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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.

For a selection of frequently asked questions on furloughing employees, please refer to our article.

Recent developments

Furlough and the Job Retention Scheme

30 September 2021 marked the last day of the furlough scheme in the UK. The scheme, operational since March 2020, was used by employers to support 11.6 million jobs since its creation.

More information can be found in our FAQs.

Coronavirus SSP Rebate Scheme

30 September 2021 also marked the last day of the SSP rebate scheme in the UK. Employers have until 31 December 2021 to submit any final claims for eligible SSP payments. 

Compulsory vaccines for the care sector

All care home staff (unless exempt) have until 11 November 2021 to get fully vaccinated against covid-19, or face redeployment outside of the home or dismissal.

The intention to raise a judicial review of this law has been indicated, but this has not yet been done.

Please click here for details. 

Shielding to end across Britain

On 15 September 2021 shielding was brought to a permanent end. Moving forwards, centralised guidance for clinically vulnerable people will not be issued.

Right to work checks temporarily changed

In light of the 2020 coronavirus outbreak, since 30 March 2020 employers can adopt a revised process for checking right to work, which will remain in place until at least 5 April 2022.

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.

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 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.

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.

On 17 March 2020, the Government advised against all non-essential foreign travel to tackle the spread of the virus. As a result, all but essential business travel was stopped.

As the rules on foreign travel have been relaxed, business travel is now possible again, however employees should be given information about the country they are travelling too and encouraged to get the vaccine if they are able to reduce the risk of serious infection.

See our section on ‘foreign travel and quarantine’ for further information.

This information was updated on 1 October 2021

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. In England, the Government's instruction for people to work from ended with effect from 19 July 2021. Similar relaxations of restrictions were applied in Scotland from 9 August 2021 and Wales from 7 August 2021, however the respective Governments are still keen for employers to allow homeworking where possible.

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 was, and still is, 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 does 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 says 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.

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.

This information was updated on 1 October 2021

The Government is advising that certain people should self-isolate. This is required for those:

  • who have any symptoms of COVID-19
  • who have tested positive for COVID-19
  • who live with someone who has symptoms or tested positive (unless they have been fully vaccinated, or are medically exempt from being so, or are under 18)
  • have been told they have been in contact with someone who tested positive (unless they have been fully vaccinated, or are medically exempt from being so, or are under 18)
  • have been advised to self-isolate at home for a period before their admission date to hospital for a procedure
  • they have arrived in England from certain overseas countries (not including Ireland, the Channel Islands, the Isle of Man or other parts of the UK) and need to quarantine.

Self-isolation is generally for a period of 10 days, but remains at 14 days prior to a hospital admission.

On 28 September 2020, the Health Protection (Coronavirus Restrictions) (Self-isolation) (England) Regulations 2020 came into force in England which introduced various criminal offences in respect of self-isolation. It is now 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 can result in a fixed penalty notice of £1000 for the first offence increasing to £10,000 for repeated offences.

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

The employer must be aware of the employee’s need to self-isolate, and of any breach of the self-isolation requirement by the employee. Workers are now under a legal obligation to inform their employer of the need to self-isolate; however, this only applies where the employee is not already working from the place they are self-isolating which is 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), should be remembered here; 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” will provide you with evidence that your employee has been advised to self-isolate. You 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 you.

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.

This information was updated on 1 October 2021

Big changes will be taking place from 4 October 2021. The previous three list system will be replaced with a single list of red countries, with rules for travel from other countries dependent upon vaccination status.

Until then, everyone, even those fully vaccinated, must follow the below:

Red list countries

 

Those who have been in a country or territory on the red list in the last 10 days will only be allowed to enter the UK if they are a British or Irish National, or have residence rights in the UK.

Before travelling to England:

·         take a COVID-19 test in the 3 days before travel to England

·         book a quarantine hotel package, including 2 COVID-19 tests

·         complete a passenger locator form

Upon arrival:

·         quarantine in a managed hotel, including 2 COVID-19 tests

Amber list countries

For those who have been in a country or territory on the amber list in the 10 days before arrival in England.

Before travel to England:

·         take a COVID-19 test  in the 3 days before travel to England

·         book and pay for COVID-19 tests – to be taken after arrival in England

·         complete a passenger locator form

Upon arrival:

After arrival in England a COVID-19 test on or before day 2 must be taken by those fully vaccinated, taking part in an approved COVID-19 vaccine trial in the UK or the USA, or under 18 and resident in the UK, a UK Overseas Territory, the USA or one of the specified European countries

Those not vaccinated must:

·         quarantine at home or in place for 10 days

·         take a COVID-19 test on or before day 2 and on or after day 8

Green list countries

For those who have been in a country or territory on the green list in the 10 days before arrival in England.

Before travel to England:

·         take a COVID-19 test  in the 3 days before travel to England

·         book and pay for a day 2 COVID-19 test – to be taken after arrival in England

·         complete a passenger locator form

Upon arrival:

A  COVID-19 test must be taken on or before day 2. Quarantine will only be necessary if the result is positive.

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

No COVID-19 test or quarantine is required on arrival in England if travelling within the UK, Ireland, the Channel Islands and the Isle of Man, (the Common Travel Area).

Travel from red countries

From 4am Monday 4 October, all those who have been in a country or territory on the red list in the last 10 days will only be allowed to enter the UK if they are a British or Irish national or have residence rights in the UK.

Before arrival in England:

·         take a pre-departure COVID-19 test – to be taken in the 3 days before travel

·         book a quarantine hotel package, including 2 COVID-19 tests

·         complete a passenger locator form – any time in the 48 hours before arrival

 

After arrival in England:

·         Quarantine in a managed hotel and take 2 COVID-19 tests.

When an annual leave request is received, employers should:

•             identify whether the employee intends to travel overseas, and if so, to where

•             if they do, ask the employee to confirm their vaccination status.

•             consider whether, in light of their vaccination status and destination country, they will be required to isolate on return, and if it is possible to accommodate the additional absence. If not, employers may choose to refuse the annual leave request

•             when deciding whether the absence can be accommodated, consider whether the employee can work from home (or managed hotel) for the self-isolation period

•             if the absence can be accommodated, consider how it will be covered. Employers may attempt to agree an additional period of annual leave will be used to cover either all of the period, or some of it. It should be remembered that employers can require an employee to take annual leave by giving the appropriate notice, ie twice the length of the period of leave in question. This may be preferable if an employee has a substantial amount of annual leave remaining before the end of the leave year.

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

This information was updated on 1 October 2021

Your normal sickness absence and pay policy will apply to employees who have Coronavirus. SSP is now payable from day one of absence, rather than day four, for employees whose first day of incapacity due to the virus was on or after 13 March 2020, 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 four days in order to create a ‘period of incapacity for work’.

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

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 permitting the employee to work from home if possible.

If an employee is worried about catching the virus and so refuses to attend work, Acas suggest listening to the employee’s concerns and offering reassurance. Take all reasonable steps to protect the health and safety of your employees and talk your employee through what you have done/will do. A COVID-secure risk assessment should be carried out and shared with employees. Further adjustments should be made for individual employees depending on their specific circumstances.

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, or allow the employee to work from home where this is feasible.

In Northern Ireland, the equivalent of Acas is the Labour Relations Agency (LRA).

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.

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.

On 20 March 2020, the Government instructed all bars, pubs, restaurants, theatres (including cinemas), gyms, cafes, nightclubs to close as soon as they possibly could that evening and not re-open the following day. Timelines, or “routemaps” were then created for each UK country, according to which, their businesses were permitted to re-open.

On 12 October 2020, the Prime Minister announced a three-tier alert system to apply in England. Geographical areas are allocated to one of the following categories of alert: “medium”, “high” or “very high” with increasing levels of social distancing and industry restrictions. The structure of the restrictions in each tier was re-designed to apply from 2 December 2020 when the second period of lockdown ends.

Following further business closures, on 21 June 2021 all final legal limits on social contact were removed, and the final closed sections of the economy were reopened.

This information was updated on 1 October 2021

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

This information was updated on 1 October 2021

The Job Support Scheme was due to commence on 1 November 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.

This scheme came to an end on 30 September 2021. Claims under it must be made before 31 December 2021.

Since 6 April 2014, employers have not been eligible to recover any SSP paid out.

However, special rules have been implemented as part of the Government’s response to coronavirus. As part of emergency legislation introduced by the Government, the entitlement to statutory sick pay (SSP) was extended.

Originally designed for only those who were unfit for work through sickness or injury, SSP is now payable to those who are self-isolating with coronavirus symptoms though are not necessarily unfit for work, those who are self-isolating because someone they live with has symptoms, and those who have been advised by their GP or NHS to ‘shield’ for a 12 week period because they are classed as at high risk of severe illness due to their medical status.

In recognition of the significantly higher level of SSP payments that employers would, as a consequence, have to make, a new Coronavirus Statutory Sick Pay Rebate Scheme was announced which would allow certain businesses to claim back SSP paid in certain circumstances.

SCHEME ELIGIBILITY 

Businesses eligible to use the Scheme were those which:

  • have a PAYE payroll scheme that was created and started on or before 28 February 2020
  • had fewer than 250 employees on 28 February 2020
  • are claiming for an employee who is eligible for SSP due to coronavirus.

Connected companies and charities could also use the scheme if their total combined number of PAYE employees was fewer than 250 on the 28 February 2020.

Specific eligibility criteria apply to the payment of SSP, including minimum average earnings of £120 per week. It is important to note that SSP eligibility criteria was amended where it is paid due to coronavirus; waiting days are no longer needed and payment is due from day one, not day four.

Employees are entitled to SSP due to coronavirus if they are unable to work because they:

  • have coronavirus or have symptoms of it
  • are self-isolating because someone they live with has symptoms of coronavirus
  • are shielding and have a letter from the NHS or a GP telling them to stay at home for at least 12 weeks.

The Scheme only covered SSP paid due to coronavirus.  It did not allow recovery for any SSP paid for non-coronavirus related absence.

The Scheme covered 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 could be claimed for both existing and former employees.

Recoverable amount

The maximum to be claimed is two weeks’ SSP, from the first qualifying day, per employee.

Employers can claim for periods of sickness starting on or after:

  • 13 March 2020 if the employee had coronavirus or the symptoms or is self-isolating because someone they live with has symptoms and
  • 16 April 2020 if the employee was shielding because of coronavirus.

If employers pay contractual sick pay in excess of the SSP rate, they will only be able to recover up to the weekly rate paid. The weekly rate was £94.25 before 6 April 2020 and is now £95.85. It will rise to £96.36 from 6 April 2021. 

USE OF SSP REBATE SCHEME AND JOB RETENTION SCHEME

The Government’s Job Retention Scheme was put in place to assist employers to retain their workforce during the challenging times caused by coronavirus and avoid unpaid lay off or redundancy. It allows employers to furlough their employees and claim for a Government grant to cover 80% of their wage costs.

Employers could claim both for wages under the Job Retention Scheme and SSP under the Rebate Scheme for the same employee but not for the same period.

However, the guidance points out that state aid limits should not be breached. The maximum level of state aid that a business may receive under the EU Commission temporary framework is €800,000, though this may differ in certain industries like agriculture.

MAKING A CLAIM 

An online service is available from 26 May 2020 for employer to make the rebate claim. No end date for the Scheme has yet been released.

To use the service, employers will need the Government Gateway user ID received when they registered for PAYE Online.

The following is needed for a claim to be made:

  • the employer PAYE scheme reference number
  • a contact name and phone number in case HMRC need to contact the employer about their claim
  • UK bank or building society details (bank accounts provided should accept Bacs payments)
  • the total amount of coronavirus SSP the employer paid to employees for the claim period
  • the number of employees being claimed for
  • the start date and end date of the claim period.

The start date of the claim is the start date of the earliest pay period claimed for. The end date of the claim is the end date of the most recent pay period claimed for.

Employees do not have to provide employers with a doctor’s fit note in order for a claim t be made. However, employers can ask for either:

  • an isolation note from NHS 111 if they are self-isolating and cannot work because of coronavirus or
  • the NHS or GP letter telling them to shield for at least 12 weeks because they are at high risk of severe illness if they contract coronavirus.

The Scheme will allow claims for multiple employees across multiple pay periods at the same time.

Where employers authorise agents to do PAYE online for them, the agent will be able to make the claim.

An alternative way to claim will be available where employers are not able to make an online claim, however, no details have yet been released on this method.

RECORD KEEPING 

Employers must keep the following records for 3 years after the date that the rebate is received:

  • the dates the employee was off sick
  • which of those dates were qualifying days
  • the reason for the absence, whether this be that they had symptoms, someone they lived with had symptoms or they were shielding in line with NHS or GP advice
  • the employee’s National Insurance number.

This information was updated on 1 October 2021

No schools are currently closed due to COVID, and there are no restrictions on which pupils may attend.

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

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

This information was updated on 1 October 2021

On 28 May 2020, the NHS test and trace service was launched in England. 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
  • alerts those contacts, where necessary, and notify them they need to self-isolate to help stop the spread of the virus.

The Government states that, by following instructions to self-isolate, people who have had close recent contact with someone with coronavirus will be protecting their family, friends, colleagues and other people around them, and will play a direct role in stopping the spread of the virus.

When someone first develops symptoms and orders a test, they will be encouraged to alert the people that they have 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 may wish to (but is not obliged to) ask their employer to alert those colleagues. At that stage, those close contacts are not advised to self-isolate, but they:

  • must avoid individuals who are at high-risk of contracting coronavirus, for example, because they have pre-existing medical conditions, such as respiratory issues
  • must 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 will be asked, via the service, whether they have had any such close contact in the 48 hours before they developed symptoms and the time since they developed symptoms.

The service will then contact anyone they report as having had close contact with and tell them to begin self-isolation for 10 days (14 days before 10 December 2020 in Wales and from 14 December elsewhere in the UK) from their last contact with the person who has tested positive, even if they do not feel unwell, unless they are exempt from isolation because have been fully vaccinated, or are medically exempt from being so, or are under 18.

The practical effect of this service is that many more individuals are likely to self-isolate. In addition, large parts of a workforce, or an entire workforce, may receive an alert telling them they should self-isolate because one member of the workforce has tested positive for coronavirus. Employers can 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 is a legal duty and anyone under the duty who is found not to be self-isolating faces fines starting at £1000 and increasing to £10,000 for repeat offenders.

The Government has put together guidance for employers, which stresses 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 acknowledges that, although this may seem disruptive for businesses, it is less disruptive than an outbreak of coronavirus in the workplace will be, and far less disruptive than periods in lockdown.

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

If an employee needs to self-isolate, employers should consider whether they are able to work from home. This might include finding alternative work that can be completed at home during the period of self-isolation.

Employees who cannot work from home will be entitled to receive SSP in line with the guidance on self-isolation given above. Alternatively, the employer may agree 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 will provide a notification that can be used as evidence that someone has been told to self-isolate. This notification will be needed to make a claim to the SSP Rebate Scheme.

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

This information was updated on 1 October 2021

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 now need to keep records of the working hours of their staff, and their contact details, for 21 days so that the data can be provided to NHS Test and Trace if requested. These businesses include, but are 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 information was updated on 1 October 2021

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 returns for 2021. This means reporting on data from the snapshot date of 5 April 2020 (31 March 2020 for public sector). The Government will not consider implementing enforcement action for failure to provide 2021’s report until October 2021; this effectively gives employers a further six months past the usual deadlines for reporting data.

The Government has 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.

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 find that the resulting gender pay gap in hourly pay is quite different from previous years. It is important, therefore, for employers to use the accompanying narrative to explain any impact on the results caused by coronavirus.

The EHRC are to delay enforcement of gender pay gap publications, for both private and public companies, until 5 October 2021. 

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 this leave 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.

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?

It is 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. . For more information on this, see 'Mandatory vaccine in care homes in England' below

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 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 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.

Employers should also be wary of treating employees differently whilst waiting for them to be called up for their vaccination. The current Government strategy for rolling out vaccinations is partly based on age so older employees will be vaccinated at what could be a considerably earlier stage than younger employees. This could lead to complaints of age discrimination.

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.

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 employee 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.

This information was updated on 1 October 2021. 

The Social Care Working Group of SAGE advised that an uptake rate of 80 per cent in staff and 90% per cent 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 per cent 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 per cent.

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 has launched a further public consultation on whether or not to make COVID and flu vaccination a condition of deployment in health and care settings such as domiciliary care and wider healthcare settings. Until then, the legal requirement applies only to care homes.

An open letter to the Secretary of State for Health and Social Care, Sajid Javid, asks for an explanation of the legality of the aforementioned regulations in the context of existing laws which appear to prevent a legal requirement on people to receive a vaccine. Some care home owners have been sent a copy of this letter. This may well escalate to an official legal challenge against the Goverment for imposing this new law. There has already been an indication of an intention to raise a judicial review, but as yet this has not happened.

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 is 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.

Will there be exemptions for religious belief or pregnancy?

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

The Government recognises that in some circumstances, vaccination may not be appropriate during pregnancy and this will be considered in guidance regarding granting exemptions.

However, a time-limited self-certification exemption is available for pregnant employees. They should complete a self-certification form (a specific form has been created by the Government) and give this to their employers if they do not want to get the COVID vaccine.

When do care home workers have to be vaccinated by?

The law comes into force on 11 November 2021. By then, all persons within scope of the Regulations will need to be fully vaccinated in order to work in a care home unless they are medically exempt.

Who is medically exempt?

Guidance will be provided by the government to clarify who is medically exempt. It will reflect the Green Book on Immunisation against infectious (COVID-19: the green book, chapter 14a) and clinical advice from the Joint Committee on Vaccination and Immunisation (JCVI). It is likely to include those where vaccination is not clinically appropriate (e.g. a pre-existing diagnosis of anaphylaxis).

The government has announced their plans to release a new NHS COVID Pass system which workers are expected to use to apply for formal medical exemption. This system is expected to go live imminently.

Until then, workers are able to provide a self-certification for a temporary exemption from the COVID vaccine. This can be done by completing the self-certification form available on the government website and giving this to their employers. Workers do not need to get medical proof for the temporary exemption to apply. However, the temporary exemption will expire 12 weeks after the launch of the new NHS COVID pass system. Employers should accept any self-certificate forms from their staff without expecting any further medical information. But, you can ask general questions about the person’s health and what the organisation might be able to do to support them with this, in a similar way as you normally would with a welfare or return to work meeting when an employee self-certifies a sickness absence.

The government intends to produce operational guidance on to reflect the temporary exemption system. They also plan to release information relating to the steps that should be taken to mitigate the risk of COVID transmission to residents from workers who are exempt, who will be able to be deployed in the care home.

What happens at the end of the 12 week temporary self-cert exemption period?

During the 12-week temporary exemption period, workers are expected to follow the process from the new 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 and employers will need to consider how to protect them from the risks associated with Covid which is likely to be a continuation of , provided the are equipped with adequate protection measures such as PPE, masks, hand sanitisation etc.

If the worker is then unable to provide evidence of formal medical exemption once the temporary period has expired, not eligible for medical exemption, you should follow the same process outlined above to dismiss the employee if there are no suitable alternative roles available which the employee is willing to do. 

How can workers evidence their vaccinations status?

The Government intend to launch a new NHS COVID Pass system imminently which workers should use to apply for a formal medical exemption.

NHSX are considering how the NHS COVID Pass could be used to support registered persons and staff to check and demonstrate vaccine status. In the interim, registered persons can choose to use the existing COVID Pass service to review an individual’s vaccination status. The current NHS COVID Pass services are the NHS App, the NHS website (NHS.uk) and the NHS COVID Pass letter. plans to offer an option to evidence vaccination status via the NHS app. There will also be a web-based option for those who do not have access to the app because they do not have a smart phone, and there will be an option for non-digital evidence in the form of a letter.

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.

Can I refuse to recruit someone  before 11 November 2021 because they can't provide necessary evidence?

Employers taking on staff in advance of the 11 November deadline, for example in September and October, may want to make a recruitment decision based on vaccination status. Denying a job offer at that stage because evidence cannot be provided may result in the loss of otherwise good additions to the team where the individual is planning on being fully vaccinated in advance of or shortly after 11 November 2021. Job applicants should be made aware of the impending legal requirement and that 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 is medically exempt (including temporary self- certification exemptions), anyone working in a care home will be under a legal requirement to have had both doses of the vaccine.

Continuing to employ someone who contravenes the requirement is likely to 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.

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 self-certified as medically exempt but these employees must seek formal medical exemption.

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.

What might my redeployment options be?

It is clear that redeployment – 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 that also have a domiciliary care function should be aware that the Government plans to consult on introducing a legal requirement for workers in wider care settings, including domiciliary care, to be fully vaccinated. This means that any redeployment to a domiciliary care function may be temporary if the employee still does not get fully vaccinated.

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, 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 or

•          has received the first dose and has the second dose booked or

•          has the first dose and/or second booked or

•          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 have until 11 November 2021 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 11 November 2021. 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 11 November 2021 meaning the employee is unable to work for a period.

What happens if an employee has 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 are not in a position to have the second until after 11 November 2021. In these circumstances, you should consider how the interim period after 11 November 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. Where you are aware that the employee intends to get the second dose of the vaccine, it would not be reasonable to dismiss the employee for not having completed the full course of vaccinations by 11 November 2021.

I am worried that I will have a staff shortage if I lose some staff because of the 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. It is unclear yet whether further evidence will be required, via the digital and non-digital methods explained above, if the employee has already provided evidence by, for example, showing their vaccine card. Employers should be prepared for having to accommodate a separate checking system
  • 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.

This information was updated on 1 October 2021

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.

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.

Can some employees be excused from self-isolation?

Yes, though the scope of the exemption is 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 may be able to leave self-isolation under specific controls for the purpose of undertaking critical work only. Only workers who are fully vaccinated (defined as someone who is 14 days post-final dose) can be 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 wasnot intended to avoid all disruption to services that will result from the need for people to self-isolate. There is 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 should 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 werelikely 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 will be made rapidly on a case-by-case basis and kept under review.

Where a specific case meet 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 have a letter from a government department on which the workers are specifically named, employees who receive a notification via the NHS app should 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 must be double vaccinated, have a negative PCR test and agree to take daily lateral flow tests. The exemption was only be granted where workers have volunteered not to self-isolate – this means it’s an ‘ask’ situation, not a ‘compel’ situation. If employees only get SSP during isolation, it might encourage them to agree so they still get full pay.

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

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

How it works

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

  • 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

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

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

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

  • is 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 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. Employers with fewer than 250 employees can reclaim up to two weeks’ Covid-related SSP for each employee for absences before 30 September 2021 (claims must be made before 31 December 2021)
  • Where employee does not qualify for SSP, time off will be unpaid. There may be Government-led payments available dependent on circumstances.

This information was updated on 1 October 2021. 

The law allows you to cancel annual leave that has already been authorised as long as you give the minimum required notice 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.

It should be noted that, as of 17 March 2020, the UK government is advising against all but essential global travel for a period of at least 30 days.

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. 

It should be noted that, as of 17 March 2020, the UK government is advising against all but essential global travel for a period of at least 30 days.

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 should be noted that, as of 17 March 2020, the UK government is advising against all but essential global travel for a period of at least 30 days.

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.

It should be noted that, as of 17 March 2020, the UK government is advising against all but essential global travel for a period of at least 30 days.

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. 

If your company has less than 250 staff, the government has announced that it will cover the payment of statutory sick pay (SSP) for a minimum of two weeks per employee. 

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).