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An Employment Tribunal has decided that an employee who was dismissed shortly after contracting Covid was not disabled for the purposes of the Equality Act 2010.  Although the employee did go on to develop long Covid, it could not be said that this was likely to happen on the date she was dismissed.   

What happened in this case?

The Claimant was employed by Sense Scotland, a disability services and awareness charity, from 9 July 2019 until her dismissal on 27 July 2021.   She tested positive for Covid around 11 July 2021 and self-isolated until around 20 July 2021.   The Claimant experienced a variety of Covid symptoms including fatigue, shortness of breath, aches and pains, headaches and brain fog.  These symptoms continued even after the end of the self-isolation period and affected many aspects of her everyday life, for example she struggled with shopping and driving and ceased socialising and exercising.

On 26 July 2021, the Claimant booked an appointment to see her GP on 2 August 2021, to discuss the ongoing symptoms.  However, Sense Scotland dismissed the Claimant the next day.  The Claimant’s GP deemed her unfit to work between 2 August 2021 and 27 September 2021 and a diagnosis of “long Covid” was eventually made on 12 September 2021.  The Claimant started a new full-time job on 23 September 2021, which she was able to perform with some adjustments. 

The Claimant brought various claims against Sense Scotland, including for disability discrimination.  A Preliminary Hearing was held to decide whether she was disabled on the date that she was dismissed.

What was decided?

After being infected with Covid, most people find that their symptoms resolve within four weeks.  However, some experience symptoms for longer periods.  “Long Covid” is a shorthand term used to describe symptoms that continue after the acute phase of a Covid infection.  Employment Tribunals have previously accepted that some people suffering with long Covid will pass the disability test and so be protected from discrimination in the workplace.  Indeed, in the recent cases of Matthews v Razors Edge Group Ltd and Burke v Turning Point Scotland, the employees were found to be disabled by reason of long Covid. 

However, not everyone who suffers with long Covid will be disabled.  Individuals will have to pass the four elements of the disability test as follows:

1. Does the person have a physical or mental impairment?
2. If yes, does this have an adverse effect on their ability to carry out normal day-to-day activities?
3. If yes, is the adverse effect substantial?
4. If yes, is the adverse effect also long-term i.e. has lasted more than 12 months, or is likely to last more than 12 months (in this context, “likely to” means “could well happen”)?

In this case, the Claimant passed the first three elements of the disability test.  However, the Tribunal decided that, at the date of her dismissal, the Claimant’s impairment was properly described as Covid, rather than long Covid (as she had only contracted the disease about two weeks before the dismissal).  Nonetheless, they said this had a substantial adverse effect on her day-to-day activities. 

However, she fell at the final hurdle.  At the time of the dismissal, the substantial adverse effect had only lasted for just over two weeks and the diagnosis of long Covid was not made until around six weeks after the dismissal.   The Tribunal accepted that someone who contracts Covid is at risk of developing long Covid, which, in turn, may last for a year or more.  Yet the Tribunal noted that the substantial majority of people who contract Covid do not go on to develop long Covid.  While there was a risk that the Claimant would go on to develop long Covid and have it for a year or more, it could not be said that this was a risk that “could well happen”.   Therefore, she failed the long-term element of the disability test.

What does this mean for employers?

This decision does not mean that those who do not have an official diagnosis of long Covid, or who have not been ill for a year, will never be disabled.  Rather, it will always be a fact-specific question.  Indeed, in Matthews the employee had only been ill for three months at the date of dismissal and had not been diagnosed with long Covid.  Nevertheless, the Tribunal was satisfied of the likelihood of the condition lasting up to a year and held that the employee was disabled. 

Although Covid is less prevalent today, our understanding of the disease has grown.  Employers should be mindful that employees presenting with ongoing Covid symptoms many weeks or months after contracting Covid may be suffering from long Covid.  Where it is known, or suspected, that employees have long Covid, they may qualify as disabled.  This will trigger the duty to make reasonable adjustments and should also inform any potential dismissal process.  Where an employee is disabled, employers will usually be expected to explore other less discriminatory options before moving to dismiss, for example, allowing more time for recovery or redeployment.

Quinn v Sense Scotland

BDBF is a law firm based at Bank in the City of London specialising in employment law.  If you would like to discuss any issues relating to the content of this article, please contact Principal Knowledge Lawyer Amanda Steadman (amandasteadman@bdbf.co.uk) or your usual BDBF contact.

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In Burke v Turning Point Scotland an Employment Tribunal decided that an employee who had suffered with Covid symptoms for around nine months was disabled and could proceed with a disability discrimination claim.

What happened in this case?

Mr Burke was employed as a caretaker from April 2001. He caught Covid in November 2020.  After the initial isolation period, his symptoms continued and included serious fatigue, severe headaches, joint pain, and insomnia.  His symptoms meant he could not undertake ordinary household tasks such as cleaning, ironing, or cooking and would tire very easily.

Mr Burke went on sick leave from November 2020. He obtained Fit Notes from his doctor, which suggested that he had long Covid and post-viral fatigue syndrome. The employer sought two occupational health reports in April and June 2020.  These contradicted the Fit Notes and stated that Mr Burke was fit to return to work and that it was unlikely that he was disabled.

However, Mr Burke’s symptoms worsened, and he did not return to work.  The company eventually dismissed him on the grounds of ill-health in August 2021.  Mr Burke brought a claim for disability discrimination.  A preliminary hearing was held to decide whether Mr Burke was “disabled” for the purposes of discrimination law (being the first hurdle required to progress a disability discrimination claim).

What was decided?

The Employment Tribunal found Mr Burke to be a credible witness who had not exaggerated his symptoms (especially when there was no financial benefit to him in remaining on long-term sick leave) and that the post-viral fatigue syndrome caused by Covid amounted to a physical impairment.

The Tribunal also decided that the condition had a substantial impact on his ability to undertake day-to-day activities and (at the time of his dismissal) his symptoms were likely to last for 12 months.  Therefore, the Tribunal concluded that Mr Burke was disabled and could proceed with his claim for disability discrimination.

What does this mean for employers?

Last month, we discussed the question of whether long Covid could amount to a disability.  Despite some confusing guidance from the Equality and Human Rights Commission, we concluded that long Covid would, in some cases, amount to a disability.  This latest decision supports that view. 

Employers should be aware that employees with long Covid may be disabled, meaning that they will be protected from discrimination and that reasonable adjustments should be made for them.  This could include things like offering a phased return, a part-time hours arrangement or adjusting trigger points in absence management policies.

This decision is also a useful reminder for employers not to rely on occupational health reports to make conclusive determinations about whether or not an employee is disabled.

Burke v Turning Point Scotland

BDBF is a law firm based at Bank in the City of London specialising in employment law.  If you would like to discuss any issues relating to the content of this article, please contact Managing Associate Emily Plosker (emilyplosker@bdbf.co.uk), Principal Knowledge Lawyer Amanda Steadman (amandasteadman@bdbf.co.uk) or your usual BDBF contact.

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With an estimated 1.8 million people in the UK now suffering with long Covid, employers need to consider how to manage staff with the condition.   In this article, we explain why long Covid may qualify as a disability (despite some confused guidance from the EHRC) and the steps that employers should take as a result.

What is a disability?

The Equality Act 2010 defines what “disability” means for the purposes of discrimination in the workplace.  A small number of conditions are automatically deemed to be disabilities.  These are blindness, certain forms of sight impairment, severe disfigurement, cancer, HIV, and multiple sclerosis.

However, in most cases, the relevant questions for establishing whether a person is disabled are:

• Does the person have a physical or mental impairment?
• If yes, does this have an adverse effect on their ability to carry out normal day-to-day activities?
• If yes, is the adverse effect substantial?
• If yes, is the adverse effect also long-term (e. has lasted more than 12 months, or is likely to last more than 12 months)?

It is not necessary for an impairment to have a medically diagnosed cause.  This is because it is the effect of the impairment that matters rather than the cause.

“Normal day-to-day activities” are the things people do on a regular or daily basis, such as shopping, eating, reading, writing, walking, travelling, and taking part in social activities.  Deciding whether an impairment has an adverse effect on such activities is usually straightforward.

The more difficult question will usually be whether the adverse effect is “substantial”.  The Act simply says that “substantial” means more than minor or trivial.  Where it is not clear whether an adverse effect is more than minor or trivial, a number of factors should be considered, including the time taken to complete a task and the way in which it is carried out.  In most cases, medication or coping mechanisms which improve or hide the impact of a condition should be ignored.

What is “long Covid”?

After being infected with Covid, most people find that their symptoms resolve within four weeks.  However, some people experience symptoms for longer periods.  “Long Covid” is a shorthand term used to describe symptoms that continue after the acute phase of a Covid infection.  The NHS Your Covid Recovery webpage states that long Covid can take two forms:

• Ongoing symptomatic Covid: this is where symptoms continue for more than four weeks but fewer than 12 weeks.
• Post Covid syndrome: this is where symptoms continue for more than twelve weeks and cannot be explained by another condition

There are many symptoms of long Covid, and the particular combination of symptoms experienced will vary from person to person.  The most commonly reported symptoms include the following:

There is currently no test available to diagnose long Covid and nor are any drug treatments available.  Treatment of long Covid is focused on managing symptoms and increasing activity.

Could long Covid be classified as a disability?

The simple answer is: “Yes, but not always”.

In May 2022, the Office of National Statistics (ONS) estimated that about 1.8 million people in the UK (about 2.8% of the population) have long Covid, with 73% reporting symptoms lasting for 12 weeks or more, 44% reporting symptoms lasting a year or more and 13% reporting symptoms lasting two years or more.  Of the 1.8 million, 67% said it had affected their day-to-day activities, with 19% reporting that it had done so in a significant way.

Therefore, a subset of those with long Covid are experiencing symptoms which are having a significant effect on their day-to-day activities, and which have lasted (or are likely to last) for 12 months or more.   That being the case, it seems highly likely that at least some people with long Covid will pass the disability test outlined above and so be protected from discrimination in the workplace.  Indeed, in the recent case of Matthews v Razors Edge Group Ltd, an Employment Tribunal accepted that an employee was disabled by reason of long Covid.

Yet, on 7 May 2022, the Equality and Human Rights Commission (EHRC) – the body responsible for providing guidance on the Equality Act 2010 – tweeted that long Covid should not be treated as a disability.  The tweet said that “Without case law or scientific consensus, EHRC does not recommend that “long Covid” be treated as a disability”.  The post was surprising given that we know that disabilities do not need to have a medically diagnosed cause and that the test focuses on the effect of the impairment on the individual.  The ONS figures demonstrate that some people with long Covid are experiencing significant effects on their day-to-day activities, meaning that they might qualify as disabled.

Unsurprisingly, the tweet provoked consternation in many quarters, including amongst those working in the medical and HR arenas.  On 9 May 2022 the EHRC issued a “clarificatory” statement.  The statement said that long Covid was not a deemed disability and, therefore, not all cases of long Covid will pass the disability test.  However, it went on to say: “This does not affect whether long Covid might amount to a disability for any particular individual – it will do so if it has a substantial and long-term adverse effect on their ability to carry out normal day to day activities.”  The statement went on to recommend that employers apply guidance on making reasonable adjustments for disabled people.

So, the EHRC got to the right answer in the end, namely that some people with long Covid may be disabled.  The individual will have to pass the four elements of the disability test discussed above.  For many, their symptoms will not be serious enough, or sufficiently long-term, but a cohort of unfortunate people may well pass the test.

What should employers do if a worker has long Covid?

If you know, or suspect, that a worker has long Covid, then you should tread carefully given that they may be disabled.  If they are disabled, they will be protected against various forms of disability discrimination.  In addition, you would be under a positive duty to make reasonable adjustments for them.  This duty arises if they are substantially disadvantaged in comparison to non-disabled persons by either a provision, criterion or practice operated by you, a physical feature of the work premises or the absence of an auxiliary aid.  A failure to make reasonable adjustments is discriminatory and gives rise to a separate discrimination claim.

Given these risks, employers should ensure that they take the following steps:

• Investigate: gather as much information as possible to understand the worker’s health. This includes GP certificates, correspondence, and notes of your own interactions with the worker and notes of any return-to-work meetings.  It is advisable to reflect on this at an early stage and keep the position under review.  This is especially the case where you are considering taking action against someone for something that may be caused by disability (for example, issuing a warning for high levels of sickness absence).
• Decide when to obtain specialist advice: consider carefully when its right to obtain specialist occupational health advice. Depending on the facts, it may be appropriate to wait, but the position should be kept under regular review.  As time goes on, the individual’s condition may evolve from one which does not meet the disability test, to one that does.

• Give clear instructions when seeking specialist advice: when instructing specialist advisers, take care to summarise accurately the knowledge of the worker’s health and ask the adviser to provide a view on whether the individual is disabled by reference to the different elements of the disability test in the Act.
• Follow up where necessary: where the specialist advice is imprecise, incomplete or contradicts other evidence, this should be followed up and further advice sought. This is a particular risk in relation to long Covid, where knowledge of the condition is still in its early stages.  Crucially, occupational health reports should not be viewed as determinative, but should be treated as part of the overall picture.
• Be pragmatic and don’t be afraid to make adjustments: making adjustments will not necessarily be viewed as a concession of disability status and may help to resolve the issue in hand. Where you have information which suggests that the individual may be disabled, it would be sensible to address the issue of adjustments in a proactive way. For those with long Covid, this may include things like:

BDBF is a law firm based at Bank in the City of London specialising in employment law. If you would like to discuss your Covid strategy or any other issues relating to the content of this article, please contact Principal Knowledge Lawyer Amanda Steadman (amandasteadman@bdbf.co.uk) or your usual BDBF contact.

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In Rodgers v Leeds Laser Cutting Ltd the EAT upheld an Employment Tribunal’s decision that it was not unfair to dismiss an employee who refused to attend work because he was worried about catching Covid and giving it to his vulnerable children.

What does the law say?

There are special provisions governing dismissals that are classified as “automatically” unfair.  Importantly, claimants who have been automatically unfairly dismissed do not need to meet the usual two years’ service requirement to bring an “ordinary” unfair dismissal claim.

Employees can claim automatic unfair dismissal on a number of grounds, including for health and safety-related reasons. This includes protection from dismissal for exercising the right to refuse to attend the workplace and/or to take steps to protect themselves where they reasonably believe there is serious and imminent danger in the workplace.

What happened in this case?

Mr Rodgers began working for Leeds Laser Cutting Ltd (the Company) in June 2019.  He worked in a large warehouse-type space about the size of half a football pitch in which usually only five people would be working at any one time.

Following the announcement of the first lockdown on 23 March 2020, the Company told employees that the business would remain open but that it was putting in place measures to ensure the safety of staff.   A risk assessment had been carried out by an external professional, which made various recommendations relating to social distancing, wiping down surfaces and staggering start/finish/break times.  In fact, the Company already had many of these measures in place prior to the risk assessment.

On 29 March 2020, Mr Rodgers sent a text message to his line manager that said he would not return to work until the lockdown had eased because he had a young child with sickle cell anaemia who could become very ill if he caught the virus.  In addition, he also had a seven-month-old baby who might have had the same health problems (this was not known at the time).  A month later Mr Rodgers was dismissed by the Company.  He brought a claim for automatic unfair dismissal, arguing that he had been dismissed because he had exercised his right to leave the workplace to protect himself from serious and imminent danger.

The Employment Tribunal decided that Mr Rodgers had not been automatically unfairly dismissed.  It found that Mr Rodgers could not have reasonably believed that there were circumstances of serious and imminent workplace danger at the time that he had refused to attend work.  The Tribunal concluded that:

• There was no evidence that Mr Rodgers had ever raised any health and safety concerns with the Company. His place of work was large, with only a few people working at any one time, meaning it was not difficult to socially distance.  A risk assessment had been carried out and there were reminders about handwashing regularly.  Mr Rodgers acknowledged that this information had been communicated to him.
• In Mr Rodgers’ text message to his line manager he did not identify any specific risks within the workplace. Nor did he make any indication that he would return if improvements were made to the workplace.
• Mr Rodgers argued that the pandemic itself created a serious and imminent workplace danger, regardless of the Company’s safety precautions.  Importantly, the Tribunal rejected this, noting that if this were to be the case then any employee could simply down tools on the basis that the virus was circulating in wider society.
• Further, his actions (e.g. not wearing a facemask, leaving his home during self-isolation, and working in a pub during lockdown) did not support his argument that there were circumstances of danger which he believed were serious and imminent.

Mt Rodgers appealed to the Employment Appeal Tribunal (EAT).

What did the EAT decide?

The EAT agreed with the Employment Tribunal that the dismissal was not automatically unfair.

The EAT accepted that, in principle, an employee could reasonably believe that there were serious and imminent circumstances of danger arising outside the workplace that prevented him from returning to the workplace. 

However, on the facts of this case, the Tribunal had found that Mr Rodgers did not reasonably believe that there were circumstances of danger which were serious and imminent, either at work or at large.  Even if the Tribunal had been wrong about this, it had been entitled to find that Mr Rodgers could have been expected to take reasonable steps to avoid such danger, such as wearing a mask, observing social distancing, and sanitising his hands.

What does this mean for employers?

As many employers are focusing on reintegrating staff to the workplace, it should be remembered that some workers may still be feeling anxious about coming back and may have underlying reasons for this, including their own health, or that of those they live with or care for. 

This case demonstrates that by taking steps to ensure that the workplace is safe, employers can minimise the risk of successful automatic unfair dismissal claims on health and safety grounds. Employers should update risk assessments, implement control measures, and consult with staff about risks in the workplace and return-to-work plans.  This should help to reassure anxious staff members that they will be safe at work.

However, where employees are particularly worried about the return to work, other employment rights may come into play.  For example, employees who have health conditions that put them at higher risk of severe illness from Covid may be disabled, requiring reasonable adjustments to be made (which could include allowing homeworking).  If employees are concerned about returning to the workplace because they live with a vulnerable person, then this could give rise to an associative disability discrimination claim. In BDBF’s recent webinar on “Reluctant Returners”, we looked at the different reasons why employees may be reluctant to the return to the workplace and how employers should manage this.  You can view the webinar and accompanying slide presentation here.

Rodgers v Leeds Laser Cutting Ltd

BDBF is a law firm based at Bank in the City of London specialising in employment law. If you would like to discuss your Covid strategy, or any issues relating to the content of this article, please contact Principal Knowledge Lawyer Amanda Steadman (amandasteadman@bdbf.co.uk) or your usual BDBF contact.

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On 1 April 2022, the last Covid-related restrictions were withdrawn, and the Government moved to the next phase of the pandemic – “living with Covid”.   In this briefing, we discuss the changes of most interest to employers and what they mean in practice.

What changed for employers on 1 April 2022?

The following changes took effect on 1 April 2022 and are of particular importance to employers:

• Covid testing: free lateral flow and PCR testing ended for the general public (PCR tests remain available for social care workers and those at higher risk of serious illness from Covid).
• Self-isolation: those with Covid symptoms are no longer required to stay at home but encouraged to exercise personal responsibility and show consideration to others, and this includes working from home if they can.
• Guidance for employers: the stringent “Working safely” guidelines for employers across different sectors were replaced by new lighter touch public health guidance.
• Risk assessments: the requirement for employers explicitly to consider Covid in their health and safety risk assessments was removed.

There are also two new guidance documents for employers to understand.  First, the guidance on reducing the risk of respiratory infections in the workplace and second, the guidance for people with symptoms of a respiratory infection (this guidance is aimed at individuals, including employees). 

These changes are considered further below.

What is the impact of removing free Covid testing?

The withdrawal of Covid tests means it will become harder to identify when employees have Covid.  Where an employee reports Covid symptoms and is feeling unwell enough not to attend work during this period then the assumption could simply be made that they have Covid without the need for a test.  Such employees would take sick leave in the normal way.  Special statutory sick pay rules have been revoked, meaning that statutory sick pay will only be payable from the fourth qualifying day that the employee is absent from work.

Where the employee has symptoms but feels fit enough to attend work, then their status could be confirmed by way of a private Covid test.  The Government has published a list of private Covid test providers who offer “general population Covid tests” for asymptomatic individuals.  This list is updated daily and contains details of over 1000 providers.

One question for employers will be who pays for the test in these circumstances?  If the employer is asking the employee to take the test in order to be allowed to attend the workplace, then it would be reasonable for the employer to pay.  Similarly, any employers continuing with routine Covid testing arrangements for staff will probably have to foot the bill for them.

Can employers now ask employees with Covid to attend work?

In principle, yes.  Where an employee tests positive for Covid after 1 April 2022, they are not required to self-isolate.  The replacement guidance (discussed in more detail below) is very light touch and does not ask much from employers.  On the face of it, employers have greater flexibility to instruct Covid positive employees to attend work. 

However, employers will still need to consider health and safety risks, particularly to those who are at higher risk of illness from Covid, which will include:

• older people;
• pregnant women;
• people who are unvaccinated;
• people whose immune system means they are at higher risk of serious illness; and
• people with certain long-term conditions.

Further, employers will wish to avoid provoking Covid outbreaks in the workplace, which will lead to higher levels of sickness absence.

Finally, the wider employee relations angle should be factored into any decisions here.  The guidance aimed at individuals suggests that they should try to work from home when they have Covid symptoms, and so there may well be an expectation from staff that they will be permitted to do so. Plus, many employees will be unhappy about the prospect of having to work alongside someone with Covid.  

What does the new public health guidance ask employers to do?

The guidance does not specifically deal with Covid but looks at steps to be taken in respect of all respiratory infections (which includes Covid, but also things like flu).

In contrast to the guidance that preceded it, the new workplace guidance is very light touch.  It asks employers to know the symptoms of Covid so that they can take actions to reduce the risk of spreading the infection to others.  Such actions include:

• encouraging and enabling staff to be vaccinated;
• keeping the workplace well-ventilated;
• keeping the workplace clean and providing handwashing materials; and
• applying these steps more rigorously in the event of an outbreak of Covid in the workplace.

In addition, the guidance urges employers to consider the particular needs of employees who are at greater risk of serious illness from Covid (listed above). 

Separate guidance has also been published for those whose weakened immune systems mean that they are at higher risk.  That guidance says that such staff should work from home if they can and if they feel it is right to do so. Where it is not possible to work from home, affected staff are encouraged to speak to their employers about what arrangements can be made to reduce the risk of infection.  If the individual is disabled, such adjustments would also qualify as “reasonable adjustments” under the Equality Act 2010 (and could give rise to a discrimination claim if not made).

Does Covid still need to be considered in workplace health and safety risk assessments?

Although there is no longer a requirement for employers explicitly to consider Covid in their statutory health and safety risk assessments, the new guidance stresses that employers must continue to comply with their general legal obligations relating to health and safety and employment law. 

The Health and Safety Executive says it no longer requires every business to consider Covid in their risk assessment or to have specific measures in place, but employers may still choose to continue to cover it in their risk assessments.  The HSE also states that employers must comply with general health and safety laws and also take extra steps where staff will come into contact with Covid as part of their work activity (e.g. healthcare workers or those involved in researching the virus in laboratories). 

In practice, this means that the risks arising from Covid in the workplace will usually still be considered, although not in quite so much detail as during the height of the pandemic. 

BDBF is a law firm based at Bank in the City of London specialising in employment law. If you would like to discuss your Covid strategy, or any issues relating to the content of this article, please contact Principal Knowledge Lawyer, Amanda Steadman (amandasteadman@bdbf.co.uk), or your usual BDBF contact.

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On 21 February 2022, the Prime Minister announced the end of the Government’s Covid restrictions in England and a move towards personal responsibility.  In this briefing we explain the changes and the key risks for employers.

What is changing and when?

The following changes will take effect on 24 February 2022:

• Self-isolation: between 24 February 2022 and 31 March 2022 (the self-isolation transitional period) those who test positive for Covid will be advised to stay at home and avoid contact with other people for at least five full days if they can, but they will not be legally required to do so. They may resume their normal routine once they have tested negative on two consecutive days (from day five onwards).
• Notifying employers: individuals will no longer be required to notify their employers that they have been advised to self-isolate.
• Support payments and SSP: the £500 self-isolation support payment for people on low incomes will end. However, the special Covid provisions for Statutory Sick Pay (SSP) will end a month later on 24 March 2022 (i.e. from this date, Covid sickness or self-isolation will no longer mean an individual is automatically deemed incapacitated and entitled to SSP from day 1 of their sickness or self-isolation).
• Contact tracing: routine contact tracing will end. Those who are fully vaccinated (or under 18) and are close contacts of a positive case will no longer be asked to test daily for seven days. Those who are not fully vaccinated and are close contacts of a positive case will no longer be required to self-isolate.

The following further changes will take effect on 1 April 2022:

• Self-isolation: those with Covid symptoms will be encouraged to “exercise personal responsibility” and show consideration to others, but will not be required, nor advised, to stay at home.
• Covid testing: free LFT and PCR testing will end for the general public (PCR tests will remain available for social care workers and certain vulnerable groups).
• Risk assessments: the requirement for employers to explicitly consider Covid in their health and safety risk assessments will be removed.
• Guidance for employers: the “Working safely” guidelines for employers in different sectors will be replaced by new public health guidance, which will urge employers to continue to consider the needs of those at greater risk from Covid.
• Covid certification: the use of voluntary Covid-status certification will no longer be recommended for use (although the NHS app will still allow people to indicate their vaccination status for international travel).

How should employers handle Covid positive employees during the self-isolation transitional period and what are the risks?

During the self-isolation transitional period, employees will still be able to access free LFT and PCR tests and discover whether they have Covid.  Where they test positive, the Government’s advice is that they should self-isolate for at least five full days, but this is no longer a legal requirement.  Employees will not be legally required to notify the employer that they have tested positive for Covid and advised to self-isolate.  It would, therefore, be sensible for employers to introduce their own requirement for employees to notify them if they test positive for Covid.

Where a Covid positive employee is unwell during this period, they will usually take sick leave in the normal way. However, where a Covid positive employee is fit to work the employer will need to decide its approach.  Will such employees be permitted to attend the workplace or directed to stay at home?   Below we consider four possible scenarios that may arise and the associated employment law risks.

Scenario 1 – Employer directs the Covid positive employee to come into the workplace  / Covid positive employee wishes to stay at home:

If an employer instructs a Covid positive employee to attend the workplace in these circumstances this would not breach any Covid-specific law, but it would be contrary to Government guidance and it may also breach wider health and safety legislation.

The employee may be able to argue some or all of the following:

• It is not a reasonable management instruction and, therefore, non-compliance does not put them in breach of contract. If the employee was dismissed for non-compliance, they could argue the dismissal was unfair.
• The instruction puts the employer in breach of (i) the implied duty to take reasonable care of the health and safety of employees; and/or (ii) the statutory duties arising under the Health and Safety at Work Act 1974. In theory, the employee could constructively dismiss himself / herself in response to those breaches.
• That they will not comply with the instruction to attend the workplace because they are concerned about the health and safety risks of passing Covid onto their colleagues and the public at large (especially vulnerable and pregnant people) and the employer’s instruction puts those people at risk of serious and imminent danger.If the employee is subjected to a detriment (e.g. not paid) and/or dismissed as a result, then they may have claims for unlawful detriment and/or automatically unfair dismissal.
• That the voicing of concerns about attending the workplace in these circumstances represents a whistleblowing disclosure. If the employee was subjected to a detriment and/or dismissed as a result, then they may have claims for unlawful detriment and/or automatically unfair dismissal.
• That they have a philosophical belief in the protection of public health and the compliance with Government guidance on the same, meaning that the instruction to attend the workplace is indirectly discriminatory. A similar argument failed in this recent case, but an employee may have more success if they could show that their belief concerned wider public health rather their own / their partner’s wellbeing.

Scenario 2 – Employer directs the Covid positive employee to come into the workplace  / Covid positive employee is willing to attend the workplace:

In this scenario, the employer and employer are aligned but other employees may object to the attendance of a Covid positive employee at work (especially if they are vulnerable or pregnant).  They could argue:

• It is not a reasonable management instruction to ask them to attend work alongside a Covid positive employee and they may refuse to attend work. If an employee was dismissed for non-compliance with the instruction, they could argue the dismissal was unfair.
• The instruction puts the employer in breach of (i) the implied duty to take reasonable care of the health and safety of employees; and /or (ii) the statutory duties arising under the Health and Safety at Work Act 1974. In theory, the employee could constructively dismiss himself/herself in response to those breaches.
• That they will not comply with the instruction to attend the workplace because they are concerned about the health and safety risks of catching Covid and the employer’s instruction puts them at risk of serious and imminent danger (particularly pertinent if they are vulnerable or pregnant or live with someone who is). However, there have been cases where this argument has been run by employees who were dismissed earlier in the pandemic, and such dismissals were held to be fair. The difference now is that the employer would knowingly be placing an employee in close proximity to someone who had Covid, and they would be doing so contrary to Government guidance.  If the employee was subjected to a detriment and/or dismissed as a result, then they may have claims for unlawful detriment and/or automatically unfair dismissal.
• The voicing of concerns about attending the workplace in these circumstances represents a whistleblowing disclosure. If the employee was subjected to a detriment and/or dismissed as a result, then they may have claims for unlawful detriment and/or automatically unfair dismissal.
• If the employee is pregnant, they may be able to argue that the employer has failed in its duty to assess specific risks for them and take measures to address those risks (i.e. keep the Covid positive employee out of the workplace), failing which they must be suspended from work on full pay.
• If the employee is vulnerable and disabled, they could argue that an instruction to work alongside a Covid positive employee is indirect disability discrimination. If the employee is not disabled themselves, but had caring responsibilities for someone who is, then they could argue that the instruction to work alongside a Covid positive employee amounts to “associative” indirect disability discrimination.

Scenario 3: Employer directs the Covid positive employee to stay at home  / Covid positive employee wishes to stay at home:

In this scenario, the employee and employer are aligned, and this shouldn’t present any problems provided that the employee is able to work from home.  However, if the employee’s role cannot be performed from home, the question is how should such leave be treated?  The position during the self-isolation transitional period is complicated.

As discussed above, the special Covid provisions for SSP will remain in place until 24 March 2022.  This means that anyone who is sick or self-isolating due to Covid is automatically deemed to be incapacitated and is entitled to SSP from day 1 of their sickness or self-isolation (rather than the usual day 4).  Therefore, if the employee stays at home and adheres to the self-isolation guidance, they will be entitled to SSP and contractual sick pay if applicable.  However, if the employee refuses to adhere to the self-isolation guidance then they will not be entitled to SSP and the employer will need to decide how to treat this leave.

Further, from 24 March 2022, the special Covid provisions for SSP will be removed, meaning that an employee will only be entitled to SSP if they qualify in the normal way.  One such qualification is that they are incapacitated. Therefore, a Covid positive employee who is fit to work will not be entitled to SSP.   Again, the employer will need to decide how to treat this leave.

In such cases, the employer may elect to treat this leave as sick leave and pay it in the usual way. However, given that the absence it is not really attributable to sickness, will it count for (i) entitlement to contractual sick pay; and (ii) the purposes of any sickness absence management threshold?  If it is counted for such purposes, then this could present issues at a later date if the employee becomes sick for another reason and has exhausted their entitlement to contractual sick pay and/or they are disciplined for their level of absence.

To avoid such issues, the employer could elect to treat the absence as some sort of special leave, but the key question will be whether or not it is paid.  If it is paid, there should be no problem.  If it is not paid, the employee could argue that the employee is in breach of the implied duty to pay wages and/or the implied duty of trust and confidence.  The employee is likely to raise a grievance and may constructively dismiss himself/herself in response to those breaches.

Scenario 4: Employer directs the Covid positive employee to stay at home  / Covid positive employee wishes to attend the workplace:

Here, the employee and employer are not aligned.  However, this is likely to be a reasonable management instruction (given the Government guidance during the self-isolation transitional period) and so the employee should usually comply with it.

Again, this scenario shouldn’t present any problems provided that the employee is able to work from home.  However, if the employee’s role cannot be performed from home, then the same issues outlined in scenario 3 above will arise. 

How should employers handle Covid positive employees from 1 April 2022 onwards?

From 1 April 2022, free Covid tests will be withdrawn and so it will become harder to identify when employees have Covid.  Where an employee reports Covid symptoms and is unwell enough not to attend work during this period then the assumption could simply be made that they have Covid without the need for a test.  Such employees would take sick leave in the normal way.

Where the employee has some symptoms but is fit to attend work, then their status could be confirmed by way of a private Covid test.  The Government has said that it is working with retailers to ensure that everyone who wants a Covid test can buy one.  One question for employers will be who pays for the test in these circumstances?  If the employer is asking the employee to take the test in order to be allowed to attend the workplace, then it would be reasonable for the employer to pay.

In addition, some employers have instituted routine Covid testing arrangements for staff.  These arrangements may continue if the employer wishes, but, again, if the employer is asking the employee to take these tests before attending work it will probably have to foot the bill for them.

Where an employee tests positive for Covid after 1 April 2022, they will not be required, nor advised, to self-isolate.  In tandem, the requirement for employers to specifically assess Covid risks will be removed, as will the special Covid “Working safely” guidance.  On the face of it, therefore, it appears that employers will have greater flexibility to instruct Covid positive employees to attend work, without facing the risks that arise during the self-isolation transitional period.   However, employers should review the new public health guidance when it is published and consult with their workforce before deciding their approach.

Prime Minister’s Statement

Living with Covid-19

BDBF is currently advising many employers and employees on the challenges presented by the coronavirus pandemic.  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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On 19 January 2022, the Prime Minister announced that the Plan B contingency measures introduced to tackle the Omicron variant would be lifted, including the working from home guidance.  In this briefing, we outline what is changing and what this means for employers.

Working from home

The latest round of working from home guidance came into force on 13 December 2021, with workers told that they should work from home if they could.   Exceptions were made for those who could not work from home (for example, where they needed to access equipment necessary for their role, or where their role had to be completed in person).  In addition, workers facing mental or physical health challenges, or those with particularly challenging home environments, were allowed to attend the workplace. 

This guidance was lifted with effect from 19 January 2022.  The Working Safely During Coronavirus Guidance for Offices (Office Guidance) confirms that workers no longer have to work from home.  The Guidance says that employers should now talk to staff to agree arrangements to return to the workplace, consulting with workers where appropriate.

The lifting of the guidance means that employers can now resume office working, on a hybrid or full-time basis.   However, employers are told they should “remain responsive to workers’ needs” and consult with them about health and safety measures in the workplace.  In particular, extra consideration should be given to those who are at higher risk of severe illness from COVID and to those facing mental and physical health difficulties.  This will include those who are clinically extremely vulnerable, disabled workers and pregnant workers.  Special guidance is in place for pregnant workers.

Other changes

The other changes brought about by the lifting of the Plan B restrictions are discussed below.

Face coverings

From 10 December 2021, face coverings were required by law in some public indoor settings, such as theatres and cinemas, but not in hospitality settings.  This was in addition to the existing requirement to wear them in shops, cinemas, premises that provide close contact services, transport hubs and on public transport.   However, they were not required in office settings.

These requirements were lifted on 27 January 2022.  However, people are advised to wear them in crowded and indoor spaces where they may come into contact with people they do not normally meet.  The Office Guidance encourages the wearing of face coverings in offices in congested areas (e.g. corridors / lifts etc). 

Changes to self-isolation rules

The rules on self-isolation have changed a number of times over recent months.  The current default rules are that people infected with COVID-19 must self-isolate for a period of 10 full days.  However, since 17 January 2022, it has been possible to be released from self-isolation on or after Day 6, provided the individual has had negative lateral flow tests on two consecutive days (e.g. negative results on Days 5 and 6 would mean release on Day 6).  You can read more about these rules here. 

The Government has said it intends to scrap self-isolation altogether after the current rules expire on 24 March 2022.  The legal rules are likely to be replaced with advice and guidance.  Without strict legal rules in place, employers will have to consider their approach to the issue and whether someone who has tested positive for COVID and is feeling well should be prevented from attending work (this is discussed further below). 

Isolation and sick pay

Currently, if an employee is legally required to self-isolate, they are entitled to be paid statutory sick pay (SSP), if eligible.  In addition, small and medium-sized businesses can recover the cost of SSP for COVID-related sickness absences occurring after 21 December 2021. 

When the self-isolation rules change as discussed above, it is likely that entitlement to SSP will also change.   There are two scenarios employers will need to deal with:

• Where employees have COVID, and are too unwell to attend work, they should remain entitled to SSP. If eligible, they should also be entitled to company sick pay.  In recent weeks, there have been reports of some employers (e.g. Ikea, Next, Ocado, Morrisons and Wessex Water) choosing to cut company sick pay for unvaccinated employees.  However, on closer inspection, the removal of company sick pay in these cases only applied to unvaccinated staff who had tested negative for COVID, but who had to self-isolate as a contact of a positive case. (Vaccinated people are excused from self-isolation in such circumstances).  It appears that company sick pay was still provided to unvaccinated staff who had tested positive for COVID. 
• Where employees have COVID and feel well enough to work, it is not clear whether they will remain entitled to SSP. If such employees are able to work from home, the solution would be to allow them to do so until they recover.  However, if they are unable to work from home, should you allow them to attend work or not?  If you prevent them from coming to work, how would that absence be treated?  If it is treated as a period of enforced sickness absence, how would it be paid?  And would it count towards sickness absence management thresholds? Yet, if it is not regarded as sickness absence, how should it be treated and paid?  The situation will become clearer over the coming months, but there will be some tricky issues for employers to grapple with. 

Covid status checks

From 15 December 2021, certain businesses and events (nightclubs and large venues) were required by law to check the COVID status of both workers and customers using the NHS COVID pass or a negative lateral flow test.   

From 27 January 2022, this requirement was lifted, although affected businesses may choose to continue with these measures on a voluntary basis.

BDBF is currently advising many employers and employees on the challenges presented by the coronavirus pandemic, including preparing for the return to the workplace.  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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In the case of X v Y, an Employment Tribunal decided that a claimant’s fear of catching COVID-19, and her belief that she needed to protect herself and her partner from catching it, was not a protected belief for the purposes of discrimination legislation. 

What happened in this case?

The first national lockdown was lifted in July 2020 and employers were permitted to return workers to the workplace.  In this case, the claimant took the decision not to return to the workplace on the grounds of health and safety connected to COVID.

In addition to concerns about health and safety in the workplace, the claimant said she was fearful of contracting the virus herself and passing it on to her vulnerable partner.  She explained her position to her employer and said she would not be returning to work.  Her employer stopped paying her wages.

The claimant brought various claims in the Employment Tribunal, including that the employer’s actions amounted to discrimination on the grounds of her protected belief, which was described as “a fear of catching COVID and a need to protect herself and others”.  

What was decided?

We know that workers are protected from discrimination in employment on the grounds of their religion or their religious or philosophical belief.   However, only philosophical beliefs which meet a certain standard are protected.  In order to be covered, a philosophical belief must:

1. be genuinely held;
2. be a belief and not a mere opinion or viewpoint based on the present state of information available;
3. concern a weighty and substantial aspect of human life and behaviour;
4. have a certain level of cogency, seriousness, cohesion and importance; and
5. be worthy of respect in a democratic society and not be incompatible with human dignity or conflict with the fundamental rights of others.

The Employment Tribunal decided that the first, fourth and fifth criteria were met, but the second and third were not.

As to the second criterion, it was decided that the claimant’s fear did not amount to a belief.  Rather, it was an instinctive reaction to a threat of physical harm and the need to take steps to avoid or reduce that threat.  Further, a view that certain actions (e.g. attending a crowded place) would increase the risk of contracting COVID, was an opinion based on the state of information available at the time.

As to the third criterion, the Tribunal said that fears about the harm caused by COVID are weighty and substantial and not minor or trivial.  They also concern aspects of human life and behaviour.  The fact that such a fear could be descried as time-specific (i.e. for length of the pandemic) would not, in itself, mean this criterion could not be met.  However, in the claimant’s case, her fear concerned herself and her partner only – there was no wider concern for others.

Accordingly, the claimant’s discrimination complaint was not allowed to proceed.

What does this decision mean for employers?

As the working from home guidance is lifted once more, many employers will be looking to bring workers back to the workplace for some, or all, of the time.  Some workers may be fearful about the return.  This case shows that if negative consequences follow a refusal to return, a worker is unlikely to succeed in a philosophical belief discrimination claim.  Even if a claimant could demonstrate concern for a wider group of people (to satisfy the third criterion), it is difficult to see how they would satisfy the “belief not viewpoint or opinion” requirement.

However, employers should remember that employees in this situation may have other valid claims.  For example, if employees raise concerns about the safety of the workplace and suffers negative consequences they may be protected against detriment and dismissal (under special rules governing health and safety disclosures and/or whistleblowing laws).  In addition, if employees, or someone they live with, are vulnerable to COVID and qualify as disabled, they could argue that a requirement to return to work amounted to indirect disability discrimination.

For these reasons, employers faced with reluctant returners should always engage with employees to understand their concerns and make appropriate adjustments where needed.  It would also be sensible to share workplace risk assessments with staff to reassure them of the steps taken at work to protect their wellbeing.

X v Y

If you would like to discuss any issues arising out of this decision please contact Amanda Steadman (amandasteadman@bdbf.co.uk) or your usual BDBF contact.

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In this briefing we round up the Plan B contingency measures to be adopted in the fight against the Omicron variant and assess what the latest “work from home” guidance really means for office-based employers.

What are the Plan B restrictions and when do they come into force?

The Government’s Autumn and Winter plan set out the measures needed to manage COVID through the Autumn and Winter months, including contingency measures – a “Plan B” – to be followed in the event of unsustainable pressure on the NHS.  On 8 December 2021, the Prime Minister announced that these Plan B measures were to be triggered in the light of the growing number of Omicron variant infections (you can read more about the Omicron variant in our briefing here).  The Plan B restrictions are summarised below.

• Face coverings: From Friday, 10 December 2021, face coverings were required by law in some public indoor settings, such as theatres and cinemas, but not in hospitality settings.  This was in addition to the existing requirement to wear them in shops, cinemas premises that provide close contact services, transport hubs and on public transport.  There is no requirement to wear them in office settings, although the Working Safely during Coronavirus Guidelines for offices, factories and labs (the Guidelines) encourages the use of them in congested areas (e.g. corridors / lifts etc). 
• Working from home: from Monday, 13 December 2021, office workers who can work were asked to do so.  However, this is guidance only, not law – it will not be unlawful to leave home to attend work.  For a full discussion of the latest working from home guidance, please see below.
• Changes to self-isolation rules: new rules introduced in August had exempted certain groups of people (the double vaccinated and others) from the requirement to self-isolate where they had been in contact with a positive case of COVID.  However, these rules were changed in response to the Omicron variant, requiring anyone who was a contact of a suspected or confirmed Omicron variant case to self-isolate for ten days, even if they fell into one of the exempt categories.  However, from Tuesday, 14 December 2021, the rules changed again.  From this date, anyone falling into an exempted group who was a contact of someone with COVID (whether Omicron or otherwise) will not need to self-isolate. Instead, they should take lateral flow tests daily for seven days. You can read more about the new rules here.
• Covid pass: from 6am on Wednesday 15 December, certain businesses and events (nightclubs and large venues) were required by law to check the COVID status of workers and customers using the NHS COVID pass or a negative lateral flow test.  This should not affect office-based employers.

Do the Plan B restrictions mean that all office workers must now work at home?

No.  The guidance for office-based employers on working from home has evolved subtly throughout the pandemic.   Before considering the latest position, it is helpful to reflect on how the position has changed over the last two years.

• Spring – Autumn 2020: At the outset of the pandemic, the advice was that everyone should work from home save where it was not possible to do so. By August 2020, the Guidelines had been softened slightly to allow employers greater discretion to return workers to the office, provided it was possible to do so safely. 
• Autumn 2020 – Spring 2021: When the second wave of the pandemic hit in October 2020, the guidance was tightened up to say that those office workers who could “work effectively” from home should do so over the Winter of 2020.  However, anyone who could not do so was permitted to attend the office, provided that it was safe to do so. This iteration of the guidance was flexible enough to leave it to the worker to decide what “working effectively” meant for them (within reason).
• Spring – Summer 2021: By Spring 2021, the Guidelines were moderated to provide that workers could return to the office when Step 4 of the unlock roadmap was reached (which eventually took place on 29 July 2021). However, the guidance said that workers could attend the office before Step 4 was reached if they could not work effectively from home, it was appropriate in the light of a worker’s mental or physical health difficulties or it was appropriate in the light of a worker’s “particularly challenging” home working environment.
• Summer – Winter 2021: All COVID restrictions were lifted on 29 July 2021 and the guidance was updated to allow employers the freedom to return all workers to the office on a gradual basis over the Summer. Most employers did this over the late Summer and Autumn months, although many opted to retain a degree of hybrid working.

The new Guidelines applied from 13 December 2021.  They provide that office workers should work from home “if they can”.  There is no qualification to say that they should do this only where they cannot work “effectively” from home.  However, the guidance goes on to say that anyone who cannot work from home may continue to go into work, for example, where they need to access equipment which is necessary for their role, or where their role mustbe completed in-person.  It also states that employers should consider whether home working is appropriate for workers facing mental or physical health challenges, or those with a particularly challenging home environment. 

Therefore, the Guidelines are similar to those in place throughout Spring and Summer 2021, save that the absence of the word “effectively”, and the emphasis on attending where “necessary” or if they “must”, suggests a slightly more restrictive approach.   In our view, the end result is that employers should not ask workers to attend the office for non-essential reasons (and nor should workers elect to do so).

However, there remains leeway for workers to attend the office where they face mental or physical health difficulties.  For example, if a worker finds that homeworking causes or exacerbates depression or anxiety then they may attend the office.  In addition, if the worker has a “particularly challenging” home working environment it may be appropriate for them to attend the office.  The Guidelines do not expand on what counts as “particularly challenging”, but it is reasonable to conclude that it has to be something more than being bored of working from home or wanting to socialise with colleagues.  It is likely to cover things like:

• poor internet access;
• disruption caused by a house move or building works;
• inability to concentrate due to a noisy environment;
• cramped working conditions; and/or
• lack of privacy.

The Guidelines state that where a worker does attend the workplace, they should consider taking regular lateral flow tests to manage the risk.

It’s also worth noting that the Guidelines urge caution in relation to people who are at higher risk of infection from COVID and/or an adverse outcome if infected.  These groups are not specified but will include those who are considered clinically extremely vulnerable, some disabled workers, pregnant workers and, potentially, any unvaccinated workers.  At the same time, employers must take care not to discriminate against a worker because of a protected characteristic.

Next steps?

Office-based employers should now take the following steps:

• consult with workers and decide who needs to come into the workplace and who can work from home (bearing in mind the special needs of “at risk” workers and those with protected characteristics);
• update their health and safety risk assessment in light of Omicron and implement any measures;
• communicate the latest guidance to staff and ensure they understand that they should only attend the office in appropriate circumstances; and
• stay alert to changes to the restrictions – a review of the current position is expected in the early January 2022.

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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As we approach what we hope is the final Christmas cursed by COVID-chaos and enforced homeworking, Associate, James Hockley takes a light-hearted look back over the last two years and remembers some of the Zoom stories that grabbed our attention for all the wrong reasons. These stories variously caused shock, laughter and nationwide acts of communal face-palming, yet they all shared the same lesson – by careful what you do, say or show on camera, as it may come back to haunt you!

Jackie Weaver: You have no authority

The start of 2021 witnessed the sudden rise to stardom of Jackie Weaver. “You have no authority, Jackie Weaver” became emblazoned on t-shirts, pumped out across the radio waves, and the talking point in many Zoom coffees. Leaving aside any employment or data protection issues when disseminating recordings of private meetings generally, I, for one, am glad this verbal dual made its way into our living rooms. What better way to get us through the cold, dark winter months than to witness a modern-day Gladiatorial battle set in none other than the Handforth Parish Council. (Did images of Geraldine Grainger, Alice Tinker, Hugo Horton and Jim Trotter spring to anybody else’s mind as they watched the drama unfold?).  Lesson? If you have (rightful) control over the Zoom eject button then don’t be afraid to use it – especially if a colleague has the temerity to question your authority.

The oversharing Spanish showerer

Not to be outdone by a British council in the year that Brexit happened, Torrelavega municipal council in Spain showed that Spanish councils, too, can get down and dirty… or, rather, up and clean. In a bid to kill two birds with one stone, councillor Bernardo Bustillo dropped his pantalones and jumped in the shower whilst listening in to a council meeting that was being livestreamed. The problem for Bernardo was that he had failed to turn off his video and, in so doing, became the real butt of the joke. Whilst his colleagues looked on in horror and tried to alert him via calls and messages to his phone, this wave of panic was drowned out by splashes of water behind a partially frosted pane of glass. After finishing cleaning behind his ears, real horror struck as Bernardo climbed out in full view. All jokes aside, poor Bernardo was left offering to tender his resignation following Shower-gate. Lesson? Always check and double check that the video is turned off and the microphone muted when showering by stealth.

The Texan kitty

Then, there was the wide-eyed, perplexed looking kitten, otherwise known as Rod Ponton, who stole our hearts from across the pond in a way no other Texan State Prosecutor has done before or since. Judge Roy Ferguson of Texas’s 394^th judicial district managed to control his laughter when Ponton attempted to make his submissions through his feline-faced friend. “I believe you have a filter turned on in the video settings. You might want to…” said the judge, at which point the desperate looking kitten interjected: “Can you hear me, judge?”. In case any doubt remained, Ponton went on to exclaim most seriously: “I’m here live. I’m not a cat”. Lesson? Do be careful when using filters and be sure to get the judge’s acknowledgement that, despite appearances, you are, indeed, not a cat!

Mrs Potato Head

Lizet Ocampo provided a further tale of filter-failure in the early stages of the pandemic as she appeared as a potato head for the duration of her Zoom meeting with colleagues. In much the same way as the Texan Kitty, the potato head was surprisingly good at capturing Lizet’s emotions much to her colleagues’ amusement. She had downloaded some funny filters for virtual happy hours she attended the weekend before.  What was appropriate for a Saturday afternoon social was not necessarily right for a Monday morning meeting with work colleagues, however. Fortunately, everyone saw the funny side and one of Lizet’s team went on to share the image on Twitter. Not surprisingly, the tweet went viral leaving Lizet to tackle the root of the issue head on by tweeting: “I yam potato boss”.  Lesson? If using your Zoom account for work and leisure purposes, always make sure you know how to change your settings back so that you do not come unstuck; nobody wants to talk to a (sack of) spud(s) on a Monday morning!

Thoughts for the year ahead…

We hope this glance back at a few of the funny yet embarrassing Zoom stories from the last two years provides you with an element of light-hearted relief as we go off on our Christmas breaks. Whilst these stories are real life examples of what, with distance, can be seen as moments of comic gold, they do remind us of the need to be careful not to do, say or show anything that we would not do, say or show if we were physically present in a meeting room.

For all the great benefits that technology has afforded us during the pandemic years, we hope that in 2022 we can meet many more of you again in person rather than via a computer screen. We will leave it to your judgement as to whether you wish to come dressed as a cat or a potato!

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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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As summer draws to a close, employers are looking forward to a smooth return of staff to the workplace for at least part of the working week.  In readiness for this, the Government has updated its NHS Test and Trace in the Workplace guidance to exempt certain groups from the requirement to self-isolate in certain circumstances.  Our briefing explains the changes and what they mean for employers.

What do workers need to tell their employers about self-isolation?

Workers who are told to self-isolate by NHS Test and Trace are legally obliged to notify their employer of that fact before they are due to attend work.  A failure by the worker to do so means they could face a £50 fine.  In turn, it is an offence for employers to require or allow workers to attend the workplace if they know that a worker has been told by NHS Test and Trace to self-isolate.   A failure to do so may result in a fine for the employer starting at £1,000.

However, the new NHS Test and Trace in the Workplace guidance provides that workers are not legally obliged to tell their employers that:

• they have been told by NHS Test and Trace that they are a contact of a positive case of COVID-19 where they are exempt from self-isolation (see below for details of who is exempt); or
• they have been “pinged” by the NHS COVID-19 app and advised (but not required) to self-isolate.

Workers falling into either of these groups are not legally obliged to self-isolate and may attend the workplace. However, the guidance says employers are “strongly encouraged” to support the workers who are pinged by the NHS COVID-19 app to self-isolate.

Who is exempt from self-isolation and when?

The new guidance states that from 16 August 2021 certain groups of people will not be required to self-isolate where they have been in contact with a positive case of COVID-19.  This covers situations where a person has been told by either NHS Test and Trace or the NHS COVID-19 app that they are a contact of a positive case.

The following groups are exempt from self-isolation in these circumstances:

• 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.

Although exempt from self-isolation, anyone in these groups will be advised (but not required) to take a PCR test.  If they choose to do so, they will not be required to self-isolate while they wait for the results.  They will also be advised to take the following precautions in the ten days after their contact with the positive case:

• limiting close contact with people outside their household, especially in enclosed spaces;
• wearing a face covering in enclosed spaces and where they are unable to maintain social distancing;
• limiting contact with anyone who is clinically extremely vulnerable; and
• taking part in regular lateral flow testing.

Are there any circumstances in which someone in an exempt group would have to self-isolate?

It is important to remember that the exemption from self-isolation does not apply in all circumstances.  Anyone who falls into the exempt groups will still be required to self-isolate if they:

• test positive for COVID-19; or
• show any symptoms of COVID-19 (in which case they should take a PCR test as soon as possible).

The self-isolation period is ten days from the day after the day of the positive test (if the worker had no symptoms) or ten days after the symptoms began.  If the worker is unable to work from home during the self-isolation period, then the absence should be treated as sick leave and paid accordingly.

What do these changes mean for employers?

Given that approximately 76% of over 16s are now fully vaccinated, the relaxation of the self-isolation rules should go some way to limiting disruption as workers return to the workplace.

Regardless of the strict legal position, employers may wish to introduce an internal rule asking staff in exempt groups to tell them if they have been notified by NHS Test and Trace that they are a contact of a positive case of COVID-19.  This information will help an employer discharge its duty to assess health and safety risks and ensure the health, safety and welfare of staff and third parties so far as reasonably possible.

For example, the employer may wish to adopt some, or all, of the precautionary measures recommended in the guidance.  In practice, this could mean ensuring that the worker in question is able to socially distance from others within the workplace or allowing them to work from home for ten days.  It could also mean that the worker is asked to reduce or cease contact with any clinically extremely vulnerable workers in the workplace for the same period of time.

Similarly, an employer may also ask staff to tell them if they have been pinged by the NHS COVID-19 app.  In appropriate cases, the employer may be able to support the worker to work from home, but where that is not possible this information will help the employer assess risk and take additional safety measures deemed necessary (such as those discussed above).

BDBF is currently advising many employers and employees on the challenges presented by the coronavirus pandemic, including preparing for the return to the workplace.  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.

NHS Test and Trace in the Workplace

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