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Employer’s duty of care with all restrictions finally set to be scrapped

Published 15 February 2022

The mooted plan to lift all Covid restrictions in England by the end of the month will inevitably create challenges for employers.

 

The surprise announcement from Prime Minister Boris Johnson appears to signal the long-awaited end of all restrictions  [1 CITED 15.2.22]

 

The strategy for ‘living with Covid’ is set to be announced in Parliament on 21 February.

But it is a move that has been criticised as too much too soon and one that will cause problems and confusion for employers.

Leading expert Tim Spector, a professor of epidemiology at King’s College London, is reported as saying: “It’s a really weird time to tell the public that it’s all over. You know, we’ve beaten it when this is causing a huge effect on sickness, on work problems” [2 CITED 15.2.22]

Unison, Britain’s largest trade union, said putting a match to sensible safety measures, without providing guidance to employers, is reckless and will cause confusion and alarm.

It added people will take the virus into work ​and ‘…it will be a nightmare for employers struggling ​to protect staff ​from a potential super spreader free-for-all.’

Employers have a duty of care to protect the health and safety of their staff [3 CITED 15.2.22] It has grown, and been emphasised, as a result of the pandemic.

Measures implemented to protect employees saw workplaces made Covid-secure and millions working from home, which they may now be reluctant to give up even if all restrictions are scrapped.

A YouGov survey in 2020 found that fewer than four in ten employees working from home wanted to return to the workplace after the pandemic [4 CITED 15.2.22]

Despite what seems the imminent lifting of all restrictions, employers simply cannot force all staff to return to the office. Businesses will need to handle the situation with great care.

Getting those wishing to work from home to return to the workplace and work as they did pre-Covid, should not just be a case of ordering them to come back or else.

Discussion, listening and fair consideration are key if an employee wishes to continue working from home.

It is essential to fully understand the reasons why, and to reasonably evaluate what impact it may have on colleagues and the efficient running of the business.

By law, an individual has the right to make a flexible working request, which can include working from home, if they have been an employee for at least 26 weeks and not made any other flexible working request in the previous 12 months [5 CITED 15.2.22]

Any such request should be considered fairly, following the ACAS Code of Practice on flexible working requests [6 CITED 15.2.22]

At the time of writing there have been 159,518 Covid-related deaths in the UK [7 CITED.15.2.22]

We have been told repeatedly we will have to learn to live with Covid because it is not going away

But if an employer fails to do all that is reasonable to protect staff from the virus while at work, there could be serious consequences.

An outbreak in the workplace could cause serious illness and even death, which opens the prospect of legal proceedings being taken against a business.

To avoid such action employers should carefully prepare for employees to return to the workplace when all restrictions are eventually lifted.

Rather than simply scrapping all measures currently in place, companies should adhere to  government guidance specific to their business type, carry out Covid risk assessments and implement necessary safety measures.

And key in all of this is the employees themselves, especially those who may be considered clinically vulnerable. Workers should be involved in discussions and made fully aware of any measures in place to protect them.

Employees who may reasonably consider the workplace to be unsafe and fear it poses a serious and real threat to their health and safety, are protected by law if they refuse to return.

The employee should not simply be punished for refusing to return to the workplace, as they could make an unfair dismissal or a detriment claim.

In the last two years employers have had to be extremely flexible and adapt to deal with Covid.  They will still need to do so, even if the government indicates very soon that it believes the pandemic is over.

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