Autumn 2021 Employment Law update: Part 1 - Focus on COVID-19 related developments

12 minute read
18 October 2021


Here, Gowling WLG's Employment, Labour & Equalities team brings you a quick round-up of the recent need-to-know employment law developments.

In Part 1 we begin with a review of the latest COVID-19 related developments:

  1. Returning to the workplace
  2. Furlough and redundancies
  3. Health and safety
  4. Compulsory vaccination for care home workers
  5. Right to work checks

In Part 2, we focus on the latest developments on family-friendly & equalities, in Part 3, issues relating to unfair dismissal claims, and finally in Part 4, we move on to trade unions, enhanced redundancy terms, employment status and the National Minimum Wage.

1. Returning to the workplace

With the end of the vast majority of COVID-19 restrictions, businesses and their employees have been returning to the office. For many, a return to the workplace is a return to an evolving new normal rather than to the pre-pandemic norm. While some employers are eager for a full return to the workplace, albeit with appropriate safety measures, others are embracing some aspects of homeworking with the new catchphrase being "hybrid-working", with employees' time split between the workplace and home. A recent CIPD survey found that 22% of organisations had altered terms and conditions between March 2020 and July 2021, with the most common changes being to location of work (49%) and hours of work (47%).

Employers are facing an array of challenges to ensure safety in the workplace as well as business continuity. See our Return to the Office podcast series which discusses the key issues employers need to address to ensure a smooth transition to a "new normal".

Since 28 September 2020, workers who have been told to self-isolate by NHS Test and Trace and are due to work somewhere other than their place of self-isolation have a legal duty to inform their employer as soon as possible before attending work. Correspondingly, employers have a legal duty to not knowingly allow them to work other than at the designated place of isolation, during the period of isolation (The Health Protection (Coronavirus, Restrictions) (Self-Isolation) (England) Regulations 2020). The Self-isolation Regulations were due to expire on 28 September 2021, but have now been extended until 24 March 2022.

Since 16 August 2021, individuals informed by NHS Test and Trace that they are a contact of someone who has tested positive will not need to self-isolate where they are:

  • Fully vaccinated;
  • Below the age of 18 and six months;
  • Have taken part in, or are currently taking part in, an approved COVID-19 vaccine trial; and/or
  • Not able to be vaccinated for medical reasons.

Workers who are now exempt from the self-isolation requirement do not need to inform their employer when they have been advised that they are a contact of a positive case. Nor will workers who have been "pinged" (received a notification from the NHS COVID-19 app), as they have never been subject to the legal requirement to notify in any event. Of course those who have themselves tested positive will still need to self-isolate.

Employers should ensure they continue to be aware of the evolving self-isolation requirements needed to ensure compliance with their legal obligations now extended to 24 March 2022.

2. Furlough and redundancies

The Coronavirus Job Retention Scheme (CJRS) closed on 30 September 2021. The hope is that employees will be able to return to work and remain in employment. However, if this is not possible because an employer's business continues to be severely affected by the impact of COVID-19, the employer will need to consider making redundancies - find out more about this in our insight, Redundancy: The new normal?

For employers who have already undertaken a redundancy programme while the CJRS was in operation, a number of tribunal judgments have been addressing the question of "should furlough / extended furlough have been considered as an alternative for the dismissals to be have been fair?"

Employment tribunal judgments are non-binding on other employment tribunals and as ever, each case will depend on its own particular facts. However, from the judgments that have been reported to date the trends appear to be:

  • If an employer simply hadn't considered furloughing staff as an alternative to redundancy, a tribunal could decide that their dismissals are unfair, BUT
  • The decision as to whether to place or keep someone furloughed was a matter for the employer. Provided the decision to not furlough or not considering furlough as a suitable option in a particular case is within the range of reasonable responses, a decision to dismiss for reason of redundancy should not necessarily be unfair. If defending a claim, an employer should set out why it rejected furlough at the time or should not be criticised for not considering it (e.g. a public sector employer not eligible for furlough funding).

Furlough is not cost-neutral. Furloughed staff continued to accrue holiday and service. Delaying redundancies could therefore have increased costs. Also the tapering provisions in place at various times meant that employers would be responsible for paying employer National Insurance Contributions (NICs) and pension contributions (August 2020 & November 2020 onwards) and a portion of the wages for some months (September & October 2020 and July to September 2021).

As ever, having a paper trail of the decision making process will assist in showing that the employer acted within the range of reasonable responses when responding to an unfair dismissal claim.

3. Health and safety

Sections 44 and 100 of the Employment Rights Act 1996 provide employees with protection from detriment and dismissal for exercising their rights to leave the workplace and take steps to protect themselves or others where they reasonably believe there is serious and imminent danger.

The protection against detrimental treatment under section 44 was extended to cover the wider category of "workers" from 31 May 2021. If the detriment occurred before 31 May 2021, and is not part of a series that continued on or after 31 May 2021, a worker will not be able to rely on the amended section 44 to bring a detriment claim. In Part 3: Focus on unfair dismissal, we will be looking at section 100 claims which, of course, only apply in the case of "employees".

4. Compulsory vaccination for care home workers

From 11 November 2021, it will be unlawful for adult care home employers to continue to employ staff/take on new staff to work in adult care homes who have not had both vaccinations, unless they fall within one of the narrow exceptions. The narrow medical exemption has caused some controversy. The Department of Health and Social Care Operational Guidance (at the time of writing) is simply that the "range of circumstances in which an exemption may be granted, which will reflect the Green Book on Immunisation against infectious disease, chapter 14a and clinical advice from the Joint Committee of Vaccination and Immunisation (JCVI)" and that a process for medical exemption certification is being developed. As 11 November is fast approaching, on 15 September 2021, in a letter from the Director of Adult Social Care Delivery, a temporary self-certification process is now in place that will expire 12 weeks after the NHS COVID-19 Pass system is launched. The self-certification includes a previously unmentioned time-limited exemption for pregnant women and means that staff can self-certify that they fall within one of the medical exemptions without having to give employers details of their condition.

On 9 September 2021, judicial review proceedings were issued challenging the mandatory vaccination requirement. The challenge is reported to have been brought on grounds, including that the regulations are:

  • incompatible with laws prohibiting the enforcement of mandatory vaccines;
  • interfere with the public's right to "bodily integrity" and are disproportionate;
  • will disproportionately impact women and the BAME community;
  • incompatible with the European Convention on Human Rights; and
  • are irrational and will lead to shortages in both frontline and non-frontline care workers.

One to watch.

5. Right to work checks

It is unlawful to employ someone who does not have the right to reside and the appropriate right to work in the UK, or who is working in breach of their conditions of stay. To comply with their obligation to prevent illegal working, an employer must: carry out "right to work" checks on all prospective employees before the employment starts and conduct follow up checks in some cases.

Since 30 March 2020, an adjusted process has allowed right to work checks to be carried out over video calls and for job applicants and existing workers to send scanned documents or a photo of their documents to employers via email or a mobile app, rather than sending the originals.

After initially announcing that the COVID-19 adjusted right to work check process will only remain in place until 16 May, and later until 20 June and then to 31 August 2021,the Home Office has now extended the adjusted scheme until 5 April 2022.

From 6 April 2022, employers will once again be required to check individuals' original documents, rather than scans or photographs of the originals, or use the Home Office's online right to work check tool (where applicable). Checks must be performed in the physical presence of the individual or via a live video link, while the original documents are in the possession of the employer (individuals are, understandably, often nervous about sending original documents of this nature to enable checks via video link) or the documents accessed via the Home Office's right to work tool.

Although employers will need to undertake fully compliant right to work checks from 6 April 2022, they will not have to carry out retrospective checks where the adjusted process has been used when in force.

The Home Office's right to work online tool can currently be used if the individual has a Biometric Residence Permit, Biometric Residence Card or status under the EU Settlement Scheme. The Home Office has stated that it intends to use the period up to 5 April 2022 to look to create a new digital right to work check solution to include many who are currently unable to use the Home Office online checking service, including UK and Irish citizens. This will enable checks to continue to be conducted remotely without many more individuals having to send in original documents to the employer.

Separately, a revised Home Office "Code of practice on preventing illegal working: Civil penalty scheme for employers" came into force on 1 July 2021. The Code significantly amends the lists of acceptable Right to Work documents to reflect the post-Brexit position. Employers should ensure their internal procedures for Right to Work checks are updated accordingly.

If you have any questions about this article, or about employment law in general, please contact Connie Cliff.

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