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What is currently known about the Omicron variant?

Omicron is a new COVID-19 variant, which was designated as a “variant of concern” by the World Health Organisation on 26 November 2021.  Omicron has several novel mutations which may affect the way it behaves.

It is not yet clear whether Omicron is more transmissible and/or causes more severe disease than other COVID-19 variants, such as Delta.  The press reports that Omicron was first identified in South Africa and the number of people testing positive for COVID-19 has risen in parts of the country affected by the new variant.  We understand from press reporting that early evidence also shows that there are increasing rates of hospitalisation in South Africa, although this could be due to the overall increase in infections as opposed to the severity of Omicron itself.

Reports show that there is some evidence to suggest that those who have previously been infected with COVID-19 could become re-infected more easily with Omicron, as compared to other variants.  It is also not yet clear how the existing COVID-19 vaccines will stand up to Omicron.  Further research is underway on all of these issues and more information should be available in the coming weeks.

Has Omicron reached the UK?

Yes.  At the time of writing, the UK has reported that 42 people have been infected with the Omicron variant.  Cases have been found across the country including in Buckinghamshire, Cambridgeshire, Clyde, Essex, Glasgow, Hertfordshire, Lanarkshire, Lancashire, London Merseyside, Norfolk, Northamptonshire, Nottinghamshire, Oxfordshire and Surrey.  Perhaps unsurprisingly, the majority of cases have been reported in London.

Does Omicron mean that office-based staff must now work from home?

Not necessarily.  “Freedom Day” on the 19 July 2021 was the date that the Government reached Step 4 of its roadmap for unwinding its COVID-19 restrictions.  From that date, office-based employers were able to return workers to the office on a gradual basis.  Many have done this over the late Summer and Autumn months, although many have opted to retain a degree of hybrid working.

The Autumn and Winter plan, published in September 2021, set out the measures the Government would adopt to manage COVID-19 through the Autumn and Winter months.  This plan included contingency measures – a “Plan B” – to be followed in the event of unsustainable pressure on the NHS.  This included a statement that the Government would consider asking people to work from home if they can, for a limited period.

Despite the concerns about Omicron, the Government has not yet triggered its Plan B measures.  Accordingly, employers in England may continue to ask staff to work in the office.  Indeed, the current version of the “Working Safely During Coronavirus Guidelines” (the Guidelines), updated on 2 December 2021, simply says that employers should assess the risks of staff working in the office and take action to manage the risk of COVID-19 spreading at work.

It is worth noting that the position is slightly different in Scotland.  On 29 November 2021, the Scottish First Minister, Nicola Sturgeon, said that employers should ensure that they are maximising home working.  The Scottish Health Secretary also advised people to work from home where possible.  However, this advice is guidance only and does not represent a legal prohibition on individuals leaving home to attend the workplace.

Above all, however, employers should remember that they must comply with their legal obligations to ensure the health, safety and welfare of staff and third parties so far as is reasonably practicable.  This is particularly important in relation to vulnerable and pregnant workers, who may require special measures to be taken to protect them, including allowing them to work from home.

Where staff do come into the office, should they wear face coverings to protect them from Omicron?

It’s not compulsory.  In response to Omicron the Government has re-introduced the requirement to wear face coverings in shops, premises that provide close contact services, transport hubs and on public transport.  However, there is no legal requirement to wear them in any other indoor setting, including offices.

However, the Guidelines state that office-based employers may wish to encourage the use of face coverings by workers particularly in areas where they come into contact with people they do not normally meet.  This is said to be especially important in enclosed and crowded spaces (for example, lifts and corridors).  Where masks are to be used, consideration should be given to making adjustments for disabled staff and to the fact that some people are unable to wear face coverings.

Have the rules on self-isolation changed?

Yes.  Guidance introduced on 16 August 2021 had exempted certain groups of people from the requirement to self-isolate where they have been in contact with a positive case of COVID-19.  These exempt groups are:

• those who are fully vaccinated against COVID-19 (i.e. at least 14 days have passed since the individual received all of the recommended doses of the vaccine);
• those aged below the age of 18 years and six months;
• those who have taken part or are currently part of an approved COVID-19 vaccine trial; or
• those who are unable to be vaccinated for medical reasons.

However, the rules on self-isolation have been changed in response to the Omicron variant.  Now, anyone who is a contact of a suspected or confirmed Omicron variant case (as notified by NHS Test and Trace) must self-isolate for ten days, even if they fall into one of the exempt categories listed above.  However, these groups will remain exempt from isolation where they have been in contact with a positive case of other COVID-19 variants.  You can read more about exemption from self-isolation here.

What’s the position for overseas travel?

Overseas travel is still possible to most places, but the rules have been tightened up in an attempt to stem the flow of Omicron into the UK.

First, all international arrivals into the UK must now take a private PCR test within two days of arrival and self-isolate until they receive a negative result.  If they receive a positive result, they must self-isolate for ten days.  These rules apply to all individuals, including the double-vaccinated (who had previously been able to take cheaper lateral flow tests and avoid self-isolation unless they tested positive).

Second, a number of African countries have been added to the UK’s “red list” for travel.  These are: South Africa, Angola, Botswana, Eswatini, Lesotho, Malawi, Mozambique, Namibia, Zambia and Zimbabwe.  Arrivals from these countries must take a PCR test before they travel to the UK and must quarantine in a managed hotel for ten days on arrival.

In light of these changes, employers may wish to limit overseas business travel for the time being, and certainly to the countries on the red list.

Do we need to cancel the Christmas party?

No, but some precautions should probably be considered.  Although there are no rules in place restricting indoor hospitality or socialising between households, the Head of the UK’s Health Security Agency (and former Deputy Chief Medical Officer), Jenny Harries, advised caution.  She said that people should “avoid socialising when [they] didn’t particularly need to”.  Yet the Prime Minister has said that Christmas parties do not need to be cancelled and that there will be no change to the advice about how people live their lives.

A sensible approach would be to consult with staff to see what they would like to do.  One option might be to hold several smaller team events, rather than a whole office event.  Where events do go ahead, safety measures should be considered such as ensuring the venue is well ventilated and asking staff to:

• take a lateral flow test before attending;
• sanitise their hands upon arrival;
• wear face masks in crowded areas (e.g. lifts or queues for cloakrooms); and
• limit physical contact.

What else do employers need to consider in light of Omicron?

Employers should monitor Government guidance closely over the coming weeks given that the situation may change rapidly as more is learnt about the Omicron variant.  Risk assessments should be kept under review and updated as necessary if research suggests that Omicron is more transmissible and/or more severe.

In addition, where employers provide information about vaccines to staff, this should be updated to reflect the fact that booster jabs are available now to everyone aged 40 or over (and are due to be extended to those in the 18 to 39 age bracket).  At present, booster jabs are available six months after a second vaccine dose, but this will be reduced to three months in due course.  Any vaccination policy should also be amended to reflect booster jabs (e.g. to confirm that employees will be given paid time off to attend booster jab appointments).

BDBF is currently advising many employers on the challenges presented by the coronavirus.  If you or your business needs advice on any coronavirus-related matter please contact Amanda Steadman (amandasteadman@bdbf.co.uk) or your usual BDBF contact.

 

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After a year off, office Christmas parties are back and – Omicron permitting – look set to be bigger than ever in 2021. While this is a great opportunity for the team to get together in person after being isolated for much of the past two years, employers need to ensure that the celebrations include the whole workforce.

The risks of getting it wrong range from a disgruntled less productive workforce and flight risks, to  employment tribunal claims of discrimination and constructive dismissal to name a few.

Making the Christmas party a truly inclusive event takes more than ensuring that everyone is invited. While care should be taken to ensure that no one is missed from the guest list (consider, for example, staff who are on long-term sick leave or maternity / other forms of family leave), it is also important that staff know the event is voluntary. There may be many reasons people don’t want to attend the party, and it should be made clear that they will not suffer a disadvantage if they choose not to attend.

Each workforce is individual. Accordingly, it is important for employers to speak to their staff about what they will enjoy. After all, this is supposed to be a celebration and a reward for hard work. For smaller organisations, this can be done in a team meeting, whereas larger organisations may need to form a committee made up of different sections of the workforce. As well as talking to staff beforehand, it is important to obtain feedback after the event that can be used to plan future events.

As a starting point, Senior Associate Clare Brereton sets out below some guidance on matters employers should consider each party season.

1. Name of the party

For some people, the very fact that their employer is having a “Christmas” party at all could make them feel excluded. The UK is made up of people of many different faiths, who practice their faith in different ways and others have no faith.

Given the time of year, it is likely to be difficult to avoid any mention of “Christmas”, but Christmas does not need to be the focus of the event. For example, replace “Christmas” with “festive” or “winter” party. The menu does not need to include a Christmas dinner. Traditions such as Christmas crackers and “Secret Santa” could be replaced with other games, such as word games or an awards ceremony celebrating special achievements over the past year. Christmas music does not need to be played (and, indeed, many party attendees may welcome the break).

2. The day and date of the party

Although it is likely to be almost impossible to select a day and time when everyone who wants to attend the party can do so, there are steps that an employer can take to ensure groups of people are not excluded. It is important to avoid having the party on a date that clashes with a religious holiday as employees of those faiths will have other commitments on those days.

When looking at a date more generally, there are some factors that need to be considered. For example, there may be one day of the week which is the non-working day for the majority of an employer’s workforce, and it would be sensible to try and avoid having the party on that day. If there are Jewish employees who observe Shabbat, then holding the party on a Friday evening would mean that they would not be able to attend. If the event is in the evening, some employees may struggle to find childcare.

If possible, employers should consult with the workforce in good time to identify whether there are any dates and/or days of the week on which they would not be able to attend the party. Once a date is set, give staff as much notice as possible.

3. Venue of the party

The location of the party is also significant. Physical features of a venue can make it more difficult for people with certain disabilities to attend. The need for the party space to be wheel-chair accessible is likely to be high on the list of an employer’s requirements, but employers should also consider what the noise levels and atmosphere of the venue will be like when it is full of people. If loud music will be playing it can be more difficult for wheel-chair users or those with certain conditions (including ADHD) to participate in conversations, particularly if the venue is crowded.

Employers also need to take care to consider employees with hidden disabilities. The past year has been very difficult for many people, and some employees may experience social anxiety at the prospect of a crowded party space, especially given the arrival of the Omicron variant. Therefore, consider the size and capacity of the venue and whether it is feasible to have the party in a larger venue which permits social distancing and has natural ventilation.

Employers might wish to take other steps to ensure the heath and safety of their employees is safeguarded during this time, for example asking employees to take a lateral flow test before attending the party and to wear face coverings in particularly crowded areas (e.g. lifts or queues for the cloakroom).  And, of course, anyone experiencing COVID-19 symptoms should be told not to attend.

4. Alcohol 

The stereotypical office Christmas party involves warm white wine, some crisps and people standing around chatting. While the quality of the catering is often of a higher standard than this, difficulties can arise if the party is too focused on alcohol.

There are many reasons why people do not drink alcohol, including pregnancy and breastfeeding, religious, cultural and health reasons. While banning alcohol altogether is unlikely to be necessary, it is important to ensure that there are high quality non-alcoholic drinks available and that the format of the party is not such that the only “activity” is drinking. Employees should not feel pressured into drinking more than they want to and it is important that it is made clear that harassment of other colleagues will not be tolerated.  You can read more about how employers can manage the risk of harassment here.

5. Catering

Food is a vital part of all parties, but hosting an inclusive event involves more than making sure there are vegetarian options available. Many venues are used to catering for a wide range of dietary requirements (e.g. vegan, kosher, halal, nut-free, gluten-free), so it should not be difficult for employers to ensure that all of their staff are catered for.

The easiest thing to do is to ask employees what their dietary requirements are before selecting a venue, so that you know in advance whether your chosen venue can meet those requirements.

And finally…

While it is important to remember the risks of getting it wrong, hosting a successful party at this time of year can be hugely beneficial to morale. A good employer will know its workforce and the type of event that staff will enjoy. Start by considering what would be a suitable celebration for your organisation and go from there. If in doubt ask the workforce for suggestions, there could be a great idea just waiting to be discovered!

If you would like to discuss any issues relating to the content of this article, please contact Clare Brereton (clarebrereton@bdbf.co.uk), or your usual BDBF contact.

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The festive season is upon us and many are ready to embrace once again the annual Christmas party as we emerge from the restrictions of the pandemic.

Whilst most events go ahead hitch free, unfortunately incidents of inappropriate behaviour are not uncommon at these types of functions. Reports of sexual harassment often increase at this time of year. This can result in employers having to field serious complaints and investigate members of staff who have overstepped the line.

Shockingly, 72% of the UK population have experienced at least one form of sexual harassment in their lifetime and 29% of employed individuals experienced sexual harassment at work. Soberingly, statistics show that only 15%formally reported this to their employer.

As employers are liable for the conduct of their employees and have a duty to safeguard the health and safety of employees, it is important that employers take steps to prevent and deal with inappropriate behaviour. In this briefing, BDBF Associate Blair Wassman explores what constitutes harassment and sexual harassment, and what steps employers can take ahead of the end-of-year festivities.

What is harassment?

Harassment is unwanted conduct related to a protected characteristic (for example, sex, race or sexual orientation) which has the purpose or effect of either violating the victim’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment.

Sexual harassment is unwanted conduct of a sexual nature, which includes unwelcomed touching, sexual comments or jokes, suggestive looks or gestures and propositions and advances.

What does the law say about liability?

As a general rule, employers are liable for their employee’s actions.

It is a myth that where functions happen outside of the office employers are no longer liable for their employees’ conduct. Whilst this may be true in some instances, the default position is that employers are vicariously liable for acts of harassment committed by their employees during the “course of their employment” regardless of whether the employer knew or approved of the acts. This includes acts which are performed out of the employer’s premises, for example, whilst employees are working remotely as well as at work social functions which take place after hours.

This means that countless employers have found themselves liable for the acts of employees which have occurred at the pub after work, or, indeed, at Christmas parties. However, employers do have a defence available to them. If an employer is able to demonstrate they took all “reasonable steps” to prevent the perpetrator from doing the particular act, they may avoid being held liable.

Such reasonable steps can include:

• effective anti-harassment policies;
• appropriate reporting procedures and management of complaints;
• regular training for managers; and
• protection of victims.

Tips for employers

To try to avoid such misbehaviour and limit risks, employers should consider taking the following steps:

• Conduct a risk assessment: think about the venue and whether there are areas which are concealed (maybe re-think the dark photobooth in the far corner!). Consider how employees will get home following the function, for example, could you assist with a taxi service?

• Lead by example: encourage senior staff to limit their alcohol intake and to keep interactions professional. If they witness inappropriate behaviour, they should not turn a blind eye, but intervene if necessary and also report the acts to HR.

• Timing: consider whether a lunch or afternoon event is more suitable than the traditional evening party, which may, in turn, limit alcohol consumption and risk of harassment.

• Don’t authorise “after parties”: as tempting as it may be to continue the celebrations after the official work function, it is advisable for employers to distance themselves from “after parties”. This includes expressly stating that the official function is the only function funded and approved by the employer and any events afterwards are not sanctioned by the employer and discouraged for the safety of all employees.

• Remind employees of what is expected of them: a reminder about workplace policies related to harassment before such events is helpful, as well as the procedures which are in place to deal with any concerns.

• Take complaints seriously: if you receive complaints following such events, ensure that they are properly investigated and treated with the necessary degree of confidentiality and sensitivity. Reassure the victim and put mechanisms in place to ensure their protection, if necessary.

• Be supportive and have open communication lines: try to foster a culture where employees are not fearful of complaining about incidents of harassment. Appoint workplace champions and encourage employees to come forward about such incidents.

• Hold offending parties accountable: gone are the days where employers can write-off unwanted interactions as “banter”. If employees have committed acts of harassment, regardless of their seniority, they should be held accountable and disciplined if they are found to be guilty.

Like most things in life, prevention is better than cure. Employers giving careful thought to their end-of-year functions, and following these recommendations, is certainly time well spent. It also demonstrates to employees that their wellbeing and safety at such events is important, and provides a warning to those who may be tempted to step out of line.

If you would like to discuss harassment or any issues relating to the content of this article, please contact Blair Wassman (blairwassman@bdbf.co.uk), or your usual BDBF contact.

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After an enforced hiatus, the in-person office Christmas party is returning this year and, for many, not even Omicron will stand in the way.  BDBF Associate, Theo Nicou, sets out his top tips to help employees make it a night to remember and not a night to forget.

Questionable behaviour at parties may not be new to employers, but they will certainly be out of practice after a long period of home-working and very few social events. It is not uncommon for misbehaviour at events to create an employee relations headache.

As an employee, it is important to remember that while Christmas parties are a social affair, they are still work events. Your conduct should reflect that. Your actions on the night can have lasting consequences.

Here are some top tips to make sure the night goes smoothly.

• Be mindful of your use of social media, including posting images of colleagues on public forums without their consent. What you may consider funny, others may consider embarrassing or offensive.

• When buying a “Secret Santa” gift for a colleague, think about how it might be received. It is best to avoid anything that could be considered offensive, especially if you don’t know the recipient very well.

• Consider watching your alcohol intake as excessive drinking can lower your inhibitions. Your professional reputation is important. Remember that your actions have consequences and impact your fellow colleagues too.

• Report any inappropriate, unwanted behaviour. This includes behaviour that you are subjected to or that you witness. You should review your employer’s policy about the appropriate process to follow.

Christmas parties are the perfect opportunity to catch up with colleagues, and maybe even meet new ones in person. This year is especially important given how physically distant we have been in recent times. And hybrid working leads to less face-to-face time with colleagues, meaning it is all the more important to make the most of these festive events. So, be sure to eat, drink (in moderation) and be merry!

For guidance on steps employers may wish to take in light of the Omicron variant, please read our briefing here.

If you would like to discuss any points raised in this article please contact Theo Nicou (theonicou@bdbf.co.uk), Amanda Steadman (amandasteadman@bdbf.co.uk) or your usual BDBF contact.

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