‘Freedom day’…but what does that really mean for employers?

Freedom day

This week is billed as ‘freedom’ in England, but with half a million, mainly double jabbed employees, isolating on advice from the NHS Test and Trace app, you might be forgiven for not noticing. What barriers to ‘freedom’ are UK employers confronting?

Test and Trace

Many businesses will remain closed, or at least not fully open, while they struggle to engage staff pinged by the advisory (note: advisory) app. But over the weekend it was reported that this would not apply to NHS staff who are pinged and double jabbed, to ensure continuity of essential services. From 16th August no double jabbed employee will have to self-isolate.

So if you’re in the NHS, a ping doesn’t require isolation if you’re double jabbed. And if you’re double jabbed and get pinged on 16th August, even if you don’t work for the NHS, you won’t have to isolate. But on the 15th you will – until the 25th under current rules. Does this make any sense to you? Doesn’t to me.

“Over-guidance” and lack of guidance on common employer/employee issues

There’s another problem with ‘freedom day’ for employers, which is the practically useless government guidance that promotes ‘freedom’ on the one hand, while effectively imposing restrictive covid-related safety measures ‘guidance’ on workplaces with the other.

A line in the .gov guidance on what ‘freedom day’ means (you can see it here from this link) reads:

“Organisations should ensure they are in compliance with all legal obligations, including on equalities.”

The same page contains a link to ‘working safely’ guidance (you can see the working safely guidance through this link) which looks pretty much the same as it did before and, while it is guidance and not law, many employers will fear that divergence from it may have legal consequences. The ‘working safely’ advice is wide-ranging, from the use of CO2 monitoring equipment to identify areas with less ventilation, to providing guidance on how to use face masks, and to advise employees to change them if inadvertently touched.

The guidance extends to pages and pages of text, and this creates problems for smaller employers in particular. Firstly, many employers fear that breaking the guidance, even in the most minor way, may lay them open to claims. For this reason, mindful of the responsibility to ensure “compliance with all legal obligations” some, particularly smaller, employers may decide not to require employees to return to their workplaces, even if this is to the detriment of performance and of the employees themselves. Secondly, many employees who are reluctant to return to the office will trawl through the guidance to try and identify a reason not to return – we’ve already seen that happening with a number of our clients.

Larger employers will have less difficulty, as effectively covid-compliance will become somebody’s job, but for smaller businesses with owner-managers and less controllable premises, complying fully with the guidance is more challenging. This isn’t a problem that’s set to go away on August 16th and employers would welcome some assurances as to what they can, and cannot expect to be able to do about non-vaccinated employees. Is an employer mandated to adopt stringent covid workplace protocols effecting everyone, when only one employee out of an entire office refuses to be vaccinated? Under what circumstances would an employer be permitted to refuse a request for homeworking from a non vaccinated (by choice) employee? And would it be different if the employee was not vaccinated because their doctor advised them not to be?  (‘yes’, in case you were wondering!)

The ‘fear/science’ issue

The government set out to increase the public’s fear levels to encourage lockdown to be effective, and there is little argument that this worked well, perhaps too well. The apparently accepted science seems to suggest that double jabbed people are less likely to suffer serious covid effects, and that as more and more people are vaccinated the virus will have nowhere to go. ‘Freedom,’ in an employment context, must mean workplaces operating essentially as they did prior to covid, a far cry from the myriad of disruptive measures encouraged by the ‘working safely’ .gov guidance.

It’s not all about science either – the government has told us we need to learn to live with the risk of covid, and over the last couple of weeks we’ve seen a capacity Wembley and some capacity crowds at Wimbledon. This weekend a third of a million people circulated through Silverstone. At the same time, employers are expected to follow the government’s extensive workplace guidance which seeks to minimise contact which will seem non-sensical to many. Some may say that the sporting events were largely in outdoor arenas, but it would surely be difficult to argue that a stadium packed with a vocal and excited crowd was any less risky than an averagely ventilated office?

Whether the fear exceeds the real risks is debatable of course, but there are massive missed messages being conveyed at the moment, with sell-out crowds denoting freedom, and government guidance appearing to say the opposite.  While fans cheered at Wembley, Boris Johnson appealed for caution, and while a third of a million mingled at the grand prix, government websites contain pages of ‘guidance’, including suggesting offices adopt one-way systems, utilise home working and stagger working times.

Accommodating non-vaccinated people

No employer should subject a non-vaccinated person to a detriment, whether their refusal is for a medical reason or simply exercising a choice not to have the vaccine. Sensible employers will accommodate any employee’s flexible working request where they reasonably can, noting that the right to request flexible working is, for the time being at least, a right purely bestowed upon employees (and not contractors or workers). But flex working requests are one thing, and having to adapt onerous workplace adjustments to accommodate a non-vaccinated person is entirely another. Here the circumstances of the individual are important. An employer is under a duty to try and find adjustments to accommodate a person’s disabilities, but that same employer is likely to be given more leeway when the non-vaccinated person has opted not to take the vaccine for other reasons.

That employer may be forgiven for questioning whether staff who choose not to have the jab should reasonably expect their colleagues to be substantially adversely impacted by their decision e.g. by forcing the use of disruptive systems of work. In the case of homeworking, would it be fair to let a non-vaccinated (through choice) staff member work at home, when their vaccinated colleagues are not allowed to?

These are the kind of issues facing employers across the UK, and while we can offer advice to employers based on what seems consistent with past case-law, it would be extremely helpful for government to provide some more concrete guidance on the most common scenarios for the benefit of clarity for employers and their staff. In the meantime and in the absence of official guidance, myHRdept and other advisors will continue to work with employers to achieve sensible workplace solutions.

Resources referred to in this article:

https://www.gov.uk/guidance/covid-19-coronavirus-restrictions-what-you-can-and-cannot-do

https://www.gov.uk/government/publications/covid-19-response-summer-2021-roadmap/moving-to-step-4-of-the-roadmap

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