March 7, 2021

Volume XI, Number 66

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March 05, 2021

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March 04, 2021

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Little scope for UK employers to get lost on recovery roadmap

So there it is, Boris’s long-heralded 4 Step plan for the country to move forward into our new future.  Lots of statistics, cautions and caveats, but what does the 60-page “COVID-19 Response – Spring 2021” document presented to Parliament yesterday contain for employers?  Is there anything new or is it, like the paper the original was printed on, 75% recycled?

Among many pages of retrospective self-justification on the part of the Government (though no obvious references to the spending of £squillions on non-compliant PPE or unlawful procurement practices), we can find these points for employers to think about:

  • The vaccination programme should have caught all the over 50s and those at most clinical risk by mid-April, and everyone over 18 by the end of July.  The Government repeats that it will not make vaccination mandatory, but it does say that “high vaccine uptake is crucial in enabling restrictions to be lifted safely; every person who gets the vaccine will help reduce the impact of the virus on themselves and society.  Everyone who is eligible…should be make all efforts to get vaccinated“. To the extent that employers may be considering some variation on a “no jab – no job” policy, the Government is clearly supportive of the ideal, though fights shy of adding any actual legal heft to it.  Interestingly, there is a reference late on in the Response to the possibility of some form of COVID status certification which could be used “to confirm in different settings that people have a lower risk of transmitting COVID-19 to others“.  A review of some possible certification system will assess to what extent certification would be effective in reducing risk and reopening the economy.  It says also that it will consider the ethical, equalities, privacy, legal and operational aspects of such an approach (these obviously being similar to those affecting the vaccination process itself) and will set out its conclusions in advance of Step 4, i.e. no earlier than 21 June.

  • In a sharp departure from its previous regional approach, the restrictions will be eased across the whole of England at the same time.  The guidance appears to concede that this is driven as much by mental health, economic and social factors as on medical grounds. The word “electoral” seems to have been omitted, no doubt inadvertently.

  • Each Step in the relaxation will depend on the satisfaction of four prior conditions – the vaccination programme continuing successfully in terms of both (i) numbers and (ii) medical efficacy, (iii) no risk of a surge in hospitalisations and (iv) no emergence of any “Variant of Concern”, which is like an ordinary variant of concern, but more important.

  • The Government is resigned to the fact that despite the vaccination programme, “some degree of risk will always remain“.  On that basis it notes that it will be “increasingly important for people to consider the risks for themselves, taking into account whether they and those they meet have been vaccinated or have pre-existing vulnerabilities“.  This is clearly the beginnings of shifting back to employees responsibility for the decision as to whether to return to the workplace or not.

  • “Maintaining good habits which minimise transmission will be important for both individuals and businesses” and “the Government will continue to enforce restrictions and require businesses to demonstrate robust strategies for managing the risk of transmission and to ensure social distancing rules are followed“, so no relaxing the workplace precautions you have taken thus far.  The COVID-secure guidelines for the operation of physical premises will be updated “to provide further advice on how businesses can improve fresh air flow in indoor workplaces“.  The Response already contains an infographic showing air flow through a slightly  open window, so this further advice will presumably include opening it a bit more.

  • The Government will “carefully tailor the level of support to individuals and businesses to reflect the change in circumstances” (all eyes will now be on the 3 March Budget to see how bespoke that tailoring really is).

  • The advice to “work from home if you can” continues to apply over Steps 1-3 of the roadmap, so until 21 June at the earliest.  Shortly prior to that the Government will complete a review of social distancing measures which will help inform the guidance on WFH, but “people should continue to work from home where they can until this review is complete“.

  • Things are not looking promising on the holiday front either.  No travelling even for domestic staycations until Step 2 (12 April at the earliest), and no going aboard for fun until Step 3 (not before 17 May), but even then, subject to review.  Those travel restrictions are likely to generate still further accruals of untaken holiday.  To the extent that things are still quiet, employers may wish to use their powers under the Working Time Regulations to compel the taking now of at least the accrual from 2020. And on the upside, desperate news in the scotch-egg world with the withdrawal of the requirement that alcohol must be accompanied by a “substantial meal”.

  • Overall, in other words, nothing very new bar a heavily-caveated date (21 June) when the WFH advice may be rescinded.  Hooray, but do keep in mind that in one sense that is merely the start of a whole raft of issues for employers around the physical and mental health aspects of the return to the office, real and imaginary safety concerns and related whistleblowing, unwinding stale flexible working arrangements and working out how to heat an office in which all the windows are open. To paraphrase Boris’ idol Winston Churchill after the tide of war turned at El Alamein in 1942, this is not the end nor even the beginning of the end, but it may at least be the end of the beginning.

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© Copyright 2020 Squire Patton Boggs (US) LLPNational Law Review, Volume XI, Number 54
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About this Author

David Whincup Employment Attorney Squire Patton Boggs Law Firm
Partner

Following 10 years at a Magic Circle firm, David has been head of our London Labor & Employment Practice since 1994.

His expertise gained from over 30 years as a specialist employment law practitioner cover a wide variety of employment-related issues, including individual and team recruitment issues, policy and contract drafting, disciplinary and grievance procedures, individual and collective redundancies, the defence of employee discrimination and dismissal claims and other litigation, whistleblowing, employee health, data protection and matters surrounding confidentiality and...

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