United Kingdom

Any officer workers who can work from home should do so, but those who cannot, should continue to go into work – for example, to access equipment necessary for their role or where their role must be completed in person. The ‘Coronavirus: how to stay safe and help prevent the spread’ guidance has been updated to reflect the latest guidance in England.

The UK government acknowledges that in-person working will be necessary in some cases to ‘continue the effective and accessible delivery of some public services and private industries.’ Workers are being advised that if they need to continue to go into work, they should consider taking lateral flow tests regularly to manage their own risk and the risk to others.

The work from home guidance is guidance and not law so people will not be committing an offence by coming into the office when they could have worked from home, but employers need to keep in mind their health and safety obligations.

Key Action Points for Human Resources and In-house Counsel

Employers should consider what processes they will put in place for employees to work from the office e.g. will employees need to explain why they need to work from the office or will it be left to their discretion. Employers should also check the Working Safely During Coronavirus guidance regularly for more information about the changes to restrictions that have been introduced in response to the Omicron variant and to ensure they are complying with the latest workplace health and safety recommendations.

On 9 November 2021, following a public consultation, the Department of Health and Social Care announced that providers of CQC regulated activities in the health and social care sector must only deploy individuals who have been fully vaccinated against COVID-19 into roles where they have direct, face to face contact with patients and service users.  The decision follows the mandatory vaccination of care home workers which came into force in England on 11 November 2021.

The proposals extend mandatory vaccination requirements to all health and social care workers such as doctors, nurses dentists and domiciliary care workers. The new rules will also capture non-clinical workers not directly involved in patient care such as porters and cleaners, receptionists and ward clerks.  The rules will apply whether the individual delivers their services directly, through an agency or if they are contracted to another provider. They will also cover trainees and volunteers.

The government’s announcement stated that the requirements will come into force in the spring, subject to the passage of the regulations through Parliament. There will be a 12-week grace period between the regulations being made and coming into force to allow those who have not yet been vaccinated to have both doses. Enforcement would begin from 1 April, subject to Parliamentary approval.  The government hopes this plan will allow time for health and social care providers to prepare and encourage workers uptake before the measures are introduced.

Key Action Points for Human Resources and In-house Counsel

Mandatory vaccinations are now required by law in England in the care home sector, with the health and social care sector soon to follow, but this is currently not the case for roles outside those sectors. This is unlike the position in a number of other countries around the world where mandatory vaccination appears to be gathering momentum.  In the UK the government currently only advises encouraging employees to take up the vaccine and notes that vaccinations are not suitable for everyone. There are a number of legal risks to consider when implementing a mandatory vaccination policy and employers should tread very carefully weighing up those risks against their health and safety obligations.  The first step should be to undertake a detailed health and safety risk assessment.

Government to introduce COVID-19 vaccination as a condition of deployment for all frontline health and social care workers – GOV.UK (www.gov.uk)

The UK government has published its COVID-19 response autumn and winter plan 2021.

The government’s Plan A relies on building the country’s defences through vaccines and other pharmaceutical interventions; continuing to use “Test Trace and Isolate”; protecting the NHS; giving clear guidance to people and businesses on how to protect themselves; and helping vaccinate the world and manage risks at the border.

As people begin to return to the workplace, businesses are advised to follow the government’s Working Safety guidance to reduce risk of transmission.  This guidance should be considered when preparing health and safety risk assessments and putting in place suitable mitigations.  In particular, the plan:

• Reminds employers that they must not ask or allow employees to come to work if they are required to self-isolate.
• Encourages employers to:
  • Ask employees to stay at home if they are feeling unwell
  • Ensure there is an adequate supply of fresh air to indoor spaces (including taking steps to improve airflow in poorly ventilated areas)
  • Provide hand sanitiser and clean surfaces which people touch regularly
  • Display an NHS QR code poster for customers to check in using the NHS COVID-19 app
  • Consider using the NHS COVID Pass.

The government’s autumn and winter plan includes contingency plans (“Plan B”) in the event that measures are needed to prevent “unsustainable pressure” on the National Health Service.

The measures that may be introduced under Plan B include:

• Introducing mandatory vaccine-only COVID-status certification in certain settings
• Making it mandatory to wear face coverings in certain settings
• Asking people to work from home if they can, for a limited period

However, the government recognises that homeworking causes disruption and has significant costs implications for businesses and the economy, so a final decision on home working will be made in light of the Covid data at the time.

Key Action Points for Human Resources and In-house Counsel

It is possible that workers who can work from home will be asked to do so over for a limited period over the autumn/winter. The government is providing details now of measures that may need to be introduced in the autumn and winter, so that businesses know what to expect and can prepare for this.

A tribunal found that Mrs Mhindurwa, who worked as a care assistant, was unfairly dismissed when Lovingangels Care Limited refused to consider furlough and made her redundant in July 2020. The tribunal accepted that there was a genuine redundancy situation since the work she was employed to do had diminished. That said, given the whole purpose of the CJRS was to avoid redundancies, the tribunal found that in July 2020, a reasonable employer would have considered furlough as an alternative to redundancy. It was significant that the employer could not explain why furlough was not considered (or was not considered suitable) for Mrs Mhindurwa and did not appear to have considered furloughing her temporarily to see whether work became available.

However, another tribunal reached a different conclusion on a different set of facts.

Mr Handley worked for a small private airfield where he provided private flying lessons and flight experiences. Shortly after the first lockdown was announced, Tatenhill Aviation Limited decided to close the flying school. It agreed to furlough Mr Handley “for a period of three weeks initially or until [he] could return to work as normal”. The business had been struggling financially pre-pandemic and, in April 2020, it began to consider redundancies. The flight training part of the business had no income at all and they envisaged this would remain the case for the foreseeable future. Mr Handley was made redundant in August 2020 and brought a claim for unfair dismissal, arguing that the furlough agreement prevented his redundancy. The Tribunal disagreed. It accepted that the employer needed to cut costs irrespective of the CJRS and that it wanted to use the CJRS to pay some of the costs of the redundancy. Although another employer may have chosen to leave Mr Handley on furlough for longer, the tribunal found that the employer’s decision was within the range of reasonable responses open to it on these facts, and the decision to dismiss despite the existence of the CJRS did not make his dismissal unfair.

Key Action Points for Human Resources and In-house Counsel 

Cases concerning whether furlough should have been used as an alternative to redundancy are fact sensitive. These decisions are from first-level Employment Tribunals, so are not binding on future tribunals, but they suggest that tribunals may expect employers to have considered furlough when contemplating redundancies. Although it is not necessarily unfair to make an employee redundant while the CJRS exists, it may be unfair if furlough is not considered as an alternative or a good explanation cannot be provided as to why furlough was considered and was rejected.

Mhindurwa v Lovingangels Care Limited

Handley v Tatenhill Aviation Limited

For employees recruited after 1 July 2021, UK employers will no longer be able to accept only an EEA or Swiss passport or relevant National ID Card as evidence of a lawful right to work in the UK. Instead, they will need to see proof of immigration status which will include but not necessarily be limited to eligibility under the EU Settlement Scheme or the UK’s new Points Based System (PBS) immigration framework. On a separate note, temporary changes to the rules governing the employer’s duty to check and document a worker’s right to work in the UK have been in force from 20 March 2021 due to the pandemic. These temporary changes will remain in force until 31 August 2021.  

Brexit: The UK left the EU on 31 January 2020 and entered into a transition period which ended on 31 December 2020.  During the transition period, free movement continued between the UK and the EEA and Switzerland.  Those EEA and Swiss citizens, and where relevant eligible non-EEA / Swiss dependent family members, residing in the UK by 31 December 2020 could apply for immigration status under the EU Settlement Scheme to enable them to continue to live and work in the UK. Applications for immigration status under the Scheme needed to be submitted by 30 June 2021, albeit there are provisions facilitating applications post that date if specific criteria are met. Applicants could apply for Settled Status (if they had been in the UK for five continuous years immediately preceding the application or in certain circumstances for a historic continuous five year period) or Pre-Settled Status (if they had been in the UK for less than five years). As is the case for non-EEA / Swiss nationals, EEA / Swiss nationals commencing employment / work in the UK after 1 January 2021 will need to meet the requirements of the new PBS, rolled out in full for applications submitted from January 1 2021 or other UK Immigration categories.  

COVID-19: Employers have a statutory duty to prevent illegal working and must carry out certain checks to ensure employees have the right to live and work in the UK.  Temporary changes, in place since 30 March 2020, have facilitated right to work checks to be carried out by prospective employees sending scanned copies of compliant ID documents via email, followed by a confirmatory ID video call.

As in pre COVID times, Employers would also have the right where eligible and with the employee’s consent, to conduct right to work checks online utilising the Home Office portal.

From 1 September 2021, employers must once again either:

• Check the applicant’s original documents in the employee’s physical presence and retain certified copies, or
• As above, check the applicant’s right to work online via the Home Office’s portal, if they have given the employer their share code.

Key Action Points for Human Resources and In-house Counsel 

Employers should review existing right to work policies and procedures ensuring they meet the new requirements for employees of all nationalities commencing employment post-30 June 2021. Separately, post-31 August 2021 the COVID concessions will end requiring employers to reinstate previous requirements to check and document an employee’s right to work.