The Covid pandemic saw the onset of new challenges, new ways of working and new laws. The past 18 months brought unprecedented employment issues, which HR teams across the UK have been manically trying to keep up and comply with. We had started to see light at the end of the tunnel, however with the phasing in of the Government’s Plan B from 10 December 2021 some restrictions that we had previously said goodbye to have started to come back.
New variant aside, we reflect on the key takeaways of working through the pandemic and look hopefully to what may come next.
Where we are now
Arguably, the main HR headache of the pandemic was the introduction of the furlough scheme. Although it provided great benefit to businesses and employees alike, the scramble to get employee agreement, update policies and procedures, calculate payroll and track the various government changes has been a full-time job on its own. As such, many were pleased to hear that the Job Retention Scheme closed on 30 September 2021, with no plans for future reintroduction.
At certain times during the pandemic, the Government sent letters to some people who they classed as clinically extremely vulnerable advising them to stay at home and be extra careful about who they came into contact with, to protect themselves from Covid-19. This was called “shielding” and it meant that those people could not go out to work. However, the shielding programme has now ended. Despite this, organisations must still remember their legal obligation to support those with underlying health conditions, in line with normal welfare and absence management processes. Failure to do so can risk claims of disability discrimination, unfair dismissal and/or constructive dismissal.
The Government recently confirmed that Covid vaccination is a mandatory job requirement for any staff working inside a CQC-regulated care home in England and anyone deployed to undertake a CQC-regulated activity both in public sectors (NHS) and independent sectors in England, who has direct face-to-face contact with service users, unless they have an exemption. This includes both clinical staff and ancillary roles, including receptionists, porters and cleaners. Initially, care home workers must have provided evidence of vaccination or exemption by 11 November 2021 to continue working in their role. Where a self-certification form for temporary exemption was given, workers must provide evidence of permanent medical exemption by 24 December 2021. This has now been updated, and the deadline for temporary self-certificated exemption moved to 24 December 2021, and a new deadline of 31 March 2022 for final clinical proof of temporary or permanent exemption. The regulation for wider health and social care staff is set to come into force in April 2022.
Following the introduction of these regulations, no jab-no job policies have becoming increasingly common for organisations outside the scope of mandatory requirements. But, there are several factors employers must consider if they want to make vaccination a contractual job requirement. First, they need to show that it is a reasonable instruction in all situations. Where they may be a risk of discrimination claims (eg because an employee refuses vaccination due to pregnancy or religious belief), employers must also be able to objectively justify that the implementation of such a rule is a proportionate means of achieving a legitimate aim. Essentially, this means that it is a reasonable way of reaching a reasonable goal.
Organisations must remember that the introduction of a contractual vaccine clause will be a change to employees’ existing terms and conditions, so agreement from their workforce is needed. This can be done by consulting with employees, to explain the proposed changes, the reasons for them and the time-frames for implementation. Employees should be given the opportunity to ask questions and raise concerns throughout this process. Where the changes will affect 20 or more individuals, collective consultation rules may apply.
Once a full consultation process has been completed, and adjustments have been made for those with reasonable grounds for refusing vaccination, action can be taken against those who cannot provide the necessary evidence. Employers should always first evaluate whether there are any alternative roles the person can be redeployed to. If there are none, employers may be able to move forwards with a dismissal under Some Other Substantial Reason (SOSR). It’s important that employers keep a detailed record of all discussions and documentation utilised throughout the process, as this may later be used as evidence should claims arise.
What we need to remember
Several Covid-related claims have worked their way through the tribunal system in recent months. These highlight the practices employers should be adhering to and the difficulties they may face if they don’t:
In Khatun v Winn Solicitors Ltd, Winn required employees, with five days’ notice, to sign a contract variation agreement to place them on furlough or reduce their hours and salary by 70%. Ms Khatun refused this, which led to her dismissal without appeal. In evaluation of an unfair dismissal claim, the employment tribunal understood Winn’s sound business reasons for making the changes but confirmed they’d gone about enforcing them in entirely the wrong way. They criticised Winn’s lack of meaningful consultation, disregard for existing terms, failure to explore alternative options and absence of appeal. Given these procedural flaws, the tribunal was quick to uphold Khatun’s unfair dismissal claim.
In Prosser v Community Gateway Association Ltd, Prosser informed her employer that she was pregnant shortly before the first lockdown. After the release of the Government’s announcement that pregnant employees should shield, she was not given any shifts and didn’t return to work for five months. Prosser claimed that the lack of shifts, and subsequent loss of pay, amounted to direct pregnancy discrimination. However, the employment tribunal rejected this, confirming that her being sent home due to being classed as vulnerable was not unfavourable treatment as her employer was operating in line with government guidance and fully consulted with her throughout.
Finally, in Gibson v Lothian Leisure, chef Gibson was furloughed during the first lockdown. When restrictions lifted, he was asked to help with the re-opening of the restaurant. Gibson highlighted his concerns over the lack of safe working measures, particularly PPE. The restaurant proceeded to dismiss him with immediate effect, leading him to raise claims for unfair dismissal. The employment tribunal agreed, stating that circumstances which Gibson reasonably believed to be serious and imminent, he should not have been dismissed for. The tribunal ordered Lothian Leisure to provide compensation of £23,625.
Since this article was first written, the Government has announced a return of some Covid-19 restrictions in the UK due to the emergence of a new variant, Omicron, under its “Plan B”.
The red list has returned meaning that arrivals into the UK from certain countries must quarantine, and other travel rules have been updated.
Anyone notified of contact with someone suspected of having the Omicron variant must isolate for 10 days regardless of vaccination status.
From Friday 10 December, masks must be worn in most public venues, including theatres and cinemas, unless someone is medically exempt (this will not apply in premises where people are eating or exercising).
From Monday 13 December, guidance to work from home wherever this is possible will be reintroduced.
By Wednesday 15 December, Covid passes will become mandatory for nightclubs, unseated indoor venues with more than 500 people, unseated outdoor venues with more than 5000 people and any venue with more than 10,000 people. Two doses will be sufficient for a Covid pass, as will a negative lateral flow test but this requirement will be kept under review as the booster programme is rolled out.