United Kingdom

Authors: Ruth Bonino, Corinna Harris and Sophie Jackson

 “Fire and rehire” tactics refer to the practice of facilitating a change of employment terms by dismissing employees and then immediately re-engaging them on new terms. Increased public concern over these tactics during the Covid-19 pandemic led to demands for the government to change the law to give employees greater protection.

Although the government regards these tactics as unacceptable, it resisted demands for legislative change. Instead, in December 2021, ACAS published best practice guidance to help employers explore all other options before considering fire and rehire to change employee contracts, and to emphasise the importance of informing and consulting employees and their representatives. An employer’s failure to follow the guidance might increase an employee’s chances of winning an unfair dismissal claim – but beyond that, the guidance has no real teeth.

The new Statutory Code will set out how businesses can hold “fair, transparent, and meaningful” consultation when changing employment terms. It will also include practical steps that employers should follow.

Key Action Points for Human Resources and In-house Counsel

The introduction of a Statutory Code will not change the current law as such, but it will have more bite than the current guidance. With the Code, there will be a mechanism for tribunals to increase the compensation payable to employees where employers unreasonably fail to observe their statutory obligations to dismiss fairly and to consult and inform employee representatives. The Code will be introduced “when parliamentary time allows”.

For further information, see our more detailed update:

Government announces new statutory code to protect employees from “fire and rehire” tactics to change

Authors: Ruth Bonino, Corinna Harris and Sophie Jackson

Under UK employment legislation, an employee is protected from dismissal where there are legitimate health and safety concerns. An employee may be entitled to claim automatic unfair dismissal where they have left work, refused to return to work and/or taken appropriate steps to protect themselves and/or others from a situation which they reasonably believed to pose a serious and imminent danger, and one which could not be avoided.

The Claimant, Mr Rodgers, worked as a laser operator in a workplace roughly the size of a large warehouse. In March 2020, his employer implemented measures to combat the spread of Covid-19. These included adhering to social distancing, wiping down surfaces, staggering arrival times and putting up reminders on handwashing.  After Mr Rodger’s colleague displayed symptoms and began self-isolating, Mr Rodgers decided not to return to work “until the lockdown eased”. The reason for this was his concern for his children; a 7-month-old baby and another diagnosed with sickle cell disease.

The EAT found that tribunal had been entitled to find, on the evidence, that Mr Rodgers (who had not raised any specific workplace concerns with the employer) did not have a reasonable belief that there was a serious and imminent danger that prevented him returning to work. It had also been entitled to find that there were steps he could reasonably have taken to avert any danger.

Key Action Points for Human Resources and In-house Counsel

Although employers will welcome this decision, the case confirms that health and safety reasons relating to Covid-19 could be relevant to giving employees protection from dismissal, but that every case will need to be considered on its facts and merits.  Where the employer has followed government public health guidance it will be more difficult for the employee to take advantage of the protection offered by the law, particularly if they did not raise any specific workplace concerns at the time.

Rodgers v Leeds Laser Cutting Ltd [2022] EAT 69 (12 April 2022).

Authors: Robert Hill and Sophie Jackson

The guidance provides a brief overview of the relevant issues now that the COVID-19 rules have been relaxed. The ICO’s recommendations for employers include:

• Practices put in place during the pandemic: Reviewing these to assess whether, in light of the latest government guidance, the personal data they collect is still necessary – and that it is still reasonable, fair and proportionate to the current circumstances.
• Any additional personal data collected and retained during the pandemic: Ensuring that it is securely disposed of if it is no longer required.
• Vaccination information: If you are continuing to collect vaccination information – and there must be a compelling reason to do so – be clear about what you are trying to achieve and how asking people for their vaccination status helps to achieve this. Use of this data must be fair, relevant and necessary for a specific purpose.
• Positive COVID-19 cases in the workforce: Although data protection law does not prevent employers from keeping staff informed about potential or confirmed COVID-19 cases among colleagues, ensure that the information provided is limited to no more than is necessary and that individuals are not named.

Key Action Points for Human Resources and In-house Counsel

Employers should check the government guidance published for England, Northern Ireland, Scotland and Wales before deciding what steps to take around the use of personal information now that the COVID-19 rules have changed.

Data protection is only one of a number of factors to consider in relation to vaccination information, and employers should also take into account: employment law and contracts with employees, health and safety requirements, and equalities and human rights (including privacy rights).

Authors: Robert Hill and Corinna Harris

The ‘Working Safely during coronavirus’ guidance has now been replaced with new guidance published by the Health Security Agency for England on 1 April 2022.  New guidance for ‘People with symptoms of a respiratory infection including COVID-19’ and on ‘Living safely with respiratory infections, including COVID-19’ and was also published on 1 April 2022.  There is separate guidance for Scotland, Wales and Northern Ireland.  Universal free testing for all has also now ended.

Employers continue to have a legal duty to provide a safe place of work and manage risks to those affected by their business. While the requirement for every employer to explicitly consider COVID-19 in their health and safety risk assessment has been removed, employers may choose to continue to cover COVID-19 in their risk assessments in any event.  The guidance for employers continues to stress the importance of good ventilation and maintaining a clean workplace, and encouraging and enabling employees to get vaccinated.

People who test positive for COVID-19 or have symptoms of a respiratory infection such as COVID-19 are advised to try to work from home if they can.  Employers, in accordance with their legal obligations, are encouraged to consider how best to support and enable their workforce to follow this guidance as far as possible.

Employers should continue to consider the needs of those who are at greater risk of serious illness from COVID-19, such as those with compromised immune systems. There is specific guidance for people whose immune system means that they are at higher risk, because they have a reduced ability to fight infections, such as COVID-19.

Key Action Points for Human Resources and In-house Counsel

The responsibility is now more on individuals and businesses to put in place measures that they think are appropriate given their particular circumstances and health and safety risks – guided by the guidance mentioned above.  Taking an approach that goes against the guidance could put employers at risk of claims and other employee issues.

Employers should decide what measures are appropriate to take in their workplace following these changes. They should also communicate with employees about what steps are being taken and any expectations of employees going forwards.

There are some tricky issues for employers to grapple with as we move to the next phase of ‘Living with COVID-19’.

Authors: Charles Urquhart and Corinna Harris

In addition to a return to work, in England:

• The compulsory use of the NHS COVID pass ended on 27 January but venues may use them if they wish
• The mandatory wearing of face coverings ended on 27 January but the government suggests people continue to wear a face covering in crowded and enclosed spaces where they may come into contact with other people they do not normally meet
• Self-isolation rules for people who test positive with Covid-19 remain in place for now but Ministers expect the self-isolation rules could be removed by the end of February, although guidance may remain
• From 11 February eligible fully vaccinated travellers entering the UK no longer need to take a post-arrival lateral flow test; for those who do not qualify as fully vaccinated, they will only need proof of a negative Covid test taken 2 days before travel but must also take a post-arrival PCR test. Passenger locator forms must still be completed by all arriving passengers; fully vaccinated continues to mean 2 doses of an approved vaccination, or 1 dose of the Janssen vaccine; under 18s continue to be treated as eligible fully vaccinated passengers.
• From 10 January 2022 a precautionary testing scheme has been launched for critical workers in national infrastructure, national security, transport and food distribution and processing, where lateral flow tests are sent directly to their workplaces to enable testing on every working day.

In Scotland, employers have been asked to phase workers back into spending some time in the workplace from 31 January.

Separately, the Statutory Sick Pay Rebate scheme for SMEs has been reintroduced.  whereby employers with fewer than 250 employees can claim up to two weeks’ Statutory Sick Pay (SSP) per employee for Covid-related sickness absences.   The scheme applies to any days of incapacity after 21 December 2021. The Scheme will end on 24 March 2022, which is the last date for claims to be submitted to HMRC.

Finally, the UK government has published a consultation on revoking vaccination as a condition of deployment in health and social care in England. Since 11 November 2022 workers in  Care Quality Commission (CQC) regulated care homes in England must be vaccinated against COVID-19, unless they are exempt.  Regulations also extend mandatory vaccination to workers in the health and social care sector who have face-to-face contact with service users, from 1 April 2022.

The government’s intention is to revoke mandatory vaccination. However, it considers that workers in the health and social care sectors have a professional duty to be vaccinated against COVID-19, so is taking a number of steps to encourage workers to get vaccinated. The consultation closed on 16 February 2022.

Key Action Points for Human Resources and In-house Counsel

Employers should follow the Working safely during coronavirus guidance and Coronavirus: safer businesses and workplaces for England and Scotland respectively, and continue to follow statutory health and safety requirements, conduct a risk assessment and take reasonable steps to manage risks in their workplace. For further details, see our update: COVID-19: Working from home guidance lifted in England with immediate effect.