September 19, 2021

Volume XI, Number 262

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September 16, 2021

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UK: A brave new world for employers? – living with Covid after Freedom Day

So there it is.  Subject to a final review next week, said the Prime Minister last night, it will no longer be necessary for the government to instruct people to work from home.  From 19 July, all businesses can re-open, no‑one has to wear a mask or stay more than a metre from others and you can go to a nightclub if you really feel you must.

Whether any of this is a good idea from the medical perspective remains unclear – the Delta variant is finding over 25,000 new victims a day in the UK, and many people fear a renewed lockdown in the winter.  The government has previously claimed that “Freedom Day” would be irreversible.  From the practical perspective, that is probably right, but Boris was ultimately careful to keep his powder dry on that: “we will monitor the data and do everything possible to avoid re-imposing restrictions“. From the political angle, however, the government has little or no choice.  Being brutal about this, its primary concern is not around numbers of people contracting Covid, but how many hospitalisations because the NHS needs to get on with its other priorities, and how many deaths because they make bad press.  Instead of defeating Covid, therefore, we must learn to live with it, say Ministers, and that is as true for employers as for individuals.

For employers, Boris’s announcement and the impending Freedom Day will change both more and less than you might think:

  • Freedom Day does not alter your basic obligations as employer under the Health & Safety at Work Act to take all reasonably practicable steps to reduce risks to the health and safety of employees, visitors and the public to its lowest reasonably practicable level (nor the HSWA duty on employees to comply with measures reasonably required by their employer for that purpose).  Therefore, the announcement absolutely does not mean an end to detailed workplace precautions around testing, masks, hygiene, social-distancing, screens, etc.  Those remain matters for employers to decide (and to be judged upon) on their own facts, not the government.

  • It does not alter the basic rights of an employee to stay away from the workplace if he reasonably believes that it poses a serious and imminent health and safety risk to him which he cannot be expected to avert.  What it does do is alter the background music to such a claim – it is much easier to allege such a belief in the risks of the workplace if your own government is telling you not to go there, and so correspondingly harder when it isn’t.

  • The announcement will not alter, indeed may heighten, the anxieties and other mental health states which may have built up in your employees over the lockdown, nor will it alter your obligation as employer to take the return process relatively gently and make particular accommodation so far as you can for those concerned.

  • BUT what it does do is change the game very significantly in relation to the contractual status of WFH.  A homeworking arrangement forced on the employer by lockdown will not become contractual through custom and practice because neither party has any choice about it.  The practice exists because the law has required it and not because the employer has chosen voluntarily to turn a blind eye to people not turning up at their normal place of work.  Once the official WFH edict is rescinded, however, that compulsion no longer exists.  By contract, the employee’s normal workplace reverts to the office, and so if the employer does not then take steps to enforce that, then it is indeed turning that blind eye.  Therefore the onus will be squarely upon the employer in a way it has not been since March 2020 – if you do not like a particular employee working from home or the way in which or days or hours for which he has been doing so, you now need to say so, ideally quite promptly and certainly in writing.

  • Which takes us to the almost inevitable employee response – some sort of flexible working application aimed at continuing and formalising at least some of the WFH which he has enjoyed.  That sounds like bringing a burden upon yourself, but in fact can be a Jolly Good Thing.  The proper conduct of a flexible working application is an opportunity for both parties to re-base their WFH position in the light of the last 16 months’ experience, good or bad.  It obliges sceptical line managers to nail their colours to particular reasons why what the employee wants has or hasn’t worked, and so to make a better quality of decision around full or hybrid homeworking.  To be clear, however, Freedom Day has absolutely no impact on whether any given flexible working application should be granted – by law, that is a function purely of whether there is a good business reason for its not being granted and is unrelated to government advice on WFH.

  • There may be no legal restrictions after 19 July, but there will apparently be “strengthened guidance…  allowing people to make their own informed decisions“.  You can’t help having a bad feeling about this.  Either something is a legal requirement or it is not, and guidance, however “strong”, just isn’t.  We do not know what “strengthened” means in this context – more detailed and useful but still ignorable, or merely increasingly strident in tone and a bit blurry on the old should/must distinction?  Leaving a key public health measure like masks on public transport to people’s better nature and sense of “courtesy” (because masks protect others more than the wearer) seems doomed to fail.

  • This will of course compound the angst which many will feel about a resumption of normal commuting, and hence their resistance to a (full time) return.  A number of this morning’s papers carry comment on the risk of workplace tensions between those who believe that masks should be worn and those who will now refuse to do so.  As above, that is a question to be determined by the employer.  If it considers that requiring staff to wear a mask in certain roles or in certain parts of its building will help reduce infections to their lowest reasonably practicable level, then nothing in what Boris said yesterday prevents it from doing so.

© Copyright 2021 Squire Patton Boggs (US) LLPNational Law Review, Volume XI, Number 187
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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...

+44 20 7655 1132
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