Carousel_Arrow Chat icon_cookie IHT_trust_wills IR35 Combined Shape 2 Group 10 Login Mobile Menu Share Share Email SubMenuMobile Group 9 VAT View_Gallery View_List capital_allow Triangle 2 Copy Close construction cyberpro employment_tax_shares emplyer_solutions entrepreneurs_corps fee_protect Group 7 grant_fund Group i_Clock i_Consult i_Done i_Eligibility_Tick i_Enter i_Filter i_HMRC i_Negative i_Play i_Plus i_Reset i_Support_Legal i_Support_TaxDesk i_Support_VAT i_Tick noun_marketing_1872083 noun_online_2126759 i_download i_meet Group Copy 24 Group 18 noun_electrical_1240755 copy noun_Technology_2125422 noun_Science_2031115 i_tick_bullet_block international_tax patent_box private_client property_sdlt r_and_d reliefs_incentives Search specialist_tax status tax_indemnity valuation YouTube
Markel Insurances

12 Jul 2021

The removal of coronavirus legal restrictions in England: FAQs for Employers

The Prime Minister confirmed on 12 July 2021 that the ending of legal restrictions in place due to coronavirus ends in England on 19 July, as England proceeds to step 4 of the roadmap from that date.  Legislation revoking regulations which introduced these restrictions in England has been passed into law.  As public health is a devolved matter, different restrictions now apply in the rest of the UK.
 

At step 4 (which applies in England from 19 July), the government has removed outstanding legal restrictions on social contact, life events, and opened the remaining closed settings. The focus has shifted from law making towards individual and corporate responsibility for taking steps to control the spread of Covid-19.  The government will instead issue guidance, which is not law, for both individuals, businesses and employers on how they can help reduce the spread of Covid-19.
 
This guidance was updated on 16.7.21.  Guidance set out in this set of FAQs is based on the government’s announcements for step 4 of the roadmap as set out in the following link: https://www.gov.uk/government/publications/covid-19-response-summer-2021-roadmap/covid-19-response-summer-2021 and the six government sector guides for businesses on ‘Working Safety during coronavirus (Covid-19): Guidance from Step 4.

Which settings can open?

All settings are able to open at step 4, including nightclubs. Large events, such as music concerts and sporting events can resume without any limits on attendance or social distancing requirements.  All restrictions on life events such as weddings, funerals, bar/bat mitzvahs and baptisms will be removed, including the remaining restrictions on the number of attendees. There is no longer any requirement for table service at life events, or restrictions on singing or dancing.

Businesses that were required by law to display QR codes for customers to check in using the NHS Covid-19 app, to support NHS Test and Trace, are still ‘encouraged’ to continue to display these, although it is no longer a legal requirement to do so at step 4, or to collect customer data for the purposes of NHS test and trace. The government is also ‘encouraging’ businesses in England with large crowded, higher risk settings (such as night clubs) to use the NHS Covid Pass as a condition of visitor entry, in order to reduce the risk of Covid-19 transmission, although there is no legal requirement for businesses to do this. The Government may choose to mandate Covid-19 certification in certain venues at a later date if they deem this necessary.

Can employees be required to return to office working?

Yes. The government has stated that at step 4, it is no longer necessary for the government to instruct people to work from home. Employers can start to plan a return to workplaces.  Guidance states that the government “expects and recommends a gradual return over the summer”, although this is of course a matter for employers who can decide their own arrangements.  Prior to instructing employees to return to their normal workplace, employers are strongly advised to consult with the workforce beforehand. This is both in order for employers to meet their health and safety obligations and to maintain employees’ trust and confidence from an employment law perspective. Failure to comply with the employer’s health and safety consultation requirements is also a criminal offence (for guidance, please refer to our fact sheet on ‘Coronavirus Health and Safety Guidance for Employers’ on the hub). There are also a number of employment law claims that an employee can bring should employers fail to consult with their staff. It is up to employers to determine whether or not they wish employees to return to the workplace either entirely, or partly, or to continue homeworking fully.  Some employers are introducing hybrid working for employees, whereby employees split their time between home or remote working and office working (a template hybrid working policy is available on the Hub.  ACAS has also published guidance for employers on hybrid working).

How should employers manage employees who choose to continue to limit social contact?

The government recognises that individuals may choose to limit the close contact they have with those they do not usually live with in order to reduce the risk of catching or spreading Covid-19, particularly if they are clinically extremely vulnerable. Alternatively, some individuals may simply have a heightened perception of risk, or be feeling anxious about a return to the workplace after a long period of home working; or have concerns around travelling on public transport, particularly following the removal of the legal requirement to wear face coverings and with coronavirus cases still rapidly rising.  Employers will need to continue to reduce the risk of employees contracting coronavirus in the workplace by putting in place appropriate measures in accordance with the government’s ‘Working Safely’ guidance, with a particular duty of care continuing to apply to those that are clinically extremely vulnerable and therefore at higher risk of serious health complications should they contract coronavirus, regardless of Covid-19 vaccination status (see below).  The Employment Rights Act 1996 entitles employees to stay away from the workplace if they reasonably believe that it poses a serious and imminent health and safety risk to themselves or others e.g. because the employer has not implemented “covid secure” measures. This legislation provides protection if an employee is dismissed or treated to a detriment (such as disciplinary action) as a result of them taking appropriate steps to protect themselves.  There are also potential whistleblowing risks if an employee has genuinely held concerns about the safety of the workplace and they are subjected to a detriment for “blowing the whistle”.

Although there is no legal requirement to do so, unless (for example) social distancing is identified as a reasonable adjustment for a disabled employee (i.e. due to a physical impairment or mental impairment, including anxiety), or as a measure in a risk assessment for a pregnant employee, employers should take into account that some employees, particularly those who are clinically extremely vulnerable, may wish to continue to social distance and employers should seek to accommodate this in the workplace for those individuals where they can as a matter of good practice.  In general, employees should be reminded of the health and safety measures the employer has put in place to protect their and others’ health and safety. Where employers have carried out a Covid-19 risk assessment of the workplace and have implemented government guidance in doing all they reasonably can to keep their employees safe, this will be the best defence to a health and safety complaint and employees can be required to return to work where business circumstances require.

Will employers need to continue to carry out Covid-19 risk assessments?

Yes. Regardless of the ending of most of the legal restrictions and the changes to the government guidance from 19 July, employers still have a legal duty under the Health and Safety at Work Act 1974 and regulations made under the Act to ensure a safe working environment, including putting in place measures to reduce the risk of employees and others contracting coronavirus in the workplace so far as possible. Employers will need to review and, if necessary, update their existing Covid-19 risk assessments to ensure they are still sufficient and relevant in light of the new government guidelines or working practices.   Employers should take account of any future updates to the ‘Working Safely’ guidance, or changes in the workplaces, in preparing and reviewing their risk assessments.

What measures are employers advised to put in place?

The government has consolidated the 14 guides that applied until 19 July into six different work types in new published guidance on ‘working safely during coronavirus (COVID-19): guidance from step 4’ which applies from 19 July.
 
The Working Safely guidance sets out fewer recommended ‘covid-secure’ measures that employers are advised to implement in order to meet their duty of care in respect of managing the Covid-19 transmission risk under health and safety legislation i.e. the general requirement around social distancing and the use of face coverings in some settings is removed; although most of the remaining measures are broadly similar and will already be familiar to employers.

Although employers will need to tailor their measures to their specific workplace, each guide contains six “priority actions” which businesses should take to protect staff and customers across the various settings and sectors:

  1. All employers are required to carry out a Covid risk assessment to assess and manage the risks of coronavirus. This should be drawn up in consultation with workers or trade unions. Given it is a legal obligation to consult with employees on matters relating to their health and safety at work, this remains a key requirement.
     
  2. There is an emphasis on providing adequate ventilation (either natural or mechanical), including identifying areas of poor ventilation and taking steps to improve them. The guidance suggests that a CO2 monitor could help businesses assess whether a space is poorly ventilated. If employers can’t improve ventilation in poorly ventilated spaces, they should minimise use of these spaces.  Businesses are encouraged to make use of outside space where practical.
     
  3. Employers should clean areas of high contact more often.  They should ask their staff and customers to use hand sanitiser and to clean their hands frequently.
     
  4. Employers must not allow workers to attend the workplace if they know they are self-isolating as a result of a positive Covid-19 result, or coronavirus symptoms, or being told to do so by NHS Test and Trace. It is against the law for employers to do so.
     
  5. Although there is no longer a legal requirement to collect customer details, employers and businesses are still encouraged to do so in order to support NHS Test and Trace.
     
  6. There is an emphasis on communication and training to ensure workers are up to date on what safety measures are being implemented in the workplace.
Regulations that placed Covid-secure requirements on hospitality businesses, including table service, and distancing between tables, are lifted with effect from 19 July.

Should social distancing continue to be implemented in the workplace?

All remaining legal limits on social contact (currently 6 people or 2 households indoors, or 30 people outdoors) are removed with effect from 19 July in England and there are no longer restrictions on how many people can meet in any setting, indoors or outdoors. These legal limits on social contact numbers do not currently apply in the workplace in any case, but government guidance also removed the general requirement to observe social distancing in the workplace when social distancing guidance (2 metres or 1 metre with additional mitigations) is ended from 19 July. The requirement for social distancing is now replaced with guidance on ‘reducing contact for workers’ in the Working Safely guidance. Examples given for how this can be achieved are using ‘fixed teams or partnering’ or ‘cohorting’ (so each person works with only a few others) & reviewing layouts, using screens or barriers to separate people from each other, or using back-to-back or side-to-side working, rather than face-to-face working, so employers will need to consider the layout of the workplace in light of this.
 
Government guidance advises that individuals should ‘continue to consider’ the risks of close contact with others, particularly for those individuals who are clinically extremely vulnerable or not yet fully vaccinated (although there is no requirement to ask employees about their Covid-19 vaccination status). This means that employers will need to consider in their Covid-19 risk assessments, whether it is practical for these category of individuals to avoid close contact with others in the workplace where they wish to do so, or where this is identified as a reasonable adjustment for a disabled employee in an individual employee’s risk assessment.  Risk assessments should, in any case, include consideration of reducing contact between workers and others where possible in line with the Working Safely guidance. 

Will face coverings be required in the workplace?

The current statutory requirement to wear a face covering in some settings (such as shops) is lifted from 19 July in England. Face coverings are not currently a statutory requirement in most workplace settings, although employers may continue to require face coverings to be worn in the workplace based on their own risk assessments depending on their own settings.  Government guidance states that wearing a face covering will reduce the risk of the spread of Covid-19, where individuals come into contact with people they don’t normally meet in enclosed and crowded spaces. Updated Working Safely guidance for step 4 encourages the use of face coverings by workers or customers in enclosed and crowded spaces.  For this reason, although there will no longer be a statutory requirement to wear face coverings in any settings, employers may wish to retain rules requiring employees and visitors to wear face coverings based on their own risk assessments where, for example, the work premises are enclosed/poorly ventilated and/or more densely populated, or when employees are in communal areas where they may come into close contact with others. This will be a matter for the employer’s own assessment.

What measures should be put in place for clinically vulnerable and clinically extremely vulnerable employees in light of Covid-19?

The Working Safely guidance for step 4 advises employers that they “should give extra consideration to people at higher risk and to workers facing mental and physical health difficulties. Those who are clinically extremely vulnerable are no longer advised to shield. Employers should continue to support these workers by discussing with them their individual needs and supporting them in taking any additional precautions advised by their clinicians”.
 
Those who are clinically extremely vulnerable may also be asked to return to the workplace from 19 July in place of current guidance that they should work from home where possible.  Clinically extremely vulnerable individuals no longer have any additional rights to work from home under government guidance beyond 19 July 2021, although employers may agree for those employees to continue to work from home or be furloughed if both parties wish to agree to this while the Coronavirus Job Retention Scheme remains in place until October 2021 (bearing in mind that employers have been required to make a 10% contribution towards furloughed wages since July 2021 and are required to make a 20% contribution to furloughed wages from August 2021). Homeworking may be a reasonable adjustment for some disabled employees, along with other measures, such as social distancing, particularly where this is advised in a medical or occupational health report. Additionally, disabled employees who require support to work at home or in the workplace can apply for financial assistance from Access to Work. Access to Work may provide support for the disability-related extra costs of working that are beyond standard reasonable adjustments an employer must provide. Access to Work will prioritise Access to Work applications from disabled people who are in the clinically extremely vulnerable Group.

How will risk assessments for pregnant employees be affected?

Under health and safety legislation, employers will continue to be required to consider employees’ individual risks, such as clinical vulnerabilities, when carrying out workplace risk assessments. 
 
By law, employers are required to include risks to female employees of childbearing age in their general workplace risk assessment.  Pregnant women are classified as “clinically vulnerable” due to Covid-19 as they can be at greater risk of getting severely ill with Covid (particularly in their final trimester), resulting in a greater health risk for them and their unborn child should they contract coronavirus.  Public health advice for pregnant women is to be particularly rigorous in following government guidance on “Covid secure” measures, especially during their last trimester of pregnancy, or where they are clinically extremely vulnerable: https://www.gov.uk/government/publications/coronavirus-covid-19-advice-for-pregnant-employees/coronavirus-covid-19-advice-for-pregnant-employees.  Although the guidance has not been updated to reflect the general ending of social distancing requirements, pregnant women are still advised to be more cautious than lower risk groups and employers should take this into account, as well as any medical advice received when carrying out risk assessments for pregnant employees. This guidance states, in relation to pregnant women who are in their third trimester or who are clinically extremely vulnerable that their employer should ensure they are able to adhere to “any active national guidance on social distancing”.  Although there is no longer any national guidance to maintain social distancing in the workplace from 19 July in England, The Royal College of Obstetricians and Gynaecologists (RCOG) and The Royal College of Midwives (RCM) are concerned that the combination of restrictions easing from 19 July in England, an increasing prevalence of Covid-19 in the community and hesitancy among pregnant women to get vaccinated will lead to a further increase in infections among pregnant women and have advocated (as clinical advice) that pregnant women continue social distancing where possible, particularly during their third trimester (i.e. where the individual is more than 28 weeks pregnant). Where an employee’s midwife or GP advises social distancing, or where a pregnant employee chooses to do so, employers are advised to incorporate social distancing as a measure in the risk assessment, particularly during the employee’s third trimester or where a pregnant employee falls into the “clinically extremely vulnerable” category.

Should employers check employees’ Covid-19 vaccination status?

The government has confirmed that Covid-status certification will not be a statutory requirement as a condition of entry for visitors to any setting. Government guidance states that organisations are already able to ask visitors accessing goods and services, for proof of Covid-status, as long as they meet existing legal obligations including under equality law.
 
In an employment context, whether employers can ask employees to disclose their Covid-19 vaccination status, will depend on whether a Covid-19 vaccination has been identified as a measure to reduce the risk of coronavirus transmission in the workplace in the employer’s risk assessment, for example where employers mandate vaccination for this reason. The ICO (which provides guidance on compliance with data protection legislation) has published advice to organisations who are collecting vaccination status data confirming that collection of this data must be necessary and relevant for a specific purpose under data protection legislation. In an employment context, the processing condition employers are likely to rely on is Article 9(2)(b) of the UK GDPR which permits the data controller to process special category data if processing is necessary for carrying out the obligations in the field of employment.
 
It is likely to be easier to justify collecting such information in certain workplaces, for example in a health or care setting where coronavirus presents a specific risk; otherwise it may be difficult for employers to demonstrate that this is “necessary”.
 
Before processing any data regarding vaccination status, if the use of this data is likely to result in a high risk to individuals (e.g. denial of employment opportunities for those that are not vaccinated) the employer will need to complete a data protection impact assessment (DPIA). The DPIA would need to consider why such data is needed. Where the employer’s risk assessment includes Covid-19 vaccinations as a transmission control measure, they will have a legitimate reason to collect such data, while coronavirus remains in general circulation. However, the ICO warns that keeping vaccination status data for monitoring purposes only would be more difficult to justify.
 
Employers should nonetheless only collect the limited information required and hold it for no longer than necessary. Employees should be told, usually in a privacy notice, why the information is needed, how it will be stored, how long it will be retained and who will be able to access it.   During the recruitment stage, unless it is strictly necessary to do so either because data on Covid-19 vaccination status intrinsic to the nature of the job or necessary for the purpose of implementing reasonable adjustments for a disabled candidate, employers should avoid asking about vaccine status where this is justified prior to making a job offer. There is a risk otherwise that it could be perceived to be a prohibited health question under the Equality Act 2010, putting the employer at risk of a discrimination claim.
 
Individuals can demonstrate their Covid-status through the NHS COVID Pass on the NHS app once they have completed a full vaccine course (typically 2 courses of a Covid-19 vaccination), a recent negative test, or proof of natural immunity through having contracted Covid-19. Guidance for employers on Covid-19 vaccinations and Covid-19 testing can be found in our fact sheet on ‘Coronavirus Health and Safety Guidance for Employers’ on the hub.

Can employers require employees to take lateral flow tests?

Not necessarily.  The government is still encouraging people to take a rapid lateral flow test twice a week, including “to help manage periods of risk such as returning to the workplace”. Regular asymptomatic testing will be particularly focused on those who are not fully vaccinated, those in education, and those in higher-risk settings such as the NHS, social care and prisons. Government guidance states that people may also wish to use regular rapid testing to help manage periods of risk such as returning to the workplace, after close contact in a higher risk environment or when spending prolonged time with a more vulnerable individual.

However, it remains a voluntary decision for employers whether to ask their staff to take a test (although employers in higher-risk settings will usually require it as a matter of contract or as a “reasonable management instruction”). Requiring employees to take lateral flow tests or undergo other Covid-19 testing will not necessarily be proportionate, so employers will need to be able to justify such an approach on health and safety grounds.
 
One of the main considerations for employers is whether it will be “necessary and proportionate” to conduct Covid-19 testing of staff under employment law i.e. whether or not it would amount to a “reasonable instruction” in the circumstances. Instructing an employee to stay away from work pending a negative Covid-19 test when they are not required by law to self-isolate and when they are “ready, willing and able” to work and so are entitled to be provided with work and to be paid, could lead to the risk of a tribunal claim for unlawful deductions from wages (regardless of the employee’s length of service), or, for example, a constructive unfair dismissal claim where the employee has at least 2 years’ service. If the employer can show that the requirement to take a test as a condition of attending the workplace is reasonable e.g. where the employee is displaying flu or cold symptoms which the employer reasonably suspects could be coronavirus, the employer may be able to argue that the employee is not, in reality, available to work as testing is necessary to comply with health and safety obligations and so (lawfully) can be instructed to remain off work without pay when they unreasonably refuse testing, but this is risky.
 
From a data protection perspective, since processing of test data will be health information amounting to “special category data”, additional safeguards will apply to the testing data. Full data protection considerations can be found in the ICO’s guidance on testing, but in summary employers should:

  • Conduct a data protection impact assessment to show their approach to testing is compliant with data protection law.
     
  • Show they have a lawful basis for processing testing data. The ICO confirms that in an employment the lawful basis is likely to be “legitimate interests” (e.g. reducing the risk of asymptomatic Covid spread in the workplace), in which case, employers do not need employees’ consent to process testing data.
     
  • Be clear about what they are trying to achieve by testing employees and whether gathering personal health information is necessary for that purpose and that the approach for gathering it is reasonable, fair and proportionate. This information is usually communicated in both a testing policy and employee privacy notice.
Employers cannot of course cannot compel an employee to take a Covid test, although employers may introduce (or have already introduced) a testing policy that provides for certain measures to be taken, such as disciplinary action, where an employee unreasonably refuses to take a Covid-19 test, for example, as a failure to follow a reasonable management instruction which has been introduced for health and safety reasons once the employer has taken into account the employee’s reasons for refusal; or that simply encourages staff to participate in testing. A requirement for Covid-19 testing is more likely to be reasonable and proportionate in certain settings such as social care and health.  For most employers, the most appropriate course of action is likely to be to encourage employees to participate in Covid-19 testing, rather than to mandate testing as a condition for attending the workplace. Where employers wish to encourage or mandate testing, employers should introduce a Covid-19 testing policy in consultation with employees. An example template Covid-19 testing policy is available on the Hub.

What about employees who are required to self-isolate due to coronavirus?

As set out in legislation, businesses must not require a self-isolating worker to come to work, and should make sure that workers and customers who have coronavirus symptoms do not attend the premises.  Employers should continue to remind employees (preferably in writing) not to attend work where they have symptoms of coronavirus or are required to self-isolate by law i.e. if told to do so by NHS Test and Trace, or if returning to England from amber or red list countries.  From 19 July, fully vaccinated people returning to England from amber list countries will not need to quarantine.
 
The Government has confirmed that from 16 August 2021, double vaccinated people and those who are under 18 years old will no longer be legally required to self-isolate if they are identified as a close contact of a positive Covid-19 case. From this date, employers may also permit employees who are double vaccinated to attend work where they have been a close contact of a confirmed positive Covid-19 case.  If it comes to the employer’s attention that an employee has been a close contact of a positive Covid-19 case, this will require the employer to check the employee’s Covid-19 vaccination status before they can be permitted to attend the workplace. We await details on how this should be done.
 
Those who are under 18 years and double vaccinated individuals identified as close contacts will continue to be advised to take a PCR test. Anyone who tests positive following the PCR test will still be legally required to self-isolate, irrespective of their vaccination status.
 
The government has stated that until at least the end of September, self-isolation enforcement and support will otherwise continue as it is now. Positive cases and close contacts who cannot work from home and would experience financial hardship from isolation may be eligible for the £500 Test & Trace Support Payment or financial support from their local authority. Employees who cannot work from home when self-isolating due to coronavirus will continue to be entitled to Statutory Sick Pay (SSP) from their employer, where eligible, with the SSP rebate scheme for SSP paid due to self-isolation remaining in place for eligible small and medium employers. 
 
Particularly given the rapidly rising numbers of cases of coronavirus, the requirement for staff to self-isolate will inevitably continue to case business disruption for employers and thought will continue to need to be given to how work can be covered at short notice, either among existing staff or, if viable, using agency staff. Workers can work from home while self-isolating if appropriate/practical. 

How will the easing of restrictions impact on Employer’s Liability Insurance?

Although it is outside the scope of this guidance to provide detailed commentary on insurance considerations, as a general overview, the 1969 Employer's Liability (Compulsory) Insurance Act and associated regulations require every employer carrying on business in Great Britain to insure against liability for "bodily injury or disease" sustained by its employees where that arises in the course of that individual's employment. Disease is not defined in the Act, but is likely to include the risk of an employee contracting Covid-19 in the workplace.
 
Employers requiring their employees to return to their normal place of work will need to ensure that they have conducted appropriate risk assessments to identify and manage risks sufficiently, including reviewing Covid-19 risk assessments in the light of updates to the government’s ‘Working Safely’ guidance for step 4.  Failure to do so could mean that employers are at risk of a recovery claim from their insurers, as the regulations allow for rights of recourse by EL insurers where the employer has breached its duties to its employees or failed to comply with its statutory duties, including its duties to protect against the risk of contracting Covid-19.

How are education settings impacted?

The Government will change the controls that apply in early years, schools, colleges and higher education institutions to maintain a baseline of protective measures while maximising attendance and minimising disruption to children and young people’s education. From step 4 children will no longer need to be in consistent groups (‘bubbles’), and early years settings, schools or colleges will not be required to routinely carry out contact tracing, which will help to minimise the number of children isolating. Contact tracing in specific educational settings would only be triggered if deemed necessary in response to a local outbreak.  There will be no restrictions on in-person teaching and learning in universities. 

How are care home settings impacted?

In care homes, the government has lifted restrictions that limit each resident to five named visitors. Specific guidance will advise how visits should be conducted to keep care homes safe whilst also making visits as normal as possible. Care homes will need to retain infection prevention and control measures essential to protecting residents from the risk of infection. Adult care homes are encouraged to continue to offer regular testing for staff and residents. the government has already introduced draft legislation which, once this becomes law, will require those entering certain care homes in England (unless individuals are exempted) to be fully vaccinated against Covid-19.  Please refer to our fact sheet on ‘Covid-19 vaccinations and care homes’ for guidance on this.

Next article in series

12 Jul 2021

Right to Work checks since 1 July 2021: what employers need to know