Law guide: Workplace

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Coronavirus (COVID-19)

Coronavirus (COVID-19)

Contents

The workplace and coronavirus

In this section you'll find information and updates related to coronavirus that are relevant to the laws on working.

The UK's response to coronavirus is changing regularly and often very quickly. While we'll continue to make every effort to keep this page up to date, there may be short periods where what you read here is not the latest information available. Where possible we've tried to provide links to official sources, so you can check the current situation.

If your job is at risk

Coronavirus is an economic crisis as well as a health crisis – if you're at risk of losing your job, our Workplace disputes section has information to help you check that your employer is following a fair process. There are sections on unfair dismissal, redundancy, temporary lay offs and employer insolvency.

Statutory sick pay (SSP) during coronavirus

Qualifying for SSP

This remains the same as before the pandemic. In a nutshell, a worker or employee will qualify to receive statutory sick pay (SSP) if they are already working for their employer, earn an average of at least the current weekly Lower Earnings Limit, and are ill for at least 4 days in a row (including any days they are not working). They must also inform the employer that they are sick and give them any required medical evidence within the time limit the employer sets.

When SSP must be paid due to coronavirus

If you qualify for SSP, it must be paid if you're unable to work because you're self-isolating for one of the following reasons:

  • You, or someone you live with, have symptoms of coronavirus.
  • You, or someone you live with, have tested positive for coronavirus.
  • You've been notified by the NHS or public health authorities that you've come into contact with someone with coronavirus.
  • You've been told by a medical professional to self-isolate for 14 days before visiting hospital for an operation or medical treatment.

Note that there are other reasons that were previously eligible for SSP, but aren't currently because they're no longer relevant – e.g. those who were self-isolating because of being told to shield, or because someone in their support bubble (or extended household in Scotland/Wales) had symptoms.

Before the pandemic, SSP was only payable from the 4th day of sick leave. However, for all of the above, SSP will be payable from the first day that you're unable to work.

Legal obligations for employers and staff regarding self-isolation

Since 28 September 2020, there is a legal obligation on you to tell your employer if you're required to self-isolate. There are also rules that prevent your employer from asking you to break your self-isolation in order to work for them. This applies to all employers in England.

When the obligations apply

The obligations apply when you're told to self-isolate due to:

  • having tested positive for COVID-19;
  • having had close contact with someone who has; or
  • returning to England after time abroad.

The first 2 of these apply where you're told to do so by either the health service or local authority. They do not apply if you were told to self-isolate through the NHS COVID-19 App.

Your obligations

If you're told to self-isolate and don't already work from your isolation location during the isolation period, you must tell your employer that you're required to self-isolate, along with when your isolation period will start and end. You must do this as soon as reasonably possible, and before you're due to start work during the isolation period.

If you're an agency worker, you must inform your employer, the principal or the agency.

Failure to meet these obligations could lead to a fine of £50.

Your employer's obligations

If your employer is aware that you must self-isolate, they must allow you to remain in the place where you're self-isolating. They must not require you to leave it to attend work. You can still work if you're well and can do so from where you are (e.g. home).

Failing to meet these obligations could lead to your employer being fined £1,000, rising to as much as £10,000 for serious or repeat offences.

Health and safety

Even though COVID-19 restrictions are being lifted, your employer is still legally responsible for your health and safety, whether you're an employee, worker or a self-employed contractor. This means they must reduce workplace risk of contracting COVID-19 to the lowest reasonably possible level by taking preventive measures.

Your employer may be held liable if you contract COVID-19 and it can be traced to your workplace (which is possible if, for example, you experience an outbreak). This could happen if they've:

  • Not properly complied with health and safety infection-control measures; or,
  • Been negligent by doing or failing to do something which was reasonably foreseeably able to cause you to become infected.

You could potentially make a personal injury claim against them. They could even be liable for further infections in your household.

They could also be investigated and prosecuted by the Health and Safety Executive – and that applies even where there's no infection, if they're found not to be following safe guidelines.

We have more general sections on both Employers' responsibilities and Employees' responsibilities.

Government guidance

There are specific government guidelines for businesses and self-employed people in:

Coronavirus risk assessments

Complying with the government guidance will not absolve your employer of liability – they'll need to show that they've carried out a risk assessment that adequately considers the impact of you returning, and that they've carried out all of the actions arising from it.

Advice is available on the steps an employer should follow when doing a COVID-19 risk assessment. In general, it points out that they'll need to:

  • identify what work activity or situations might cause transmission of the virus;
  • think about who could be at risk;
  • decide how likely it is that someone could be exposed; and,
  • act to remove the activity or situation, or if this isn't possible, control the risk.

Examples of what to include in a risk assessment are also available from:

Although your employer only has to record your risk assessment in writing if they have 5 or more employees, creating supporting documentary evidence of how they've conducted the assessment will be useful – it could help to reassure you and defend themselves if they're investigated by the HSE or subject to any claim.

Sharing coronavirus risk assessments

Your employer should share the risk assessment and discuss it directly with you and other staff unless they recognise any trade unions, in which case it should be shared and discussed with them instead.

There are 2 sets of regulations that set out how they must consult with you and any trade union. Which one they need to comply with depends on whether they recognise a trade union and have appointed trade union representatives.

You can find out which law applies to your employer by using the HSE flowchart. Once you know which applies, you can read the HSE guidance on how to consult and involve employees and their representatives on health and safety matters in a way that complies with these regulations.

Failing to follow the regulations is a criminal offence and HSE inspectors may take enforcement action where your employer can't show that they've complied with it.

A possible agenda for the discussion of the COVID-19 risk assessment with you or the trade union could look like this:

  • The specific steps they're taking to remove the risk of catching the virus or, if that's not possible, controlling it
  • Safety measures being applied to the workplace building (particularly if it's shared with other businesses)
  • When these will be completed (if not done already)
  • When they intend to open (if not already open)
  • How they intend to decide (or have decided) who will return and how it will be implemented
  • Changes to working patterns and/or other changes you can expect on returning
  • How outbreaks of the virus in the workplace (including any shared building) will be handled
  • Changes the trade union/staff believe should be made
  • How agreed changes can or will be implemented

Other safety considerations

Your employer shouldn't let COVID-19 distract them from other safety considerations. In particular, they must not implement unsafe coronavirus solutions – e.g. redistributing work in ways that could lead to stress or physical injury from overwork; or having staff work alone at unsafe locations or times of day.

All employers with over 50 members of staff are expected to publish the risk assessment on their website.

Homeworking health and safety

Homeworking remains a key method of controlling the spread of coronavirus.

Your employer has the same health and safety duties to you when you're at home as they do when you're in the workplace, though you must take reasonable care of your own health and safety.

It's particularly important at this time that they consider and monitor your mental health.

If working from home is jeopardising your health or safety in some way (e.g. it's having a serious impact on your mental wellbeing), they could give you the option of returning to the workplace if it will help – provided they've followed the government guidance (see above).

Homeworking risk assessments

Ordinarily, they'd visit you at home to perform a risk assessment, but that might not be desirable in the current situation. They could ask you to assess yourself by sending you a questionnaire about your home workstation – they can then tell you what action to take (if any).

They should review the assessment if your circumstances change (e.g. if you move home, change the room you work in, or they give you new equipment to use).

More on homeworking is below.

Washing facilities

Your employer is legally required to provide adequate toilet and washing facilities. This includes:

  • Enough toilets and washbasins for those expected to use them
  • Hot and cold running water
  • Enough soap or other washing agents
  • Hand towels (preferably disposable) or a hand-dryer
  • Toilet paper
  • Drinking water

Individuals with disabilities must be able to easily access the facilities.

If possible, your employer should try to provide extra handwashing stations around the workplace.

Mental health

Acas have published guidance for employers and employees on managing mental health during the pandemic. It suggests that employers may consider appointing a mental health champion or setting up a mental health support group.

Your employer should be in regular contact with you and try to create an environment where you feel able to be open and honest about how you're feeling.

Reporting of COVID-19

Your employer must make a report under the Reporting of Injuries, Diseases and Dangerous Occurrences Regulations when:

  • An unintended incident at work has led to a member of staff possibly or actually being exposed to coronavirus. This must be reported as a dangerous occurrence.
  • A member of staff has been diagnosed as having coronavirus and there is reasonable evidence that it was caused by exposure at work. This must be reported as a case of disease.
  • A member of staff dies as a result of workplace exposure to coronavirus.

See RIDDOR reporting of COVID-19 for more.

Vaccinations and the workplace

As more and more people are being vaccinated, you may be wondering if this affects any of your employer's responsibilities.

Can employers require all staff to be vaccinated?

This is complex and currently unclear. The law is evolving, and the legal position isn't straightforward.

Although the government has powers to prevent and control the spread of infectious diseases, it doesn't have power to require everyone to undergo medical treatment. This includes vaccination.

The government's Green Book on immunisation states that before starting any medical treatment, consent from the individual is needed. This is a legal principle developed over time by case law and includes administering vaccines. This makes it difficult for your employer to automatically insist on it.

However, from 11 November 2021, a new law will make double vaccination a requirement for nurses and personal care workers to continue working in care homes in England, unless medically exempt. This will also apply to all agency workers, volunteers, healthcare workers and tradespeople who might be engaged by the care home (but not visitors).

The government has also started consultations to see whether making COVID-19 and flu vaccination a condition of employment to other health and social care sectors.

There's currently no other law that says individuals must have the vaccine, making it difficult for your employer to automatically insist on it without your consent. But in time, employers in certain other sectors may have a right to require their workers to be vaccinated.

Can employers require certain staff to be vaccinated?

Possibly, but again the legal position still isn't straightforward.

The Health and Safety at Work Act 1974 requires your employer to take all reasonably practicable steps to ensure the health, safety and welfare at work of all their staff (a similar duty exists under case law). There is also a legal duty (under case law) for you to obey the lawful and reasonable orders of an employer. The combination of these 2 requirements may justify requiring some staff to be vaccinated.

Reasonableness is a question of degree. Relevant considerations are likely to include:

  • The nature of the role
  • Your individual circumstances (e.g. if you're extremely vulnerable)
  • The risks to other staff or people you encounter (e.g. those you're in regular contact with)
  • The workplace's size/layout.

On this basis, it may be reasonable – for example – for an employer to require certain staff to be vaccinated, such as care home workers (as the government has done) or other staff working in healthcare or education sectors who have close contact with people who are vulnerable to being infected and face potentially life-threatening consequences.

But it's less likely to be reasonable for staff who have limited contact with others and for whom other protective measures can be put in place. For them, a key question is likely to be whether vaccination provides greater protection than other measures.

This raises 2 issues:

  • It's not yet clear if vaccination reduces or prevents transmission of COVID-19. Public Health England states that vaccinated health and care staff will be 'less likely' to pass on infection, and that it's highly likely that any infection in a vaccinated person will be less severe.
  • It's also unclear how long the protection offered by the different vaccines will last. This makes it more difficult to argue that compulsory vaccination is reasonable to keep others safe. It also makes it clear that vaccination is not (for now at least) a substitute for workplace COVID-secure measures.

Unfortunately, there are no easy answers here – you'll need to get legal advice if your employer is requiring that you get vaccinated and you're unhappy with it. Whether or not this is reasonable will depend hugely on your circumstances.

Can employers put vaccination requirements into your contract?

It's potentially problematic for your employer to change your contract to add a compulsory vaccination requirement. They'll need your agreement – if they make the change without it, they'll be in breach of contract and the original terms of the contract will remain in place. You then have options:

  • You can ignore the breach by continuing to work without complaint under the new terms.
  • You can work under the new terms under protest and claim for breach of contract. If the change imposed is substantial, your employer might be deemed to have dismissed you, meaning you could also claim for unfair dismissal.
  • If the breach of contract is fundamental, you can (if you're an employee) resign and claim for constructive dismissal.

If you are just starting a job, it may be easier for your employer to put the vaccination requirement into your contract. However, unless they're recruiting significant numbers of people, this is unlikely to result in any greater protection for their overall workforce. It potentially also opens them up to discrimination claims (more on this below).

In short, it's currently risky – get legal advice if your employer tries to do this and you're not happy with it.

What if your employer still wants to make vaccination a requirement?

Whether they intend to require any staff to be vaccinated by implementing a policy or inserting a contractual clause, your employer must first:

  • Undertake a detailed risk assessment to evidence why COVID-19 vaccination is required in addition to compliance with the COVID-secure guidelines already in place.
  • Consult with any workplace representatives or trade unions (if applicable).

They must also recognise that vaccination may not be suitable for all and make allowances for that. For example:

  • Public Health England advises that individuals with immunosuppression may not make a full immune response to vaccination against COVID-19, and that individuals experiencing prolonged COVID-19 symptoms ('long COVID') may need to defer vaccination.
  • A very small number of people cannot have the vaccine, such as those with severe allergies.
  • While pregnant women are being offered the vaccine, certain types of vaccine are being recommended to them over others.

Indirect discrimination

A mandatory vaccination requirement for employees is likely to amount to a provision, criterion or practice that puts individuals with a protected characteristic at a particular disadvantage compared with others who do not have that protected characteristic. In other words, it's likely to be discrimination under the Equality Act 2010.

A vaccination requirement could put employees with one of the following protected characteristics at a particular disadvantage:

  • Disability

Some of the vaccines in production are not suitable for certain individuals with suppressed immune systems. Some individuals might be advised not to have the vaccine due to a medical condition or may have severe trypanophobia (fear of needles). Both could mean they have a disability and be protected under the Equality Act 2010 if they refuse the vaccine.

Note, though, that those with a history of anaphylaxis (severe and potentially life-threatening allergic reactions) to food, drugs, or insect stings, have been advised that they can still receive any COVID-19 vaccine unless they're known to be allergic to a previous does of the same make of vaccine or any of its components.

  • Pregnancy or maternity

Current government advice is that pregnant women should be offered a vaccine, but that ideally they should not be offered the AstraZeneca vaccine. This could potentially lead to delays in getting vaccinated. Indirect discrimination does not apply to the protected characteristic of pregnancy and maternity; however, a woman who is disadvantaged by her employer's vaccination policy due to pregnancy or maternity could bring an indirect sex discrimination claim.

  • Race

Research by SAGE published in December 2020 showed marked differences between different ethnic groups in willingness to receive the COVID-19 vaccine.

  • Religion or belief

It's possible that the protected characteristic of religious or philosophical belief could protect certain religious or moral objections to the vaccine.

Note that:

  • The COVID-19 vaccines currently being used in the UK don't use pork gelatine and are endorsed by the British Islamic Medical Association, Hindu Council UK, and the Board of Deputies of British Jews (that doesn't, though, stop religious objections on other grounds).
  • Laws and regulatory agencies worldwide currently require that new drugs and treatments are tested on animals before clinical trials on humans. Shark liver oil is also being considered or used in some vaccines. While veganism is a protected belief, the Vegan Society accepts that vaccination 'will play a fundamental role in tackling the pandemic and saving lives' and encourages vegans to look after their health and that of others. But it doesn't represent all vegans.
  • Other employees may reject the vaccine because embryonic tissue was used to test or develop the vaccine.
  • Anti-vaccination beliefs based on a wide variety of conspiracy theories may not be protected as a philosophical belief. That's because there isn't an adequately coherent belief system behind them and such beliefs may not be worthy of respect in a democratic society. That doesn't stop such beliefs being protected if the basis for them exists less at the fringes.

Avoiding indirect discrimination

Your employer would need to ensure that any mandatory vaccination requirement is justifiable as a proportionate means of achieving a legitimate aim, or is phrased in terms that allow for exceptions.

The burden is on your employer to show justification. They must show that:

  • They were pursuing an identified legitimate aim. Protecting the health and safety of staff, service users and third parties will very likely be an uncontroversial legitimate aim.
  • The measures taken to achieve that aim were appropriate. Your employer must show that their actions actually contribute to the pursuit of the legitimate aim. For evidence that it is appropriate, your employer will need to show that vaccinations prevent transmission of the virus. While there is currently insufficient evidence to support the position that vaccination totally prevents transmission in the workplace, there is evidence that it reduces the risk of transmission. In any event, it would be difficult to criticise an employer for trying to reduce transmission in its workplace by encouraging vaccination, even if it was subsequently shown that this had little or no impact.
  • The measures taken to achieve that aim were proportionate. To establish this, your employer must demonstrate that the measures taken were 'reasonably necessary' to meet the legitimate aim. Their actions will not be considered reasonably necessary if they could have used less discriminatory means of achieving the legitimate aim.

On this basis, proportionality may be a more difficult hurdle for employers at the current time. Compliance with the COVID-secure guidelines and introducing regular testing could be a more effective and less discriminatory means of achieving a health and safety legitimate aim.

Direct discrimination

An employer's actions in requiring vaccination of a particular employee, or in treating them less favourably because they are unvaccinated, could directly discriminate against them and breach section 13 of the Equality Act 2010.

Unlike indirect discrimination, direct discrimination cannot be justified unless it is on the ground of age.

Can employers take action against staff who refuse to be vaccinated?

In theory, assuming your employer has legitimately introduced a compulsory vaccination policy or a contractual vaccination requirement, yes. But there will be risks.

Physically enforcing vaccination will be a form of assault and, therefore, a criminal offence. Also, if they compel you to get a vaccine and you then suffer an adverse reaction, you could try and bring a personal injury claim against them.

Instead, they might consider starting disciplinary proceedings based on your failure to comply with a reasonable management request arising from a policy or contractual requirement. Your employer must start with a proper investigation into your circumstances. There are many reasons why you might reasonably refuse a vaccine: e.g. medical advice, religious or philosophical belief, pregnancy, disability, wanting to keep control over your medical choices or wanting to wait for more evidence of safety.

The critical point is that they must always allow for exceptions. They should listen to any concerns and objections and take them seriously. Even if they've put in place a policy or contractual requirement, they won't be entitled to act on it if your refusal is reasonable.

Note that:

  • Pressuring you to be vaccinated through threats of disciplinary action, carries real and potentially significant legal and financial risks. A dismissal resulting from the implementation of such a policy may give you grounds for claiming unfair dismissal.
  • Any policy or contractual requirement about vaccination that adversely affects people from a protected group (race, age, sex, disability and religion/belief being the most likely) will potentially be indirectly discriminatory.

Even if your employer doesn't require staff to be vaccinated, it should ensure that its workplace policies do not indirectly discriminate against unvaccinated staff.

For example, it may be possible (depending on a whole range of factors, including the effectiveness of the vaccine against existing variants) that employers could relax COVID-secure protective measures only for vaccinated staff, once all age groups in your workplace have had a reasonable opportunity to be fully vaccinated. Employees who cannot be vaccinated can continue to use appropriate protective measures in accordance with current COVID-secure guidelines, to protect both them and any other unvaccinated colleagues, clients/customers and workplace visitors. Alternatively, they could be redeployed.

Can an employer prevent unvaccinated employees from entering the workplace?

Your employer should carefully consider whether it is appropriate to prevent unvaccinated staff from entering their workplace before making a decision. Current government advice is clear that the vaccination status of a workforce has no impact on the COVID-secure guidelines that employers should follow. Further, the extent to which vaccination reduces the risk of transmission is still unclear.

But this must be balanced against your employer's health and safety obligations to you and those entering the workplace. There can be serious consequences for non-compliance.

For most employers it will boil down to whether there are any extremely vulnerable staff working within 1 metre of unvaccinated colleagues on a daily or other regular basis. Even then, alternative measures should be considered, such as re-arranging working time pattens to avoid prolonged contact or re-assigning individuals to a different location in the workplace.

Where unvaccinated staff are retained under a zero-hours contract, your employer could simply not offer future work to them. However, there are potential discrimination risks.

For staff on fixed-hours, your employer could consider all the alternatives to vaccination, such as:

  • allowing these staff members to continue to work from home, if possible;
  • temporarily changing their role or responsibilities to minimise risk in the workplace as far as possible;
  • regular testing; and
  • regular health and safety reviews to ensure that they are up to date with, and properly implementing, the COVID-secure guidelines for your particular industry.

However, your employer must ensure that staff working remotely do not suffer any detriment, and consider that vaccinated workers might consider it a detriment to be required to come back to work. To facilitate workforce relations, a hybrid working arrangement for all staff may be preferable.

What am I entitled to be paid if I refuse to be vaccinated?

This issue should only arise where your employer has lawful grounds to prevent unvaccinated staff from entering the workplace.

Employers must pay staff who can undertake their role remotely as normal. If you're unable to carry out your role remotely, the issue of pay is problematic. You could argue that you are willing and able to work and should therefore be paid in full. However, the employer's position will be that you cannot work for health and safety reasons.

Statutory sick pay is not available where you are fit and able to work. Workers who were shielding were an exception to this, but shielding has now ended.

Assuming that there are no medical or other legal grounds for you not being vaccinated, your employer's options include:

  • Laying you off – if you're an employee and your contracts allow it.
  • Suspending you for disciplinary reasons – but you will be entitled to be paid in full until the outcome of the disciplinary procedure.
  • Asking you to use your annual holiday allowance or taking unpaid leave.

Where you're unable to be vaccinated for medical reasons, or refuse vaccination on, for example, religion or belief grounds, it is possible that your inability to work is due to an 'unavoidable impediment' or external constraint and that your employer must continue to pay you.

Can employers relax safety measures after vaccination?

The short answer is not yet. The government still has COVID-secure guidelines for employers to follow, as it's still too early to rely on vaccinations to dispense with them.

Your employer should therefore be cautious about treating the vaccine as a mechanism to remove any measures. Instead, they should continue to follow government guidance and monitor it for changes.

But vaccination might alter your employer's approach for some highly vulnerable staff. Having the vaccine means that most of these workers can better protect themselves and, subject to an individual risk assessment and both vaccine doses, they may be able to return to the workplace. However, your employer should consider your individual needs and support you in taking any additional precautions advised by your clinicians.

Also, your employer may need to take extra steps to protect any staff who have a genuine reason (medical or otherwise lawful) that prevents vaccination.

Are there data protection implications?

If your employer collects any information about whether you have (or haven't) been vaccinated, they must handle it as special category data in accordance with the Data Protection Act. See the Information Commissioner's Office guidance on vaccinations for more.

Going back to the workplace during COVID-19

Now that many government restrictions have been lifted, your employer may want or need to bring you back into the workplace to work. Understandably, you may remain reluctant or unwilling to return.

Legal protection

If you're an employee or a worker, you're protected by law if:

  • you believe being at work or doing certain tasks puts you in serious and imminent danger; and
  • your belief is judged to be reasonable at the time that you take appropriate resulting action.

The resulting action you could take in these circumstances includes:

  • Leaving (or proposing to leave) the workplace or (while the danger persists) refusing to return to it (or any dangerous part of it) if you could not be reasonably expected to avoid the danger; or
  • Taking (or proposing to take) appropriate steps to protect yourself (or others, such as members of your household) from the danger. This can include informing your employer of your concerns by appropriate means and not returning to work.

The protection applies even where your reasonable belief is mistaken, the serious and imminent danger is lawful, or the danger is caused by customers or other staff not following the rules. It doesn't matter if your employer disagree – your belief (from your perspective) just needs to be reasonable.

If you're an employee and you're dismissed due to this, you can make an unfair dismissal claim, no matter how long you've worked for your employer (if you're a worker, you do not have a legal right to do this).

Employees and workers are also protected in these circumstances from being subjected to a detriment (e.g. suspension, deducted pay, or – in the case of a worker – having your contract terminated).

Employment Tribunals have considered several cases on this issue in the context of the COVID-19 pandemic. These concern events in the early stages of the pandemic, when less was known about the virus and vaccines hadn't been developed and approved.

They show the importance for employers of being able to demonstrate that they have implemented appropriate COVID-related health and safety measures. This is now somewhat easier since the government published its sector-specific guidance and the HSE published guidance on making workplaces COVID-secure.

The cases also confirm that the valid exercise of the right to stay away from work is not just a question of you expressing vague anxieties about your working environment:

  • You'll normally be expected to explain clearly why you believe your workplace is dangerous and give your employer the opportunity to explain the steps they have in place to protect you and give them time to consider what else they can do to protect you or deal with your concerns.
  • You must also be willing to take individual precautions to protect yourself and follow all reasonable management instructions put in place to protect you.
  • You must be able to show that the risk is serious and imminent despite anything you and they can do to reduce it.

At-risk staff

Extremely vulnerable staff

Even though the shielding programme has ended, employers requiring such staff to return to the workplace may still be exposing themselves to a health and safety liability risk, as such staff may need more than the usual safety measures to protect them. If the risks cannot be averted or minimised, it may be reasonable for you to claim that there's an ongoing serious and imminent danger if you return to the workplace.

Vulnerable staff or those with other potentially dangerous health conditions

These generally include any staff who are regarded by the NHS as people at higher risk. They're not 'extremely clinically vulnerable', but they may be at greater risk of being infected and/or suffering an adverse outcome if they get infected. This will also usually include those who:

  • are 70 or older (particularly if they are male)
  • are obese or have a high body mass index (40 or above)
  • are pregnant
  • have a disability
  • have diabetes, heart, kidney or liver disease or a lung condition
  • have a condition affecting the brain or nerves
  • have a condition that means they have a high risk of getting infections
  • are taking medicine that can affect the immune system

If the risks cannot be removed or minimised, it may be reasonable for you to claim that there's an ongoing serious and imminent danger if you return to the workplace.

Members of the BAME community

Current medical evidence confirms that Black, Asian, and Minority Ethnic people have a far higher risk of death from COVID-19.

To avoid potential liability under race discrimination laws, your employer needs to ensure that any decisions they make about returning to the workplace are fair and consistent, unless they have a good business reason for different treatment. Note that while taking extra precautions for BAME staff compared to (non-vulnerable) white staff could be viewed as indirect discrimination, it is likely to be justified on the basis of the current medical research.

If the risks cannot be removed or minimised, it may be reasonable for you to claim that there's an ongoing serious and imminent danger if you return to the workplace.

See our sections on race discrimination in England, Wales and Scotland, and Northern Ireland.

Options for at-risk staff

If your employer is allowing or requiring such staff to return to the workplace, they must carry out a risk assessment. The level of risk ought to be acceptable to both parties.

Your employer should also take steps to remove or (at least) minimise the level of risk. Options to reduce it include agreeing to:

  • Give you the safest available on-site roles
  • Adjust your working times (e.g. to avoid rush hour)
  • Remove or limit any higher-risk work activities or duties.

If this isn't possible, or if the risk remains unacceptably high for other reasons, your employer could make some temporary arrangements to give them time to agree or implement additional safety measures.

They should first consider if you can remain working from home. Note that you may want or need to come back to the workplace, but to avoid risking liability, they might ask you to remain there temporarily. If possible, agree a timeframe.

If you cannot work from home, your employer should try and agree to make temporary changes to your workplace activities or duties that will include minimising your contact with other staff. If necessary, they should keep you at a safe distance from clients or customers and other visitors to the workplace. This will vary depending on the industry sector and country you work in, but you generally should be staying 2 metres away from others at most, if not all, times. If needed, they should offer you some protective equipment such as a high-quality face covering.

If you are unable to agree, your employer could consider laying you off for a limited time, if you're an employee and your contract gives them a right to do so. Or you could both agree for you to temporarily do alternative work from home.

Your employer should use this time to find a solution and make and agree longer-term options.

If you have a disability, your employer should comply with their legal responsibilities by obtaining a medical report to find out the risks associated with your medical condition. They should ask for any specific advice from your doctor, such as:

  • which of your duties will increase the risk of you contracting the virus at work;
  • which of your duties should you not be performing; and
  • whether you should return to work at all.

If your doctor has advised you that you should not return to work, you will be entitled to receive statutory sick pay, subject to giving them a fit note. See below under 'Disabilities' for more.

Note that if you want to return but your employer wants you to stay at home, you'll be entitled to full pay if you can work from home.

Disabilities

If you're classed as extremely vulnerable, or have other potentially dangerous health conditions, you could have a disability that's recognised under Equality Law. If you do, your employer is legally obliged to make reasonable adjustments. This can include letting you stay at home. If you can work from home, this shouldn't be an issue. If you can't, whether or not that means doing so on full pay is unclear, unless there's a serious and imminent danger to you returning to the workplace, in which case you must remain on full pay.

It's possible that requiring you to return could amount to indirect discrimination – this can be justified, but be difficult to establish depending on the situation. See our sections on Disability discrimination in England, Wales and Scotland and Northern Ireland.

If your condition isn't recognised as a disability under equality law, your employer doesn't have to make any adjustments like letting you stay at home. But to be certain (and in line with their health and safety obligations), they should consider getting a medical report from your GP.

If medical evidence suggests you're at greater risk, ask your employer to check this against their workplace risk assessment. If you both agree on a return, your employer should take the same precautions stated above.

Financial support is available for staff living in England, Scotland or Wales who have a disability or health condition and are returning to their workplace. There's a different system in Northern Ireland.

Staff living with someone who's at higher risk

This may mean living with someone who's clinically extremely vulnerable, someone who has another potentially dangerous health condition, or someone who is otherwise more susceptible to contracting the virus (e.g. the elderly).

Although shielding has ended and many are now vaccinated, you may still be concerned about their safety, particularly if they cannot be vaccinated for a medical reason or if toy act as their carer, making close contact unavoidable.

If you have a reasonable cause for concern, your employer could choose to explore the same options described above for at-risk staff.

Again, if the person with whom you live may has a disability that's recognised under Equality law –your employer can't treat you less favourably than others based on the disability of someone you're associated with.

Staff suffering from anxiety

Some staff are likely to be anxious about returning amid coronavirus. Depending on the severity, anxiety can be a recognised disability.

If so, your employer is legally obliged to make reasonable adjustments. This can include letting you stay at home. If you can work from home, this shouldn't be an issue. If you can't, whether or not that means doing so on full pay is unclear, unless there's a serious and imminent danger to you returning to the workplace, in which case you must remain on full pay, or you can work from home.

Sick leave should be used if you're experiencing stress/anxiety at levels that mean you can't work, so long as you give your employer a fit note from your doctor.

It's possible that requiring you to return could amount to indirect discrimination – this can be justified, but may be difficult to establish depending on the situation. See our sections on Disability discrimination in England, Wales and Scotland and Northern Ireland.

Financial support is available for staff living in England, Scotland or Wales who have a disability or health condition and are returning to their workplace. There's a different system in Northern Ireland

If the condition isn't recognised as a disability under equality law, your employer doesn't have to make any adjustments like letting you stay at home. But to be certain (and in line with their health and safety obligations), they should consider getting a medical report from your GP.

If medical evidence suggests you're at greater risk, ask your employer to check this against their workplace risk assessment. If you both agree on a return, you employer should consider the same precautions as those described above for at-risk staff.

Staff without childcare

Sometimes, you may find you can't or don't want to let your children return to school.

If this happens, your employer can (if possible) let you work flexibly.

There are other options available only to employees:

  • Unpaid parental leave: after a year of working for your employer, you can take leave of up to 4 weeks for each child per year in blocks of at least one week. Your employer is entitled to at least 21 days' notice, although they can choose to be flexible about both this and the amount of leave.
  • Unpaid dependent care (or emergency) leave: you can take a reasonable amount (usually 1 or 2 days) of time off to take necessary action to look after your child. It's available no matter how long you've worked for your employer.

If none of the above is suitable, your employer can suggest you take unpaid leave or use your holiday allowance. Note that they can lay you off for a limited time if your contract gives them a right to do so.

Note that your employer could be liable for sex discrimination if the majority of childcare duties are performed by the child's mother. Your employer must ensure that decisions are fair and consistent, unless they have a good business reason for different treatment.

See our sections on sex discrimination in England, Wales and Scotland, and Northern Ireland.

Staff who must use public transport

If you have to use public transport to get to work, it's currently unclear if your employer will be responsible for your health and safety while you're doing so. General legal opinion is that it's unlikely.

However, employers owe employees (rather than, for example, workers or contractors) an unwritten duty of trust and confidence. Employers mustn't do anything to break this, which may include forcing you to take a risk and travel by public transport. Potentially, you could resign and claim unfair (constructive) dismissal. However, this is so far untested in court and so not advisable.

Your employer should consider any possible options that might help you avoid public transport, such as:

  • giving you access to bikes;
  • fitting more bike storage points; and
  • making more car parking spaces available.

If there is no other choice but to use public transport, you could ask to alter your hours to avoid busy times. If possible, you could ask your employer to supply protective equipment, e.g. high-spec face coverings and gloves. Remember your employer has to make reasonable adjustments for staff with recognised disabilities, and carry out special risk assessments for those who are pregnant or new mothers – all of these situations require them to take travel into account.

The UK government has published guidance on how to travel safely using various forms of transport. It includes a checklist of how to plan a safe journey.

Exploring options

If you want reassurance or want to explore other safer ways of working, considering the following options:

  • If your employer hasn't already shared it, ask them for a copy of their COVID-19 risk assessment and what action they've taken to make the workplace COVID-safe.
  • Ask for evidence of the safety changes that've been made to the workplace: videos and photos of the changes, or a training session on any new procedures.
  • Ask to speak to a colleague who's already returned.
  • If it's relevant, request temporary flexible working arrangements (such as earlier/later start-finish times).
  • Ask for another safe site you can work at.
  • Ask if there is a safer role than your present one to do in the meantime.

Agreeing changes

If you agree changes to working conditions that affect the usual terms of your contracts, even for a temporary period, you should ask for it to be confirmed in writing.

Staff who don't agree to any changes and still won't agree to returning

If nothing your employer does convinces you to return, they could:

  • ask or require you to use your annual leave;
  • if you're an employee, use short-time working or lay off, if the terms of your contract say they can do this; or otherwise
  • see if you agree to be put on unpaid leave.

If you can't agree, your employer may issue a management instruction for you to return to the workplace. If you continue to refuse, they could start disciplinary action against you (unless you're self-employed), and should warn you that continuous refusals may result in your dismissal.

If all other options fail, redundancy may be the only alternative.

Homeworking

The number of people working from home has soared during the pandemic. Below are some of the issues both you and your employer will need to think about while you're working at home.

Equipment

There is, generally, no legal obligation on your employer to provide you with the equipment necessary for homeworking. Whether or not they do can depend on whether you already have it, such as a PC/laptop and an internet connection.

If you don't, they can provide the equipment to you - and this might be preferable if there are security or legal compliance risks, or if you need specific items to perform your duties.

Note that the law requires your employer to make reasonable adjustments for a disabled homeworker. This means they may need to provide such workers with suitable equipment (or reimburse their cost of obtaining it). On a related point, a fact sheet on the Access to Work scheme gives information on the extra support you can get if you're disabled and need to work from home due to coronavirus.

If you do use your own equipment, ensure that it is properly maintained with the latest software updates so that it doesn't cause security vulnerabilities and compromise your employer's data protection obligations.

Costs

You may incur increased costs because you work from home, such as electricity and heating. But there isn't a legal obligation on your employer to pay or contribute towards this.

If you haven't chosen to work from home voluntarily, you can claim tax relief on your extra costs. This could be paid by your employer as tax-free allowance or you can claim it yourself.

Health and safety

Your employer remains responsible for your health and safety while you're working from home. More information on this is set out above.

Work expenses

There's guidance for employers on How to treat certain expenses and benefits provided to employees during coronavirus.

There's also clarification on Which expenses are taxable for staff working from home due to coronavirus.

Linked to this, the government have https://www.gov.uk/government/publications/extension-to-the-temporary-income-tax-and-national-insurance-contribution-exemption-for-home-office-expenses/extension-to-the-temporary-income-tax-and-national-insurance-contribution-exemption-for-home-office-expenses announced] allowed tax and NIC exemptions for coronavirus-related reimbursed home office expenses, which applied from 11 June 2020 to amounts reimbursed on or after that date but before the end of the 2021-22 tax year (5 April 2022).

If you're forced to self-isolate after returning from holidaying abroad

If you spend any time abroad, government rules mean you may have to self-isolate when you return to the UK.

It's a good idea to tell your employer in advance if you plan to travel abroad, even if at that point there is no requirement to self-isolate after returning. This will help them to plan and to let you know about what'll happen if and when you have to self-isolate – e.g. when you'll need to contact them, what work you might be able to do, whether or not you'll be paid, and if any other arrangements are needed (such as staff cover).

Your employer shouldn't put a blanket ban on staff using annual leave to visit a country that will result in self-isolation upon return, particularly if they have staff who travel abroad to visit close members of their family. Doing so is likely to be unreasonable and will risk discrimination claims.

In some situations, the Test to Release scheme allows people returning to England to reduce their self-isolation period if they pay for a private COVID-19 test and get a negative result. You could discuss making use of this and agree who will pay for it.

Dealing with requests

Your employer shouldn't impose travel rules that treat staff unequally or inconsistently. For example, they shouldn't automatically reject leave requests from staff who can't work from home while automatically approving those from staff who can.

Your employer does have a right to refuse a request to take annual leave, if they know that you will have to self-isolate on your return and they can't accommodate it. Remember that new rules potentially allow up to 4 weeks of annual leave to be carried over into the next 2 holiday years (see below for more on this).

If a requirement to self-isolate is announced after your employer has approved your leave request, it's possible for them to cancel it. Unless your contract says otherwise, they'll need to give you at least as much notice as the amount of leave being taken. It might well be unreasonable for them to do this unless they have a strong business reason, particularly if you've incurred non-refundable holiday costs.

Options for when you return

If you need to self-isolate in this situation then you aren't eligible to receive statutory sick pay, unless during the self-isolation period you become eligible for another reason (e.g. you start showing coronavirus symptoms).

The options are (either alone or in combination):

  • Work from home: if you can't usually do this, your employer should consider whether there is suitable work they can give you. Note that this may mean temporarily giving you different work. They may need to provide equipment. Ideally, you should be able to do the work with minimal training. While this might seem inconvenient, they should particularly consider it if they have other staff who can ordinarily work from home, as it will help them to show that they're being fair and consistent in their procedures.
  • Use annual leave: your employer can ask you to do this. Or, they can require you to do it by giving you the required amount of notice – though since this is double the length of leave that they want you to take (unless your contract says otherwise), it may not be a practical option if return from the destination suddenly requires self-isolation at short notice. Both scenarios require you to have enough annual leave left.
  • Use short-time working or lay off: your employer can only do this if you're an employee and the terms of your contract allow it. Unsurprisingly, if you've been abroad on business then this isn't really a fair option.
  • Take unpaid leave: your employer can do this if you both agree and they can't use short-time working or layoff. Note that if you're an employee, you might be able to make use of your rights to take either unpaid parental leave or unpaid dependent care (or emergency) leave. If you've been abroad on business then unpaid leave isn't really a fair option.

Disciplinary action is possible in some situations, but your employer should take extreme care over this. The requirement to self-isolate is the law, so punishing you for complying with it is unlikely to be fair – unless you have, without good reason, failed to comply with any reasonable requirements that they've put in place. In any case, your employer will need to follow their disciplinary procedure.

The UK government has published a guide for workers and employers.

Annual leave during COVID-19

Carrying over holiday

You're entitled to at least 5.6 weeks of annual leave per year. Ordinarily, only 1.6 weeks of that can be carried over (if your employer allows it). Temporary rules now allow the remaining 4 weeks to be carried over into the next 2 holiday years.

The carry-over right isn't automatic. It only applies where the pandemic has meant that it's not been reasonably practicable to take some, or all, of the 4 weeks in the year to which it relates.

What 'reasonably practicable' means isn't completely clear. However, government guidance lists factors your employer will be expected to take into account. These include (among others):

  • When your employer's holiday year ends: e.g. if it ended during the height of lockdown and there wasn't time to take leave due to increased workload
  • If business demand has risen due to the pandemic and you've had to continue working to cope with it
  • Your role, e.g. if you're a key worker
  • Whether enough staff have been available to provide cover

The guidance doesn't mention travel restrictions or reduced travel options as examples of why taking leave wasn't reasonably possible. This suggests your employer could refuse holiday carry-over where that's the only reason.

However, elsewhere in the guidance (on requiring leave to be taken while furloughed), it says your employer should "consider whether any restrictions the worker is under such as the need to socially distance or self-isolate would prevent the worker from resting, or enjoying leisure time, which is the fundamental purpose of holiday" (as defined in law).

Employers will be expected to:

  • Give you the chance to take any holiday that can't be carried forward, before the end of the holiday year
  • Take reasonable steps to ensure you can take as much holiday as possible in the correct holiday year
  • Let you use carried-forward holiday first.

Your employer can require you to take holiday, as long as they give you proper notice (double the length of leave they want you to take). As mentioned above, this might not satisfy the fundamental purpose of holiday (resting or enjoying leisure time).

The likely safest time for an employer to require holiday to be taken is at a time when all or most of any lockdown restrictions are lifted, and not while you must self-isolate.

Otherwise, you could claim that this isn't true holiday and shouldn't count as part of your annual leave allowance (which could have a financial effect later if, say, you're made redundant). This is untested in law, and there's scope for a lot of legal argument.

Furlough and redundancy payments

If your employer chooses to dismiss you following furlough (e.g. through redundancy), they must calculate certain statutory payments using your normal (pre-furlough) pay and not your (reduced) furlough pay.

This applies to redundancy payments, along with other statutory payments linked to ending an employee's employment (usually a multiple of a week's pay). The payments covered are:

  • Statutory notice pay
  • Statutory redundancy pay
  • Pay for time off you take to look for new employment or arrange training, following notice of dismissal
  • The statutory amount payable if your employer fails to provide you with written reasons for your dismissal
  • Statutory compensation for unfair dismissal
  • The statutory amount payable if you're successful in an unfair dismissal claim and your employer fails to comply with a tribunal or court order to reinstate or re-engage you.

The legislation explains how to calculate the above payments, including if your pay or hours vary. In essence, though, for the calculation of a week's pay, your furloughed hours are treated as if they were normal working hours. The pay related to those furloughed hours is treated as if they'd been worked, ignoring any reduction made because you were furloughed.

Amendments to right-to-work checks

Temporarily, right to work checks can be made:

  • Via video call; or
  • By job applicants and existing workers sending scans or photos of documents via email or a mobile app, rather than sending originals.

Your employer must still make the check and use the Employer Checking Service if you can't provide acceptable documents. The government has also updated its right to work guides.

These temporary measures will end on 5 April 2022 (extended from 31 August 2021). From then, your employer will need to see the originals of your documents (i.e. in person), unless they can use the Employer Checking Service.

Note that there's no need for them to redo any checks that they made using the temporary measures (provided they did so properly).

Temporary changes to criminal record checks

England & Wales

The Disclosure and Barring Service has temporarily changed its guidelines for ID checking and subject access requests.

Also, people in eligible roles will be given free-of-charge DBS checks and/or a fast-track emergency checks.

They have also published factsheets and updated guidelines.

Scotland

Disclosure Scotland has suspended the payment of fees for urgent applications of certain coronavirus response workers, until 25 March 2022. Any urgent applications can be made online.

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