received one dose of the vaccine by 11 November 2021?

Your request for employees to provide evidence of their current vaccine status should help to highlight those who intend to get the vaccine, have had the first dose but were not in a position to have the second until after 11 November 2021. In these circumstances, you should consider how the interim period can be managed. For example, you could agree that the employee takes annual leave; you could enforce annual leave provided the correct period of notice is given; agree a period of unpaid leave etc.

I am worried that I will have staff shortages if I lose some staff because of this requirement, what can I do? 

The government is looking to deliver another National Recruitment Campaign in order to attract people into the sector and promote adult social care careers.

It is also working with Skills for Care to ensure that resources such as guidance and best practice are available to support providers and local authorities with capacity and workforce planning, recruitment and well-being. Skills for Care will also provide local and national workforce support to local authorities and employers. The government also plans to work with local authorities to ensure they are contingency planning and accessing additional support, as well as promoting joint working across a region to assist with targeted recruitment.

What is the government doing to address vaccine hesitancy? 

The government recognises concerns that certain groups within the workforce may be more vaccine-hesitant and therefore could be negatively impacted by the vaccine requirement. It is providing tailored support to key groups in the workforce. This is designed to build confidence among:

·         women of childbearing age. It is working with clinical experts to address their questions and concerns about the vaccine, including concerns around pregnancy and fertility, for example these issues were addressed during a webinar for social care workers on 21 May 2021, hosted by Minister Zahawi

·         people from Black, Asian and Minority Ethnic groups who may be hesitant about taking the vaccine. It is delivering tailored communications and working in partnership with trusted community leaders

·         people with concerns about the vaccine, based on religion or belief, including, for example, by sharing information to tackle common concerns about vaccine ingredients or the safety of vaccines.

What should affected employers be doing now? 

·         Care home employers may have already begun to collect evidence that their employees have had one or both doses of the vaccine, or a medical exemption. They should make sure that this evidence is of sufficient quality; specifically, that it is shown through the NHS Covid Pass. Vaccine or appointment cards will not be acceptable.

·         Make sure employees are informed about the government’s confirmed plans to require them to have the vaccine and the potential outcomes if they do not have it by the deadline and are not medically exempt

·         Re-enforce any exercise you have undertaken to raise awareness of the benefits of the vaccine

·         Remind employees of your current policy on permitting time off work for vaccine appointments and if you do not already, consider offering paid time off for the appointment if you are experiencing some hesitancy

·         Consider any potential avenues for redeployment for employees who choose not to have had the vaccine by the government’s deadline

·         Consider how you will continue to mitigate both exposure to and transmission of COVID for employees who are medically exempt

·         Contact the maintenance company, or a local hairdressers, for example, that you have a contract with to provide services inside your care home, to ensure that they are aware of the requirement that any worker they send to carry out work will have to be vaccinated

·         Prepare for undertaking dismissal procedures of those employees who would otherwise be breaching the requirement to have the vaccine.

·         Review your recruitment procedures to ensure that new starters have had the vaccine, or are medically exempt, once the requirement comes into place.

 

 

 

Legislation to revoke previously enacted laws on mandatory vaccination came into force on 15 March 2022. There is now no legally mandated requirement to be vaccinated against Covid in the UK. We wait to see if a regulatory requirement will be created. 

The below information remains for background information only. 

In July 2021, the government introduced a new legal requirement that anyone who is deployed to work in a CQC regulated care home in England which provides nursing or personal care, must be fully vaccinated against COVID, unless an exemption applied.

The requirement is set out in the Health and Social Care Act 2008 (Regulated Activities) (Amendment) (Coronavirus) Regulations 2021 and came into force on November 11 2021. Affected workers who did not provide evidence of vaccination or exemption by this date must have been redeployed to a role outside the care home or dismissed. Those who provided self-certification evidence for a temporary exemption have until 24 December 2021 to provide evidence of permanent medical exemption, or vaccination.

Following this, the government launched a public consultation on making the COVID and flu vaccine a condition of deployment in health and wider social care setting in England.

The consultation closed on 22 October 2021 and the government published its response on 9 November 2021. In this, they confirm their intentions to mandate COVID vaccination to wider settings.

As of October 2021, around 126,000 people within affected sectors remain unvaccinated. This makes up 5.4% of total workers. The hope is that by introducing new regulations there will be an increase in vaccination levels in health and care workers, to protect all those in the health and care service, a large number of whom are vulnerable, as well as the wider community. It is also hoped to reduce COVID-related sickness absences for these workers and the knock-on impact this has on organisations.

What was the outcome of the consultation?

The government confirmed two main outcomes of its public consultation into making vaccination a condition of deployment in the health and wider social care sector in England:

The flu vaccination will not be a legal requirement. However, this will be kept under review and could be introduced at a later date if needed.

Covid vaccination will be a legal requirement for frontline clinical and non-clinical workers, who have direct, face-to-face contact with service users.

Have the regulations since been scrapped? 

In a statement on 31 January 2022, the Health Secretary Sajid Javid announced that he no longer believed it proportionate to mandate vaccination through statute. This decision was based on the severe staff shortages the regulations would cause, as well as the main Covid variant in the UK no longer being Delta; Omicron has been found to halve the numbers requiring emergency care or hospital admission, with lesser symptoms and side effects. As such, a public consultation opened on 9 February 2022 seeking responses over proposals to revoke the regulations making vaccination a condition of deployment (VCOD) for health and social care workers in England (including care home staff). The consultation is open for 1 week until 16 February 2022, after which a parliamentary vote is set to take place, to decide whether the regulations should be revoked, amended or remain as they are.

Employers are advised to pause any formal processes until the government confirms the outcome of the consultation.

The below information is for guidance purposes only and is subject to change, in line with the government’s confirmation of the removal of the regulations. It is not recommended to continue with formal processes relating to the vaccine mandate.

Who will be required to have the vaccine?

Vaccination will be a condition of deployment to all frontline workers who provide face-to-face care for patients and clients. This was defined as:

those deployed to undertake direct treatment or personal care as part of a Care Quality Commission (CQC) regulated activity.

non-clinical workers not directly involved in patient care but who may still have direct, face-to-face contact with patients, such as receptionists, ward clerks, porters or cleaners.

The requirements will apply to CQC-regulated activities in both the public sector (NHS) and independent sector in England.

Agency workers, volunteers, trainees and contractors are all included within the scope of the requirements.

When will the regulations come into force?

The Regulations will come into force on 1 April 2022, unless repealed following government consultation opened 1 February 2022. 

Affected workers have a 12-week grace period to provide evidence of vaccination or exemption. This grace period began on 6 January 2022 and runs to 31 March 2022. 

What settings does this impact?

The Regulations aim to protect vulnerable people and individual workers in health and social care settings, including hospitals, GP practices, and where care is delivered in a person’s home.

Examples of CQC regulated activities which may be affected include personal care; treatment of disease, disorder or injury; diagnostic and screening procedures; termination of pregnancies; management of supply of blood; mental health assessments; and transport services.

The government outlined that some ancillary staff will be mandated to get the vaccine (e.g. receptionists, porters etc.) but we await further guidance to understand its full extent and to clearly establish the exact settings and roles which are affected.

Are there any settings which are not included?

Yes, where the provision of a CQC-regulated activity is part of a Shared Lives agreement the vaccination requirements will not apply. This is when the care recipient lives in the home of the carer.

It will not apply to friends or family members who visit people in health and social care settings or a person’s home. It will also not apply to those in a role of “essential care giver.” This is anyone who has agreed with the registered person that they will visit regularly and provide personal care.

Similarly, the Regulations will not be extended to CQC-regulated activities carried on in residential or inpatient settings. For example, residential recovery services for drugs and alcohol, hospices and registered extra care and supported living services.

Will there be any exemptions?

Some individuals will be exempt from the regulations:

·         those who are under the age of 18

·         those who are clinically exempt from COVD vaccination (more details below)

·         those who are taking part, or have previously taken part, in a clinical trial for a COVID vaccine

·         those who do not have direct, face to face contact with a service user, for example, those providing care remotely, such as through triage or telephone consultations or managerial staff working in sites away from patient areas.

There will be no exemption for those who refuse vaccination due to religious beliefs.

What is covered under medical exemption?

Based on the processes previously implemented for care home workers, some individuals are unable to be vaccinated for medical reasons. In these situations, staff are able to apply for a permanent medical exemption. This includes:  

  • people receiving end of life care where vaccination is not in the person’s best interests
  • people with learning disabilities or autistic individuals, or people with a combination of impairments where vaccination cannot be provided through reasonable adjustments
  • a person with severe allergies to all currently available vaccines
  • those who have had an adverse reaction to the first dose (for example, myocarditis)

Short-term exemptions will be available for those with short-term medical conditions (for example, people receiving treatment or medication which may interact with the vaccine, or those who contracted Covid so had to wait 28 days before getting the vaccine) and as an option that some pregnant women may choose to take.

For pregnant women, the exemption expires 16 weeks post-partum. This will allow them to become fully vaccinated after birth.

How do individuals apply for a medical exemption?

To apply for a permanent medical exemption, staff should phone the NHS Covid Pass service on 119 and ask for an application form. They will need to give their name, date of birth, NHS number (if known) and the name of their GP/clinician. If they are eligible, they will receive an application form by post. This form should be completed by the individual and submitted to their GP or relevant clinician for review. Individuals will automatically be sent the results of their application by post 2-3 weeks after applying. The decision is final and cannot be appealed.

Pregnant women who choose to use the medical exemption can use their MATB1 form as evidence of their exemption. They do not need to phone the NHS COVID Pass Service.

How do employees evidence their medical exemption or vaccination status?

Vaccination status will be evidenced through the NHS COVID App, NHS Webpage or NHS Letter; EU Digital COVID Certificate; Centers for Disease Control and Prevention vaccination card; or a certificate in English, French or Spanish issued by the competent health authority. Pregnant women can use their MATB1 form as evidence.

Those who are given a permanent medical exemption, can use the NHS Covid Pass, either digitally or with an NHS letter to show evidence of this.

The NHS Covid Pass will look and work the same for people with medical exemptions as it will for people who are fully vaccinated. The pass will not show that someone has a medical exemption. Employers only need to receive the Pass to allow their staff to continue in their role regardless of whether they got it due to vaccination or exemption. 

The rules will allow a service provider to process information provided by a person wanting to prove their vaccination status, in accordance with the Data Protection Act 2018.

Do all new starters have to have the vaccine?

Yes, all new starters must be Covid vaccinated, unless an exemption applies. However, there will be a temporary exemption period to allow those joining the business to start their role without being fully vaccinated. This applies as follows:

Those who join in the government’s 12-week grace period from when the new laws are approved must have had at least one dose of the vaccine by their start date and have their second dose no later than 10 weeks from the first dose.

Those who join for the first time on or after the date the regulations come into force must have had one dose at least 21 days before their first day of deployment and their second dose no later than 10 weeks from the date of the first dose.

The same principle will apply to individuals who changed roles internally and their new job requires vaccination, but their original role didn’t.

Employers must make sure they are aware of the date (10 weeks after the first dose) of full vaccination and follow up with relevant individuals to confirm evidence of this.

What about workers who have been vaccinated abroad?

Health and care workers will need to have received a full course of a COVID vaccination in line with the UK Health Security Agency (UKHSA) guidance, in order to continue to be deployed. An authorised vaccine is two doses of either the Oxford/AstraZeneca, Pfizer BioNTech, Moderna or Janssen vaccine. Boosters will not be included in what is considered a full course of vaccination. 

Those who have been vaccinated abroad must provide evidence of vaccination status and, where necessary, have a top-up dose with a UK authorised vaccine, consistent with the UKHSA’s guidance.

What happens if workers don’t have the vaccine by the deadline?

Unless the employee is exempt, anyone working in an affected setting will be under a legal requirement to be fully vaccinated. Continuing to deploy an existing employee who contravenes the requirement is likely to be unlawful.

Employers will need to redeploy an employee to an alternative role which does not have direct, face to face patient contact, who would otherwise be working in breach of the vaccine requirement. If redeployment is not possible, the employee will need to be dismissed.

What happens if an employee has only received one dose of the vaccine by April 2022?

There is a 10-week temporary exemption period for new starters to the organisation who have had one dose of the vaccine, to get their second (see above).

Your request for existing employees to provide evidence of their current vaccine status should help to highlight those who intend to get the vaccine, who have had the first dose but are not in a position to have the second until after April 2022.

In these circumstances, you should consider how the interim period can be managed. For example, you could agree with the employee to temporarily redeploy them to an alternative non-contact facing position; you could approve a period of annual leave; you could enforce annual leave, provided the correct period of notice is given; or, you could agree a period of unpaid leave.

What might my redeployment options be?

It is clear that redeployment – transferring the employee into another role – will need to be to a role which does not have direct, face to face patient contact.

Employers should not delay in exploring whether there are any roles that employees can be moved into and discuss this with employees at an early stage.

When considering redeployment, relevant factors to take into account include, the employee’s skills, experience, qualifications and whether they could perform the role with some training.

It is for the employee to decide whether or not they wish to accept the alternative role.  It is advisable to communicate the details of the alternative role in writing specifying sufficient detail of the position to allow the employee to make an informed decision.

There is no requirement that the alternative employment must be the same status or pay as the employee’s previous role, (subject to any contractual provisions to the contrary in the employee’s current contract or the employer’s policies and procedures). The requirement is on the employer to consider alternative roles and avoid making any assumptions as to whether the employee would find such roles acceptable.  A failure to fully consider and explore alternative employment is likely to make any subsequent dismissal for not providing evidence that the employee is fully vaccinated or medically exempt unfair.

If there is more than one employee that may be suitable for an alternative role, the role should be discussed with all employees that may be suitable and any employees that are interested in the role should be invited to apply for it or submit expressions of interest. If the employer receives more applications or expressions of interest than vacancies, a fair selection process will need to be implemented.

What process do I use to dismiss unvaccinated staff who are not exempt?

Rules on fair dismissals will still apply in these circumstances. This means that an employment tribunal can still find that a non-exempt employee, dismissed for being in breach of the requirement to have the vaccine, was unfairly dismissed. This is likely to occur when the procedure used to dismiss the employee was defective.

The first step is to inform your employees about the legal requirement and that they have been identified as falling within its scope. It is important, even at this early stage, that employees are made aware that their failure to provide necessary evidence will result in their redeployment or their dismissal.

You should ask for evidence that the employee:

  • is fully vaccinated
  • has received the first dose and has the second dose booked
  • has the first dose and/or second booked
  • is eligible for an exemption

You can set your own deadline for when employees need to provide evidence by, so that you can keep an element of control over the situation, however, employees effectively have until April 2022 to provide that evidence.

If an employee does not provide evidence by your deadline, you should invite them to a formal meeting to find out why and discuss the result of continued failure to provide evidence i.e. redeployment options or dismissal. Your subsequent actions will depend on the employee’s response, but a further meeting will also be needed to confirm redeployment or dismissal after the employee has been given a further opportunity to provide evidence.

In some circumstances, it may be appropriate to confirm dismissal in advance of the introduction of the law with a notice period set to expire on the date of enforcement. Where this happens, there will be a need to continually monitor the situation and withdraw the notice of dismissal in the event that satisfactory evidence is provided.

Notice pay is normally payable when dismissing an employee in these circumstances even where employment expires after the date of enforcement, meaning the employee is unable to work for a period.

I am worried that I will have a staff shortage because of this requirement. What can I do?

The government recently announced its £162.5 million workforce recruitment and retention fund to support the health and social care sector.

The Spending Review also committed funding to keep building a bigger, better trained NHS workforce, including support for some of the biggest undergraduate intakes of medical students and nurses ever and reaffirming the government’s commitment for 50,000 more nurses.

What is the government doing to address vaccine hesitancy?

The NHS has focused in recent months on a targeted approach to improve uptake in hesitant groups by undertaking campaigns directed towards midwifery workers, black, Asian, and minority ethnic (BAME) groups and students, as well as using the booster campaign as an opportunity to reengage workers. In order to maximise uptake over the winter months, the NHS’s plan includes the following:

  • further increase engagement with targeted communities where uptake is the lowest, including extensive work with BAME and faith networks to encourage workers to receive the vaccine
  • use Chief Professional Officers to encourage staff vaccination uptake for all NHS staff in a communications push
  • the use of 1-2-1 conversations for all unvaccinated NHS staff with their line manager, with clear guidance on how to do this.

This was associated with an increase in vaccine uptake by 10% in phase 1 increasing number and diversity of opportunities to receive the vaccine. Using the booster campaign to make the most of walk-ins, pop-ups, and other ways to make getting the vaccine as easy as possible.

This will be in place in addition to existing targeted programmes of work to support vaccine uptake, including bespoke communication materials; paid advertising; stakeholder toolkits; positive  messaging using influencers and leaders; content in different languages; briefings with different faith groups; engagement sessions; webinars with clinical experts; vaccine champions; and practical support including vaccination at places of work, flexible access to vaccine hubs, digital booking support and monitoring and support from NHS England.  

What should affected employers be doing now?

 

Legislation to revoke previously enacted laws on mandatory vaccination came into force on 15 March 2022. There is now no legally mandated requirement to be vaccinated against Covid in the UK. We wait to see if a regulatory requirement will be created. 

The below information remains for background information only. 

Since 11 November 2021, anyone working inside a CQC-regulated care home in England must have been fully Covid-vaccinated or exempt to continue in their role. Employees who submitted a self-certification for temporary vaccine exemption by 24 December 2021 have until 31 March 2022 to provide evidence of permanent medical exemption. From 1 April 2022, workers who have not provided official evidence must be redeployed to a role outside the care home or dismissed.

Similar regulations were passed on 6 January 2022 for workers within the wider health and social care sector (including NHS staff). These regulations allow a 12-week grace period (from 6 Jan – 31 Mar) for employees to show official evidence of their vaccination or exemption status. From 1 April, any affected employee who has not done so must be redeployed or dismissed.

In the wider health and social care sector, the regulations apply to anyone who is deployed for the provision of a CQC regulated activity, who has face to face contact with patients/service users. This includes clinical staff as well as ancillary staff (receptionists, cleaners, porters etc.) who may have incidental, social contact with patients. 

What has changed? 

On 31 January 2022, the government confirmed its intention to launch a public consultation, to seek responses over proposals to revoke the regulations making vaccination a condition of deployment (VCOD) for health and social care workers in England (including care home staff). The consultation was open from 9 -16 February 2022. On 1 March, the Government's response to this consultation confirmed the removal of the legal requirement. This will need to be voted on by parliament, but the government intends for these laws to be revoked on 15 March 2022. 

Why has it changed?

In a statement on 31 January 2022, Sajid Javid announced that he no longer believes it proportionate to mandate vaccination through statute. This decision was based on the severe staff shortages the regulations would cause, as well as the main Covid variant in the UK no longer being Delta; Omicron has been found to halve the numbers requiring emergency care or hospital admission, with lesser symptoms and side effects.

The Health Secretary confirmed he has written to professional health regulators, to ask them to review current guidance on vaccinations (including for Covid) and to emphasise employees’ professional responsibilities in this area. He has also asked the NHS to review its policies on the hiring of new staff and deployment of existing staff, taking into account their vaccination status. Finally, he plans to update the DHSC’s Code of Practice, which applies to all CQC-registered care providers in England.

What does this mean? 

Sajid Javid’s requests to review existing vaccination measures across the NHS, CQC and other regulatory bodies in the care sector, is done with the aim of strengthening the requirements in relation to Covid.

This means Covid vaccination may still be mandatory, but instead of being a legal requirement (through new laws), it will instead be a requirement imposed by the regulatory bodies. In practice, this will work in a similar way to DBS checks – namely, that employees must show evidence to meet the requirements of that role and comply with CQC (or other relevant body) rules.

What would happen if regulatory bodies required Covid vaccination? 

Different regulatory bodies (e.g. the CQC) could set their own vaccination requirements. This means the scope of who must show evidence of vaccination/exemption could apply differently depending on who the organisation is registered with and monitored by. Similarly, some bodies could, for example, require evidence of full vaccination plus booster doses, whilst others could choose not to.

Regardless of how this is implemented, it is anticipated that there would be greater flexibility for existing employees and for those with reasonable grounds for refusing vaccination. This includes individuals with religious or philosophical beliefs (e.g. ethical veganism).

Whilst greater flexibility may be welcomed by employees and employers alike, in reality, it could cause confusion and discrepancies in the sector and/or lead to employees favouring one organisation over another. This would further hinder difficulties associated with retention and widespread staff shortages.

What is the impact on employers? 

This change is, arguably, the worst thing the government could have done because it leaves so much uncertainty and considerable practical difficulties on how organisations should proceed.
Employers are faced with juggling concerns and anxieties from employees and patients/service users, whilst also trying to make new plans to ensure the ongoing success of their organisation and protection of their people.

Many employers will be happy that this puts a halt to immediate dismissals, thus safeguarding the organisation against insufficient staffing resources. However, new problems are created with what employers should do next, especially when an update from the government is unlikely until at least March 2022 at the earliest.

As such, employers will need to stay up to date with government announcements and changes, and be ready and prepared to act quickly when information is released.

What should employers do now? 

First and foremost, employers should communicate this update to their staff and take time to listen to any questions or concerns they may have. Constant presence and reassurance can go a long way in making this difficult period easier for all.


Employers can be transparent and honest by saying they do not know the path the government may take but should be clear they will do everything possible to retain all staff, whilst keeping them and their patients/service users safe from Covid.

Employers can continue to encourage vaccine uptake through supportive conversations and targeted resources. Similarly, employers can still ask for official evidence of vaccination/exemption status, to ensure they are compliant with existing regulations, in the event they remain as they are.

When questioned on the removal of the regulations, Sajid Javid was clear in saying that the 3 February 2022 deadline for employees to receive their first dose of the vaccine was no longer applicable. From this, it can be understood that there shouldn’t be any subsequent formal action (e.g. starting formal meetings/giving notice of dismissal from 4 February 2022 as originally suggested) since there is no longer a trigger point to base such processes on. In other words, employers have to consider what their grounds for dismissal would be because there is now no timeline on when vaccines need to be had by, so no reasonable consequences for not having it.

Sajid Javid confirmed that the DHSC would be writing to all NHS trusts, care home providers and wider social care settings, such as domiciliary care, to make them aware of this update. NHS England have already requested that employers do not serve notice of termination and it is expected similar organisations have done the same.

As such, employers should pause any procedures which they have started or are about to start. Instead, they can tell employees about the government’s development and confirm no further action will be taken until the consultation outcome is confirmed. It is still anticipated that MPs will vote on the removal set for 15 March 2022, which means the removal process is not over.

Employees should also be informed that it is likely a Covid vaccine requirement will play some part in their working life in the future, and that the removal of the legal requirement does not automatically mean that this will no longer be a factor in their continual employment. The situation will largely depend on how regulatory guidance is written which, unfortunately, is unknown at this time.

What if employers do dismiss now? 

Employers who choose to not wait for the outcome of the vote and instead proceed to service notice of dismissal (or confirm redeployment) will likely face significant push back from employees, as well as involvement from trade unions, so should be prepared for this. Similarly, any dismissals that actually take place, including those which aren’t rescinded or are given with PILON (pay in lieu of notice), will likely be unfair, as there are no reasonable grounds to continue with dismissing due to the removal of the 3 February 2022 deadline, and subsequent trigger points.

It is looking increasingly likely that the regulations will be revoked on 15 March 2022, meaning rescinding the dismissal is a probable necessity of employers. This then makes the time and effort spent completing process, including holding meeting, taking notes and drafting letters, could be wasted.

What about employees already dismissed and working their notice? 

Employers who have already completed consultation processes and served notice of dismissal will have employees currently in their notice period; this will be most relevant for care home employers who have had longer to consult and act on the mandatory vaccine regulations. Such employees are likely to either be working their notice period or placed on garden leave for the duration.

A care home employee may be working their notice period it they have submitted a temporary self-certification exemption, but are yet to provide official evidence of full vaccination or permanent medical exemption. In some circumstances, care homes gave notice of dismissal but highlighted this would be rescinded if the official evidence was given. A similar situation may apply to employees in wider health and social care settings, although this will be rare due to guidance that employers should not take formal action until 4 February 2022 at the earliest.

However, where this applies, employers can choose to either continue with the notice period and inform the employee this will be rescinded if the aforementioned evidence is provided, or if the government confirms a change of policy. It may be necessary to extend the notice period, depending on the government’s consultation outcome and the time it takes for this to be decided.

When on garden leave, employees are not expected to do any work, but remain employed by the organisation and continue to be paid throughout their notice period. This will likely be most applicable to care home staff who, since 11 November 2021, have not been allowed to enter the care home to work if they have not provided evidence of their vaccination/exemption status.

For such individuals, it is possible to continue with the notice period as given but confirm the dismissal will be rescinded if evidence is provided or the government changes the requirements, whichever is earlier. Equally, employers could instead choose to rescind the notice now and await the outcome of the consultation. However, a further meeting (and re-serving of notice) may be needed if the regulations remain unchanged, or are introduced in a different way.

What about employees off sick or off on family friendly leave? 

People on long-term absence from work, such as maternity, shared parental leave or sickness absence, will not be in scope unless and until they return to their role. This includes for one-off visits such as Keeping in Touch (KIT) days.

Where an employee is due to return from sickness absence or maternity leave, employers should update them of the requirements to provide evidence of vaccination/exemption status and the latest development with the government’s public consultation.

Care home employers are not able to allow anyone into the care home to work unless they have provided the required evidence. This has been in place since 11 November 2021. As such, absent care home workers or those on maternity leave, may be unable to return to work as planned if they have not done so. Instead, employers can agree a period of annual leave or authorised unpaid leave. This should last until the employee can show the required evidence or until the regulations are revoked/amended, whichever is earlier.

Such employees should be made aware of the possibility that, even if the legal mandate is removed, they could still fall within the scope of a new requirement by the regulatory body.

Should care homes re-hire dismissed staff? 

Regulations have not been revoked yet so care home employers should continue to follow the laws which are in place - this means nobody should enter a care home for work unless they can provide official evidence of their vaccination/exemption status.

Employers may want to tell ex-employees that they will be happy to have them back if the regulations change but explain it would be unlawful for them to do so at this time.

Scotland 

Contract tracing will come to an end in Scotland from 1 May 2022. 

Wales

Contract tracing will remain in place until June 2022. 

England 

From 24 February 2022

Routine contact tracing was ended, and contacts no longer have to self-isolate or undertake daily tests. 

28 May 2020 - 24 February 2022

Routine contact tracing ended on 24 February 2022 in England as isolation is no longer required for close contacts of a positive case.

The service:

             provides testing for anyone who has symptoms of coronavirus to find out if they have the virus

             gets in touch with anyone who has had a positive test result to help them share information about any close recent contacts they have had

             alerted those contacts, where necessary, and notified them they need to self-isolate to help stop the spread of the virus.

When self-isolation was legally required, the Government stated that, by following instructions to self-isolate, people who had close recent contact with someone with coronavirus were protecting their family, friends, colleagues and other people around them, and played a direct role in stopping the spread of the virus.

When someone first develops symptoms and orders a test, they were encouraged to alert the people that they had close contact with in the 48 hours before symptoms started. If any of those close contacts are colleagues, the person who has developed symptoms could (but was not obliged to) ask their employer to alert those colleagues. At that stage, those close contacts were not advised to self-isolate, but they:

             had to avoid individuals who at high-risk of contracting coronavirus, for example, because those with pre-existing medical conditions, such as respiratory issues

             had to take extra care in practising social distancing and good hygiene and in watching out for symptoms.

“Close contact” means:

             having face-to-face contact with someone (less than 1 metre away)

             spending more than 15 minutes within 2 metres of someone

             travelling in a car or other small vehicle with someone (even on a short journey) or close to them on a plane.

Those who test positive were asked, via the service, whether they had any such close contact in the 48 hours before they developed symptoms and the time since they developed symptoms.

The service then contacted anyone they reported as having had close contact with and to tell them to begin self-isolation for 10 days from their last contact with the person who tested positive, even if they did not feel unwell, unless they were fully vaccinated, under 18, or medically exempt from vaccination (these exemptions do not apply if there has been contact with the Omicron variant).

The practical effect of this service was that many more individuals were likely to self-isolate. In addition, large parts of a workforce, or an entire workforce, could receive an alert telling them they should self-isolate because one member of the workforce has tested positive for coronavirus. Employers could help to combat this by ensuring that employees work from home where possible, or implementing strict social distancing and hygiene measures in the workplace where home working is not possible.

Self-isolation was a legal duty until 24 February 2022 and anyone under the duty found not to be self-isolating faced fines starting at £1000 and increasing to £10,000 for repeat offenders.

The Government put together guidance for employers, which stressed that their role in the system is vital by:

             making their workplaces as safe as possible

             encouraging workers to heed any notifications to self-isolate and supporting them when in isolation.

It acknowledged that, although it may seem disruptive for businesses, it was less disruptive than an outbreak of coronavirus in the workplace will be, and far less disruptive than periods in lockdown.

Employers had to support employees who need to self-isolate and not ask them to attend the workplace.

If an employee needed to self-isolate, employers had to consider whether they could work from home. This might have included finding alternative work that could be completed at home during the period of self-isolation.

Employees who couldn’t work from home were entitled to receive SSP in line with the guidance on self-isolation given above due to further legislative amendments. SSP is not payable to those who are required to quarantine on return to the UK from overseas. Alternatively, the employer could have agreed that a period of annual leave is to be taken so that full pay is maintained, or another form of paid leave that is available to the employee.

Giving options to ensure full pay is maintained may be particularly important due to the possibility that an employee may be reluctant to self-isolate if it means a drop in pay. Employers may wish to strongly encourage employees who receive a notification to make this known, and to self-isolate, in order to protect the rest of the workforce.

The NHS test and trace service provided a notification that can be used as evidence that someone has been told to self-isolate.

A similar scheme, called “test and protect” is in place in Scotland.

Since 24 February 2022, routine contact tracing is no longer undertaken, and those who have had contact with a positive test do no have to self-isolate or take daily tests. As such, the below is for information only. 

The so-called “pingdemic” is causing employers to run on significantly reduced staffing numbers or, in some cases, having to close down their business due to lack of staff. Until 16 August 2021, self-isolation on receipt of the NHS app notification of being a close contact of someone who has tested positive for Covid-19 was advised, though is not a legal requirement. Since 16 August 2021, fully vaccinated people do not need to self-isolate when they receive an NHS app notification, as long as they provide a negative PCR test result, unless they have been in contact with the Omicron variant. 

How can I stop my employees from getting pinged?

It is largely out of your control when it comes to employees’ lives outside of the business and employers cannot restrict employees’ activities outside of work, especially now the vast majority of restrictions have been lifted. Employers can give staff reminders encouraging them to consider that their behaviour outside of work can affect the workplace. If employees do not receive full pay when they self-isolate, then they may be more inclined to be careful. Ensure that the workplace is Covid-secure which includes measures taken among colleagues as well as the public if there is contact with the public as part of work.

Can employees be asked to turn off the NHS app?

NHS guidance on contact tracing in England says the app can be paused in the following circumstances:

  • staff working behind a fixed screen where they are fully protected from other people
  • storing your phone in a locker or communal area, for example while working or taking part in a leisure activity like swimming
  • workers in health and social care, wearing medical grade PPE such as a surgical mask
  • healthcare workers working in a healthcare building such as a hospital or GP surgery.

Where an employer’s circumstances fall into one of those, then the app can be paused. The app then allows you to set a reminder to turn contact tracing back on after 4 hours, 8 hours or 12 hours.

Many employees have been pinged and need to self-isolate. What can be done to maintain operations?

The best position would be where the employee can work from home. If the role does not allow for this, consider whether they could be temporarily moved to another role which does allow homeworking.

If homeworking is not an option, consider the option of agency workers or other temporary workers; offering overtime to other employees, whilst being wary of working time rules on daily rest periods and maximum weekly working hours. Employers could also consider bringing forward the start date of new recruits.

Could some employees be excused from self-isolation?

Yes, though the scope of the exemption was limited.

On 22 July 2021, the Government confirmed a list of 16 sectors in England where the self-isolation exemption could be used. In the small number of situations where the self-isolation of close contacts would result in serious disruption to critical services, a limited number of named workers from these sectors could leave self-isolation under specific controls for the purpose of undertaking critical work only. Only workers who were fully vaccinated (defined as someone who is 14 days post-final dose) were exempted from self-isolation. It only applies where self-isolation notification comes via the NHS contact tracing app.

This process ran until 16 August 2021, when fully vaccinated close contacts became exempt from self-isolation.

The test that was applied when identifying if an individual could be exempt from self-isolation to attend work is whether they work in critical elements of national infrastructure and whether their absence would be likely to lead to the loss or compromise of this infrastructure resulting in one or both of the following:

  • major detrimental impact on the availability, integrity or delivery of essential services – including those services whose integrity, if compromised, could result in significant loss of life or casualties
  • significant impact on national security, national defence, or the functioning of the state.

The process was not intended to avoid all disruption to services that will result from the need for people to self-isolate. There was no blanket exemption for all workers in a sector.

Where employers believe the self-isolation of certain key employees as contacts would result in serious disruption to critical services, they could contact the relevant government department, as below.

  • Energy /Civil nuclear: contact BEIS at beisquarantine.exemptions@beis.gov.uk
  • Digital infrastructure: contact DCMS at dcms.coronavirus@dcms.gov.uk
  • Food production and supply/Waste/Water/Veterinary medicines/Essential chemicals: contact Defra at emergencies@defra.gov.uk
  • Essential transport: contact DfT at cv19pmo@dft.gov.uk
  • Medicines/Medical devices/Clinical consumable supplies: contact DHSC covid19.criticalworker@dhsc.gov.uk
  • Emergency services/Border control: contact Home Office at covid19operationsandpolicy@homeoffice.gov.uk
  • Essential defence outputs: contact MoD at spo-covidteam@mod.gov.uk
  • Local government: contact MHCLG at lgresponse@communities.gov.uk

Employers needed to provide information on:

  • the number of people who it is proposed would leave self-isolation
  • the roles those individuals need to perform
  • the impact failure to do this would have and when this impact is likely to materialise (for example, is it already an issue or likely to materialise in the coming days)

The relevant department worked with the Cabinet Office and the Department of Health and Social Care to agree the roles and workplaces that were likely to meet the criteria set out above on a daily basis. The relevant department then determined whether individual cases meet the criteria set out above. Decisions were made rapidly on a case-by-case basis and kept under review.

Where a specific case met the criteria, the employer received a letter from the relevant department setting out the named critical workers designated and telling them what measures they and those workers needed to follow.

Unless employers had a letter from a government department on which the workers were specifically named, employees who receive a notification via the NHS app had to self-isolate as directed.

Separate arrangements were in place for frontline health and care staff, supermarket depots and some food supply workers.

Sectors in Scotland were able to apply for their workers to be exempt from isolation but they had to be double vaccinated, have a negative PCR test and agree to take daily lateral flow tests. The exemption was only granted where workers had volunteered not to self-isolate – this meant it was an ‘ask’ situation, not a ‘compel’ situation. If employees only got SSP during isolation, it might have encouraged them to agree so they still got full pay.

Employers who met the definition of Critical National Infrastructure could apply for the exemption. There were 13 national infrastructure sectors:

  • Chemicals
  • Civil Nuclear
  • Communications
  • Defence
  • Emergency Services
  • Energy
  • Finance
  • Food
  • Government
  • Health
  • Space
  • Transport
  • Water

How it worked

Under the process, before a staff member who was a close contact of a positive case could return to work, they had to:

  • have had their second COVID-19 vaccination more than 14 days ago
  • have a valid vaccination record
  • not have symptoms of COVID-19
  • have evidence of a negative PCR test
  • take daily lateral flow tests for up to 10 days after being exposed to the virus
  • fully comply with any PPE requirements, hand hygiene and other infection control measures

How to apply

Businesses could email: covid19outbreakmanagement@gov.scot and demonstrate/explain:

  • that the organisation was a Critical National Infrastructure, as defined by the Centre for the Protection of National Infrastructure
  • how self-isolation was impacting their critical functions and services
  • what steps they had already taken to address this pressure
  • the impact of no action
  • the scope of the requested exemption – location, number of staff etc
  • whether they were currently engaging with a local incident management team (IMT) regarding outbreak management

If the exemption request was approved, the business/organisation had to engage with staff and union officials to make it clear that the decision not to self-isolate:

  • was voluntary
  • subject to personal risk assessment which should consider the individual's contacts and vulnerabilities.

My staff do not fall into the critical roles. Are they still required to attend work?

The below section is for information only and is no longer applicable. 

The legal position on self-isolation differs; isolation upon an NHS app notification is not a legal requirement; it is advisory only. Isolation due to Covid, symptoms, or being informed of a positive close contact through a track and trace system (like NHS Test and Trace), etc is a legal requirement.

An employee who receives an NHS app notification will not be breaking the law by attending work. Some employers therefore, have been asking the employee to come to work, with mitigating measures in place. However, this may not be a recommended course of action for both employment relations and health and safety reasons. It may, potentially, be seen as a breach of mutual trust and confidence leading to the employee finding they have no alternative but to resign, which could lead to a constructive dismissal claim if the employee feels strongly that they should adhere to the advice given.

Employers will need to manage that situation with other employees who may be concerned that someone who is advised to self-isolate is not doing so and is in the workplace. Other employees may be able to claim that they have a reasonable belief that the workplace poses a serious and imminent risk to their safety which they cannot reasonably be expected to avert, depending on the facts. Workers would, in this case, be protected against dismissal or detriment if they refused to come to work due to their colleague being present.

Employers who do choose this potentially controversial course should, at the very least, require the employee in question to provide a negative PCR test before being allowed back in work and then have daily lateral flow tests.

Employers also run the risk of being confused about whether the isolation is a legal requirement or not. Where it is, knowingly allowing an employee who ought to self-isolate into work is an offence and the employer could be fined; £1000 for a first offence and increases up to £10,000 for further instances.

How can I manage the self-isolation period? Will employees be paid?

Some of the available options are as follows:

  • Employee will isolate and do no work but can maintain full pay if employer chooses/has a policy to this effect.
  • Working from home (pay as normal).
  • Temporarily change role so that they can work from home (pay as normal).
  • Agree short notice annual leave request (pay as normal).
  • Enforce annual leave where there is enough time to give the correct notice (pay as normal).
  • Use up time off in lieu (pay as normal for the portion it covers).
  • Where no other arrangement made, SSP will be payable provided all eligibility criteria met which includes being on isolation for at least four calendar days. Once this “PIW” is formed, SSP will be payable from day 1 of absence (for absences before 24 March 2022). Employers with fewer than 250 employees can reclaim up to two weeks’ Covid-related SSP for each employee.
  • Where employee does not qualify for SSP, time off will be unpaid. There may be Government-led payments available dependent on circumstances.

 

During the pandemic, certain businesses were instructed to close, including but not limited to pubs, bars, restaurants etc.

No business of any type is currently instructed to close. 

Previous rules

Various lockdowns and business closures were in effect for much of 2020, and into 2021.

From 10 December 2021 “Plan B” was applied in England. This meant that with effect from Friday 10 December, masks had to be worn in most public venues, including theatres and cinemas, unless someone was medically exempt. This did not apply in premises where people are eating or exercising.

Monday 13 December, guidance to work from home wherever possible was reintroduced.

Wednesday 15 December, Covid passes became mandatory for nightclubs, unseated indoor venues with more than 500 people, unseated outdoor venues with more than 5000 people and any venue with more than 10,000 people.

Two doses were sufficient for a Covid pass, as will a negative lateral flow test, but this requirement was kept under review as the booster programme is rolled out.

In Wales, employers (and other businesses) had to undertake a bespoke coronavirus risk assessment and take reasonable measures to minimise exposure to, and the spread of, coronavirus based on that bespoke risk assessment. Also, adults and children over 12 had to wear face-coverings in indoor public places, with the exception of hospitality settings such as restaurants, pubs, cafes or nightclubs, or for solemnisation of a marriage, formation of a civil partnership or an alternative wedding ceremonies.

In Scotland, face coverings continue to be required in most indoor place, and employers should follow relevant guidance to keep their staff safe.

There is no longer a requirement to keep records or display test and trace QR codes for staff and visitors to 'check in', however businesses are encouraged to do so. 

On 18 September 2020, the government changed its guidance surrounding the maintaining of records to track who is visiting venues within certain venues in England. It became a legal requirement for designated venues to collect contact details for the purposes of NHS Test and Trace in England, alongside displaying official NHS QR code posters. 

  • first offence - £1,000
  • second offence - £2,000 
  • third offence - £3,000 
  • any further notices - £4,000. 

The following businesses in England had to keep records of the working hours of their staff, and their contact details, for 21 days so that the data could be provided to NHS Test and Trace if requested. These businesses included, but were not limited to, the following:

  • hospitality
  • tourism and leisure 
  • close contact services
  • facilities provided by local authorities 

This has now been repealed, but businesses and venues remain strongly encouraged to continue to collect this data, especially in the following sectors:

  • hospitality
  • tourism and leisure
  • close contact services
  • facilities provided by local authorities.

 

This scheme came to an end on 30 September 2021.

The Government announced the Job Retention Scheme on 20 March 2020 via which businesses could apply for a grant to cover 80% of wages for employees who were being retained but not working, to a maximum of £2500 per month, in order to avoid unpaid lay off.

The Scheme ran until the end of September 2021 subject to changes in funding levels from July 2021. Until the end of June 2021, the Scheme provided 80% wage cover, to the £2,500 cap. In July, funding dropped to 70%, and dropped further to 60% for August and September 2021. Maximum caps are reduced correspondingly.

Where employers or employees did not qualify for funding from such Schemes, lay-off may bewas an appropriate alternative. Employees who are ready and willing to work but are not provided with work (as would be the case with a temporary closure) can be placed on lay-off. Lay-off must be with full pay unless there is a provision within the contract for lay-off without pay (subject to the payment of statutory guarantee pay for employees with at least one month's service at the time of lay-off). If there is no contractual provision, you can attempt to agree with employees a period of unpaid lay-off.

This may also occur when the business itself has not taken the decision to close, but where, for example, the landlord of the building from which the business operates has decided to close its doors, meaning that no one can enter. In this situation, employers should consider whether it can temporarily move to an alternative location or permit its employees to work from home. If no other alternative can be found, a period of lay-off may be required.

For more information, please refer to our Furlough under the Job Retention Scheme (November 2020 onwards) FAQs

 

The Job Support Scheme was due to commence on 1 November 2021 after the end of the Job Retention Scheme. However, due to the extension of the Job Retention Scheme, the Job Support Scheme will not now be used.

No schools are currently ordered to close due to COVID, and there are no restrictions on which pupils may attend. Many schools however are affected by isolation rules. 

School closures have been in place from time to time as part of the pandemic response, but schools remain open for vulnerable children and children of key workers. The Government announced that, for this purpose, those who work in the following sectors are classified as key workers.

Health and social care

This includes, but is not limited to, doctors, nurses, midwives, paramedics, social workers, care workers, and other frontline health and social care staff including volunteers; the support and specialist staff required to maintain the UK’s health and social care sector; those working as part of the health and social care supply chain, including producers and distributors of medicines and medical and personal protective equipment.

Education and childcare

This includes:

  • childcare
  • support and teaching staff
  • social workers
  • specialist education professionals who must remain active during the coronavirus (COVID-19) response to deliver this approach.

Key public services

This includes:

  • those essential to the running of the justice system
  • religious staff
  • charities and workers delivering key frontline services
  • those responsible for the management of the deceased
  • journalists and broadcasters who are providing public service broadcasting

Local and national government

This only includes those administrative occupations essential to the effective delivery of:

  • the coronavirus (COVID-19) response, and the delivery of and response to EU transition
  • essential public services, such as the payment of benefits and the certification or checking of goods for import and export (including animal products, animals, plants and food), including in government agencies and arms length bodies.

Food and other necessary goods

This includes those involved in food:

  • production
  • processing
  • distribution
  • sale and delivery
  • as well as those essential to the provision of other key goods (for example hygienic and veterinary medicines).

Public safety and national security

This includes:

  • police and support staff
  • Ministry of Defence civilians
  • contractor and armed forces personnel (those critical to the delivery of key defence and national security outputs and essential to the response to the coronavirus (COVID-19) outbreak and EU transition)
  • fire and rescue service employees (including support staff)
  • National Crime Agency staff
  • those maintaining border security, prison and probation staff and other national security roles, including those overseas.

Transport and border

This includes those who will keep the air, water, road and rail passenger and freight transport modes operating during the coronavirus (COVID-19) response and EU transition, including those working on transport systems through which supply chains pass and those constructing or supporting the operation of critical transport and border infrastructure through which supply chains pass.

Utilities, communication and financial services

This includes:

  • staff needed for essential financial services provision (including but not limited to workers in banks, building societies and financial market infrastructure)
  • the oil, gas, electricity and water sectors (including sewerage)
  • information technology and data infrastructure sector and primary industry supplies to continue during the coronavirus (COVID-19) response
  • key staff working in the civil nuclear, chemicals, telecommunications (including but not limited to network operations, field engineering, call centre staff, IT and data infrastructure, 999 and 111 critical services)
  • postal services and delivery
  • payments providers
  • waste disposal sectors.

This information was updated on 1 October 2021

The rules for international arrivals into the UK are being regularly reviewed and updated by the government, and the most up to date information is available on the government website. 

From 18 March 2022 

All remaining restrictions on international travel into the UK have now been removed. Since 4 am on that date no-one entering the UK needs to take tests or complete a passenger locator form. The remaining managed hotel quarantine capacity will be fully stood down from the end of March, making the UK one of the first major economies to end all COVID-19 international travel rules. However contingency plans put in place to manage any future variants of concern (VoCs).

This means that unvaccinated passengers will no longer be required to under a pre-departure or day 2 test. 

Previous rules 

9 December 2021 and 11 February 2022

Red list countries

Only the following could enter England from a red list country (or where the traveler had been in a red list country within 10 days of arrival):

•             a British or Irish National

•             those with residence rights in the UK.

The list of countries on the red list is regularly reviewed and updated. The most up-to-date list is available on the Government website. 

The rules for red list countries apply to all travelers, regardless of vaccination status. 

Before arrival from a red list country

•             take a Covid-19 test in the two days before travel to England

•             book a quarantine hotel package, including two Covid-19 tests

•             complete a passenger locator form.

On arrival

•             Quarantine in a managed hotel, and take two Covid-19 tests.

Travelling with children 

•             Children aged 12 to 17 must take a Covid-19 test in the two days before travel to England.

•             On arrival in England children aged 5 to 17 must quarantine in a managed hotel for 10 full days and take two Covid-19 tests.

•             Children aged 4 or under do not have to take any travel tests but must enter managed quarantine.

Transiting through a red list country on the way to England

Whether the red list rules needed to be followed as a result of a transit stop in a red list country depended on what happened during the stop.

Air passengers

Where border control was passed at the airport during the transit stop.

Ship passengers

Where:

·         the traveler disembarked from the ship

·         other passengers disembarked then re-board the ship

·         new passengers got onto the ship

Train passengers

·         If the traveler left the train. 

Private vehicles or coaches travelling through red list countries or territories

The rules of the countries and territories driven through apply. Where the traveler drove through a red list country, then the red list rules had to be followed on arrival in England, whether the vehicle stopped or not. 

All other countries

Fully vaccinated

Before travel to England:

•             take a Covid-19 test — to be taken in the two days before travel to England

•             book and pay for a Covid-19 PCR test — to be taken after arrival before the end of day 2

•             complete a passenger locator form — to be completed in the 48 hours before arrival.

Even where the stay in England was for less than two days, a test had to be booked and paid for on day 2. Travelers had to quarantine until either they leave England or receive a negative test. 

On arrival, all vaccinated travelers had to quarantine at home or other accommodation until a negative test result is received (or 14 days, whichever is sooner). If a positive result is received, a full 10-day quarantine must be completed. 

The fully vaccinated rules apply for:

•             under 18s 

•             those taking part in an approved Covid-19 vaccine trial in the UK or the USA (US residents only for USA trials), or a phase 2 or 3 vaccine trial that is regulated by the EMA or SRA

•             those unable to have a Covid-19 vaccination for a medical reason which has been approved by a clinician under the medical exemptions process, and resident in England.

Proving vaccination status

•             NHS Covid Pass for England and Wales

•             NHS Scotland Covid Status app

•             CovidCert NI in Northern Ireland.

Paper certificates are also available.

There are different ways to prove vaccination status for vaccinations outside of the UK.

Not vaccinated

Before travel to England:

•             take a Covid-19 test — to be taken in the two days before travel to England

•             book and pay for day 2 and day 8 Covid-19 PCR tests — to be taken after arrival in England

•             complete a passenger locator form — to be completed in the 48 hours before arrival in England.

After arrival:

•             quarantine at home or in the place they are staying for 10 full days, regardless of test results

•             take pre-booked Covid-19 PCR tests on or before day 2 and the second test on or after day 8. 

Even where the stay in England was for less than two days, a test had to be booked and paid for on day 2 and day 8. 

Test to Release scheme

It was possible to pay privately for a test and be released from quarantine early. 

Travelling with children

Children aged 4 and under did not have to take any Covid-19 travel tests.

Children aged 12 to 17 had to take a Covid-19 test in the two days before travel to England.

Children aged 5 to 17 had to follow the testing and quarantine rules for people who qualify as fully vaccinated on arrival in England.

This meant that they had to quarantine on arrival and take a PCR test on or before day 2.

Ireland, the UK, the Channel Islands and the Isle of Man

The following did not apply when travelling from the above:

•             complete a passenger locator form

•             take any Covid-19 tests

•             quarantine on arrival in England.

Statutory sick pay was not payable to those who self-isolate on return from overseas.

28 February 2022 to 18 March 2022

For those who are fully vaccinated, they must complete a passenger locator form 48 hours before arrival in England. No testing or quarantine prior to, or after, arrival, is required. 

For those not fully vaccinated, the following applies: 

  • A Covid test must be taken in the two days before arrival in England. 
  • A PCR test must be taken after arrival. 
  • A passenger locator form must be completed. This must include the PCR test booking reference. 
  • Quarantine is not required
  • The test must be taken before the end of day 2 (the day of arrival is day 0). 

For those travelling with children, those 17 and under do not need to take any tests or quarantine. 

There are no longer restrictions in place for those entering the UK from abroad.

Certain job roles were exempt from the general rules for international travel, although are still subject to testing, such as aircraft pilots and crew, border security staff and bus or coach drivers. An extensive list of exempt job roles was available on the government website. 

 

The law allows you to cancel annual leave that has already been authorised as long as you give the minimum required notice (notice should be for as long as the leave to be cancelled i.e. to cancel one week's leave, one week's notice is needed) but you should proceed with caution here. Cancelling leave which has already been authorised, in any situation, is not likely to go down well with the employee and will often lead to a loss of money for them.

 

No, there is no requirement for you to do this. If you have specific rules on allowing employees to cancel their leave, you should stick to these but, in the circumstances, you may decide to be more flexible and allow cancellation.

Employers should not try to implement penalty clauses for these situations. It does remain highly likely that this type of deduction will be deemed an unlawful deduction from wages and so it is not advisable to proceed in this way. 

 

You can expect that the employee will try to identify other methods of getting back home. If, for whatever reason, they cannot travel back, there are several ways in which you can deal with this: 

  • use their annual leave to cover the absence. The length of their absence and their remaining entitlement to annual leave will dictate the extent to which you can do this. Using annual leave like this will have to be agreed with the employee unless you take the step of enforcing annual leave on the employee, meaning you need to give them notice that you require them to take annual leave that is twice as long as the time you require them to take. For example, a week’s leave will require two weeks’ notice. The uncertainty around the length of their absence may make this tricky;
  • agree for the employee to work from where they are for now if the nature of their job allows for this and they have the equipment they need to fulfil their duties. The employee cannot insist that they work from their location if it is clearly not tenable;
  • agree that the employee uses banked time off in lieu. It is not likely that the employee would have enough lieu time to cover an extended absence;
  • agree a period of paid leave that is not annual leave;
  • agree a period of unpaid leave;
  • agree any other type of leave permitted by the contract that may be appropriate.

 

Provided there are no travel restrictions preventing the visitors entering the UK which will take the matters out of your control, it’s up to you whether to postpone the visit. Your employees may raise concerns about potential exposure to the virus and you may wish to take this into consideration, though any unreasonable resistance should be dealt with accordingly. If you decide the visit should go ahead, ensure there are robust hygiene measures in place, restrict contact between your employees and the visitors as much as reasonably possible and take more care with any of your employees who are older, pregnant, have existing respiratory conditions or those who have diabetes, chronic lung disease or cancer.

 

It is best to take precautionary measures seen as your employee has potentially been in contact with someone who has the virus. A period of suspension (paid unless the contract says otherwise) is advisable.

Provided there are no travel restrictions in place preventing the visit, there is little you can do to stop this happening. Ensure the employee knows what to do if they begin to feel ill during or after the visit. Suspension of the employee would probably not be appropriate in this scenario unless you know or suspect that one of the family members has the virus but this will be your decision.

 

There is currently no evidence that Coronavirus can be carried in packages that have originated in China and so no grounds for your employees to refuse to deal with any that are received. To allay their fears, you could consider providing gloves which will be thrown away after each use, and encourage good hand hygiene.

 

 

Yes. The government has stated that all those who contract the virus are to be provided SSP from day one of their illness, not day four, however it has not yet been confirmed when this will come into force. 

For those who are self-isolating as a result of having a fever and/or a cough, they should also be provided SSP.

Please note payments of SSP from day one of a covid-related absence are no longer in place. 

If your company has less than 250 staff, the government previously covered the payment of statutory sick pay (SSP) for a minimum of two weeks per employee. 

This is no longer in place. 

If you send someone home despite them not showing symptoms, you are technically acting against government advice and should continue to pay them full pay. 

Employees in this situation would be able to covert their sickness absence to annual leave, however this must be their choice; you cannot enforce such an option. 

If an employee was legally obligated to stay away from the workplace, and are unable to work from their quarantined location (such as being told not to or being too ill), they should receive SSP. 

This will not necessarily result in a business closure, however you should contact your local Public Health England protection team. They will then carry out a risk assessment, discuss with you the individuals who may have been exposed and offer further advice on the steps you should take. This will include what cleaning would be advisable. 

Usually, such a option would be difficult to enforce without an employee's consent and could even result in claims of constructive dismissal or assault. However, if the nature of the business means it cannot risk the pandemic spreading across the workforce and would need to close in this situation unless it undertook health checks, consent may not be an issue. 

Taking such measures may actually be well-received by a workforce and help to reassure them that the organisation is protecting their health and safety. 

Taking such an action will be a variation of contract. To do this, you will first need to seek the consent of your workforce. Although they may be hesitant at agreeing to this change, they may decide differently if such a change is crucial to the survival of the business and maintaining their employment. 

If staff will not agree, you may then consider dismissing and re-engaging them on the new contract, although bear in mind that this could result in an unfair dismissal claim. 

You could also seek to unilaterally impose the change although you should be mindful for the potential of claims for unlawful deductions from wages or constructive dismissal. 

Yes, such an action could place them at a detriment. You should also bear in mind government guidance on self-isolating for those who are most at risk from the coronavirus. 

Government guidance outlines the following individuals are the most at risk:

  • Individuals aged over 70
  • Women who are pregnant
  • Individuals aged under 70 with an underlying health condition. These are listed as:
     
  • chronic (long-term) respiratory diseases
     
  • chronic heart disease
  • chronic kidney disease
  • chronic liver disease
  • chronic neurological conditions
  • diabetes
  • spleen issues, for example, sickle cell disease or where an individual has had their spleen removed
  • a weakened immune system as the result of conditions such as HIV and AIDS, or medicines such as steroid tablets or chemotherapy
  • being seriously overweight (a body mass index of 40 or above).

Sharing a vehicle is necessary for certain types of work, such as working in domestic premises. Some people may choose to share a car to work as it generally exposes commuters to fewer risks of coronavirus infection than taking public transport.

The usual coronavirus risk control measures should apply.

  • Only share with the same person/persons and keep the group as small as possible.
  • Do not car share if any of the travellers is showing symptoms of the virus or is living in a household with anyone else who is showing symptoms.
  • Check the quarantine requirements for anyone who has returned from abroad in the past 10 days.
  • Ensure good ventilation by keeping the car windows open.
  • If there are only two of you, one should sit diagonally from the driver in the back seat to maintain maximum distance.
  • Clean the car regularly using gloves and anti-viral cleaning products, especially the door handles and other areas that passengers may touch.

Research indicates that wearing masks may protect others from the wearer’s germs if they are asymptomatic —it would be worth discussing how if everyone sharing the car would be prepared to wear a face covering.

The three key points are to make the journey as short as possible, avoid physical contact and face away from others in the car. As with any mode of transport, upon arrival, everyone should wash their hands for 20 seconds using soap and water or apply hand sanitiser of at least 60% alcohol.

Clearly, as part of the general Covid-19 secure guidelines, employers should emphasise to employees that if they are showing any of the signs and symptoms of Covid-19 they should self-isolate in accordance with government requirements and not come into work.

That said, there may well be occasions where an employee, contractor or visitor attends a workplace and becomes ill rapidly with symptoms that are associated with Covid-19.

Under the Health and Safety (First Aid) Regulations 1981, employers must make appropriate first-aid arrangements for workplaces. Employers have a duty of care to employees to provide first aid, which may be extended to others such as members of the public present on the employer’s premises.

This will normally be through appropriately first-aid qualified employees who have volunteered for the role or are contracted to do it.

Guidance from the UK Government notes that employers should be reviewing incident and emergency procedures as a result of Covid-19. British Standards Institution (BSI) guidance goes into more detail, stating that “the organisation should establish and communicate processes to manage suspected and confirmed cases of Covid-19”.

As the signs and symptoms of Covid-19 may also arise in other illnesses, trained first aiders should be assisting in any cases of illness, as it may not be Covid-19 related.

Employers should engage with their first-aid trained personnel and put in place appropriate measures in the event of an employee falling ill. This will help to give assurance to staff providing first aid.

Measures to support the first aiders may include:

  • minimising possible transmission of Covid-19 by treating anyone who becomes unwell as a potential Covid-19 case
  • ensuring suitable PPE is provided for and used appropriately by first aiders
  • isolating the person who is unwell while first aid is provided
  • providing the affected person with a face mask and asking them to wash or sanitise their hands
  • ensuring first-aid trained personnel follow Health and Safety Executive guidance on first aid treatment under pandemic conditions.

Following the initial response, appropriate follow-up procedures might include:

  • arranging for the employee to be taken home avoiding public transport (eg being collected by family member)
  • advising the employee to arrange a Covid-19 test
  • establishing whether the employee has been in close contact with other employees
  • arranging for the area used by the employee to be isolated and/or cleaned
  • keeping records of the first-aid treatment and all personnel involved or potentially exposed.

As employees return to work in larger numbers, there is the increased potential for coronavirus cases among those who are present at work and, subsequently, transmission of the virus.

Official Government guidance for England recommends that, as part of the risk management, employers should ensure they have an up-to-date plan in the event of an outbreak.

Guidance from the British Standards Institution recommends that organisations “should establish and communicate processes to manage suspected and confirmed cases of Covid-19”.

In the event of an employee (or other stakeholder) becoming unwell, organisations should ensure they have a procedure for immediate action that:

  • requires any person becoming unwell to be treated as a potential Covid-19 case
  • enables the person that is unwell to be isolated while awaiting first-aid assistance, transport home or assistance from medical professionals
  • provides appropriate personal protective equipment to first-aid personnel and a face mask to the person who is unwell (taking account of any respiratory issues)
  • ensures first-aid personnel are aware of procedures to follow as detailed by the Health and Safety Executive
  • enables the person to return home (where medical assistance is not required) avoiding the use of public transport (eg collection by family member)
  • encourages the staff member to seek a Covid-19 test and then inform the employer of the result of that test.

Where there is a known or suspected case, the organisation should put into action the necessary cleaning requirements as described in official Government/home nation guidance, including disposal of items of waste.

The BSI guide recommends that where a suspected or confirmed case is known, employers should “establish if an affected worker has been in close contact with other workers (eg performing work activities without physical distancing in a team or pair)”.

This will fall in line with requirements under the various UK test and trace regimes, which should form part of any process and planning for suspected or confirmed cases.

The planning should also include a process to determine if the case (when confirmed) requires reporting under RIDDOR as a work-related exposure.

If there is more than one case of Covid-19 associated with a workplace, employers should contact their local health protection team to report the suspected outbreak.

It is true that the UK is easing restrictions on social life and work, and there are suggestions that face masks and social distancing may no longer be required. However, although the vaccine programme seems to have brought Covid-19 under control, it would be unwise to remove workplace control measures immediately. Not only is the virus still in circulation in the UK, we also do not know what new variants might develop.

Hand sanitisers should not be our main focus, however ― handwashing is still the best option in terms of hand hygiene. As we have learnt, the coronavirus is enveloped in a fatty layer. Soap dissolves this envelope, causing the virus to break down and become inactive.

Alcohol-based hand sanitisers work in the same way but they become less effective when used on dirty, sweaty or greasy hands, and repeated use can cause skin irritation. Also, many people do not use a large enough volume of the sanitiser to kill the virus or wipe off the gel before it has dried.

You could, therefore, do away with hand sanitiser in the office if your risk assessment indicates that other controls such as ventilation and cleaning will manage the risk of transmission, and where employees are following advice to wash their hands on arrival and before leaving the premises, and regularly in between.

However, the Government’s Covid secure guidance still states that organisation will usually need to provide hand sanitiser in multiple accessible locations. It would be worth supplying it for another few months at least as everyone gets back to work to provide an extra level of protection, especially in eating areas, communal areas and where there is no soap and water within easy reach. Remember, to be effective, the hand sanitiser should have an alcohol content of at least 60%.

The UK is currently undertaking a programme to offer a coronavirus vaccination to all eligible adults. The primary purpose of the vaccination is to prevent serious illness and death. It is hoped that the vaccine may also reduce the ability of a vaccinated individual to transmit the virus to others.

The national vaccination programme is based upon the principle of “informed consent” in that individuals should determine for themselves whether they wish to have the vaccine, based upon its advantages and disadvantages.

Although the majority of individuals are taking the vaccine, some are declining the offer. This could raise issues for the employer as more groups in the wider working population are offered the vaccine.

Encouraging employees to have the vaccination is a sensible approach but the Chartered Institute of Personnel and Development (CIPD) also suggests that employers should be updating risk assessments for the “potential for individual employees to refuse a vaccination and additional measures the employer can put in place if any staff refuse vaccination”.

There can be a variety of reasons why an individual refuses to have a coronavirus vaccination. Whatever the reasoning, if the employer is aware that an employee has declined the vaccine, each case will need to be assessed on an individual basis. The organisation should work with the employee and involve them in the ongoing risk assessment.

The risk assessment should consider not only the risks to the unvaccinated member of staff but also the potential risk to others to whom the employer has a duty of care (such as other employees, contractors, visitors, service users, etc).

The employer should consider alternative risk control measures (eg social distancing, screens, PPE and changes to working practices) but these will need to be proportionate to the risk.

If it is decided that alternative control measures are not reasonably practicable and the risk is not tolerable, the CIPD states that employers may have to consider not allowing the employee in question to return to work and ultimately consider dismissal proceedings.

As the CIPD notes, “this entails a legal risk for the employer. Indirectly pressurising employees to be vaccinated (such as with disciplinary action) is likely to result in claims and will be less successful, ultimately, than the encouragement approach of sharing educational factual information”.

This is clearly is a very dynamic issue and the employer should ensure they remain aware of any changes to guidance from relevant parties.

We have decided to provide our employees with face coverings if they wish to wear them, eg when travelling on public transport or for shops or cafes at lunch. Are there any specific standards for face coverings and what, as an employer, is our duty in relation to advising employees on the use of face coverings?

Face coverings are largely intended to protect others, not the wearer, against the spread of infection because they cover the nose and mouth, which are the main confirmed sources of transmission of virus that causes coronavirus infection.

There are now numerous different face coverings being manufactured and sold online or in stores. Face coverings do not come under the requirements of the EU Personal Protective Equipment Regulations (2016/425) and are not subject to any performance requirements.

However, the European Committee for Standardization (CEN) has approved a Workshop Agreement (under ANFOR stewardship) that sets out performance requirements, methods of testing and uses of community face coverings. The British Standards Institute will not be creating a separate standard and intends to adopt the CEN Workshop Agreement.

In addition, the British Retail Consortium has released a Specification for Textile Barrier Face Coverings, designed for both disposable and reusable coverings. The specification sets out the design, performance and chemical requirements of coverings, as well as labelling instructions. The performance requirements do not include tests for filtration efficiency which are incorporated under the CEN/AFNOR guidelines.

Suppliers will also be required to adhere to the General Products Safety Regulations 2005, which require that only safe products are placed on the market.

When purchasing face coverings for employees, it may be advisable to ensure any supplier or manufacturer is following the guidance produced in respect of face coverings as noted above.

Further information on the performance and specification requirements of face coverings can be found at GOV.UK.

In terms of use, reference can be made to the various home nation guidance documents on Covid-19 secure workplaces. In general, employers should support employees in using face coverings safely. Advice to employees should be that they:

  • wash their hands thoroughly with soap and water for 20 seconds or use hand sanitiser before putting a face covering on, and before and after removing it
  • when wearing a face covering, avoid touching their face or face covering, as they could contaminate them with germs from their hands
  • change the face covering if it becomes damp or if they touch it
  • continue to wash their hands regularly
  • change and wash their face covering daily in line with manufacturer's instructions
  • dispose of single-use face coverings carefully in the usual waste stream.

There is a legal requirement for employers to record risk assessments if they employ five or more people. However, in view of the new Government guidance on working safely, COVID Secure, and our current knowledge of the coronavirus, it is worth recording your risk assessments even if you employ fewer than five people, since this will allow you to review the assessment quickly when new information is published and decide if you need to change any control measures.

If different branches or sites in the organisation carry out different activities or have different layouts, the risk assessment may be slightly different for each one. It might be easiest to develop a risk assessment for one branch or site and then use that as a template for other areas.

You don't have to inform anyone you have done the risk assessment, but the Government has issued a Declaration that can be completed and displayed once a risk assessment is complete. Displaying this will give employees, customers, contractors and visitors more confidence to enter your premises.

Remember to share the results of any risk assessment and the control measures taken as a result of it with your employees and other stakeholders. Employers have a legal duty to inform employees about the significant risks identified and to provide them with information and training on how the organisations will control those risks.

Early in the pandemic it was established that the virus impacted older people most in terms of how ill they became and their rates of hospitalisation. This meant that vaccine programmes were set up to reach older age groups first.

However, this left the impression among some young people that they were less likely to catch Covid and that, even if they did, they would suffer only mild symptoms.

While this is true for many, the numbers involved mean that there are still cases of serious illness and deaths in younger age groups. Younger people can also be a source of infection for others.

The NHS is now urging younger people to get the jab as recent figures show that, by August 2021, those aged 18–34 made up 20% of admissions to hospital with the virus.

So, yes, you should be encouraging all staff to get vaccinated when they are invited to do so. Even young, fit individuals are at risk from Covid-19, both in the short and long term. And, obviously, an outbreak among staff could seriously affect your business.

The Government has resisted the idea of making it compulsory for employees to be vaccinated but has promoted incentives for people to get the jab. It might help encourage employees who just haven’t yet got round to getting vaccinated to remind them that Uber and Deliveroo are among the firms offering discounts to customers who have been jabbed.