July 4, 2022

Volume XII, Number 185


Living With COVID-19 – Practical Strategies for Managing Your Workforce in the UK

The UK Government announced last week that we are entering a new phase of the pandemic — one where we now learn to live with COVID-19. On 24 February 2022, all domestic COVID-19 regulations restricting public freedoms came to an end. We are now being encouraged to act reasonably and use our discretion. What do these changes mean for employers?

Health and Safety Must Remain a Priority

Health and Safety England’s guidelines on continuing to work safely during COVID-19 remain in place. Some of the more detailed guidance is due to be updated in light of recent government announcements, so keep an eye on any changes to that over the coming weeks. Failure to follow this guidance can lead to serious sanctions for companies and their directors, including fines, imprisonment and disqualification.

Returning to the Office

Employers should now look at what working patterns have been adopted and whether anything needs to change over the coming months. This might mean a phased return to the office, permanent hybrid working or an immediate full-time return to the office. Business needs, market standards and company culture will all influence that approach.

If an employee is denied the hybrid working arrangement they are looking for through informal channels then, provided they have more than six months of service, they can submit a more formal flexible working request. Requests should be considered in accordance with the Advisory, Conciliation and Arbitration Service (ACAS) guidance and can be accepted or rejected, based on eligibility grounds or for one of eight prescribed statutory reasons.

Implement COVID-19 Policies

Staff are no longer legally obliged to self-isolate if they have symptoms and access to free tests will soon come to an end. Without the right policies, this could make for a perfect storm when managing sickness-related absence and office attendance. Here are some factors that employers should consider when formulating those policies:

1. Symptoms

We know that COVID-19 symptoms are broadly the same as the common cold, or a winter 'bug', or a late night with some raucous shouting. Employers need to be clear that they expect employees to have the wisdom to know the difference. That's a balance for employers to determine, whether they want slightly sick employees coming into the office at all to spread germs, versus giving a green light to those who are more likely to be persistent absentees needing management in accordance with usual procedures.

2. Testing

From 1 April 2022, access to free COVID-19 tests will come to an end. Employers need to decide whether employees will be either expected to self-fund tests or be supplied with them by the business, if requested.

3. Failure to comply with a reasonable request

There then remains those employees who either refuse to take a test, or refuse to provide evidence that they have tested positive. If they refuse to take a test but are absent — without reasonable excuse — because they're symptomatic, it’s potentially a disciplinary matter with the consequences that could follow.

If employees neglect to send evidence of a positive test then it's the same as failing to provide a Fit for Work certificate. While employees can self-certify a week's absence in order to maintain their qualification for statutory sick pay, consider withholding company sick pay pending the provision of a genuine picture of a positive test result.

In order to implement COVID-19 policies, employers might consult with employees or simply tell them about changes, and the employer might introduce consequences for failing to comply. By thinking about those consequences from the outset, employers will be able to implement effective strategies that both reflect their culture and achieve their objectives.

©2022 Katten Muchin Rosenman LLPNational Law Review, Volume XII, Number 69

About this Author

Christopher Hitchins, Katten Muchin London UK, investment documentation attorney, labor disputes management lawyer

Christopher Hitchins focuses his practice on the full range of employment law issues, acting for employers or senior individuals in a wide range of sectors, with a particular focus on the financial services, technology, hotel, retail and media industries.

Chris advises on all contentious and non-contentious UK employment law matters. He has significant experience advising on senior executive employment, partnership and investment documentation, managing disputes and exits as well as team moves, advising businesses on restructurings involving the...

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Bridgitte Weaver, Katten Law Firm, London, Labor and Employment Litigation Attorney

Brigitte is an employment lawyer who focuses on a broad range of contentious and non-contentious employment matters, acting for both employers and individuals. Brigitte’s contentious experience covers both Employment Tribunal claims and High Court litigation, including unfair dismissal, discrimination claims and breach of contract. Her non-contentious experience covers a variety of advisory matters, as well as corporate support work and advising on TUPE.

Emma Williams Associate London Katten

Emma Williams assists clients operating in a range of industries, including social media, financial services, luxury goods and hospitality. She frequently explores issues relating to employment, compliance, regulation, sales and acquisitions, data privacy and litigation.

Emma is part of a global practice that helps clients to both manage the day-to-day and look to the future. She handles a full range of employment law and compliance issues, from handbooks and team moves to tribunal litigation. She also deals with developing regulatory schemes in...

+44 (0) 20 7776 7657