With the removal of all legal restrictions in England, employers are having to tear up the rule book from the past two years and start again.
Employers have a duty of care to all employees. So, whether an employee should be allowed to work with Covid is a challenging question. If an employee is wanting and willing to work, and the employer sends them home, they aren’t taking sickness absence but are medically suspended. This means they’re entitled to full pay.
There’s also the phasing out of free testing to contend with. Unless the employer is paying for testing, it’s unlikely they will be able to mandate the employee to self-test. And whilst for some people Covid-19 is a serious and potentially deadly disease, for most of the working population it can be imperceptible from a cold.
This leaves the employer in a quandary. Whilst some employers will be able to switch to a hybrid working model where employees with mild illnesses work from home until well, there are plenty of roles where this is impossible. Many sectors, including retail and manufacturing, are run with the bare minimum of employees and have no slack in the system to enable routine medical suspensions for cold symptoms.
For these sectors, where presenteeism and zero-hours contracts are already common, it’s highly unlikely that line managers would encourage absenteeism for mild Covid symptoms, whether backed up by a positive test or not. In these circumstances you’re likely to see a clash between HR cautiousness and operational requirements.
Legislative Differences
There are certainly implications for cross-border work. Requirements to self-isolate remain in Wales and Scotland (self-isolation in Northern Ireland has always been a recommendation). What this means in practice is debatable, as enforcement and spot checks of quarantine ended long ago, but we would suggest that any employee with a positive test or who has symptoms which would require them to take a Covid test in Scotland or Wales shouldn’t be travelling across the border.
This confusion applies to travel. For example, Margaret Ferrier, the now independent Scottish MP accused of travelling from Glasgow to London with Covid symptoms, would now only have potentially committed an offence for a portion of her journey. It’s already been the case for several months that train passengers must put masks on when they pass Carlisle or Bristol, having travelled for hours unmasked – rules that showcase the futility of unilaterally imposing local restrictions.
But nonetheless, this means a catch-all cross-UK policy can’t be applied. And this does have implications for sickness and the principles of fairness. Employment law isn’t a devolved matter, so applies equally across the UK. This means sanctioning an employee for isolating with Covid in England would likely be unfair treatment if a comparator in Scotland isn’t also sanctioned for self-isolating. And of course, the Scottish or Welsh comparator is legally obliged to self-isolate, and so can’t be sanctioned by an employer.
Taking Action
So, what should employers do? Obviously, case law doesn’t exist, and for the likely short period (months rather than years) that self-isolation rules are divergent, the safest and fairest option is to allow employees in England to isolate for the same amount of time as the longest comparator in the devolved nations.
If employees can work from home (and of course, symptoms permitting), it may be worth offering this as an option, especially if the employee is receiving statutory sick pay. This relieves financial pressures whilst allowing employees to ‘do the right thing’.
Whilst employers have been able to mandate face coverings for employees through the pandemic, it may be harder to do so in the near future. Many of the mask rules have seemed counterintuitive throughout the pandemic, and employer rules will face increasing resistance with mandates having dropped almost everywhere else.
On the flip side to this is the employees who may want to continue wearing masks. It may seem strange for an employer to want to ban masks, but when you think about some of the dress standards enforced to this day, nothing should be a surprise. Currently Government guidance is that employees, visitors and customers may choose to wear a face covering in any setting – the emphasis is on ‘may choose to’, rather than ‘may choose not to’.
Finally, we should be aware that many people feel a very real anxiety about Covid. Whilst this may be disproportionate to their risk factors, it’s a very real response to the pandemic and is an example of how people move along the change curve at their own speed.
An employment tribunal has already found that a fear of catching and transmitting Covid isn’t a protected belief (in the imaginatively named X v Y 2021), but should this fear develop to a state of anxiety that impacts the employee’s mental health they may be covered under the protected characteristic of Disability.
However, in this case I suspect that demonstrating their anxiety is purely driven by fear of Covid would be challenging for the employee and could only be sustained by refusal to engage with medication or therapy-based treatments.
Helping employees proceed along the change curve will be key to the post-Covid transition and clear communications will help everyone understand expectations and planned actions.
We should also not forget that a new variant of Covid or an entirely new pathogen could quickly result in restrictions resuming. So don’t shred those signs quite yet!
