Yesterday, the Prime Minister announced that the vast majority of COVID-19 laws, implemented to protect the public during the pandemic, will probably end on Monday 19 July in England (a formal decision won't be made until Monday 12 July). From then on people will be expected to take personal responsibility for their actions and will be asked to follow guidance rather than legal rules.
The context for this couldn't be more surprising. The PM said that a 'third wave' was likely. The Delta variant is surging and, by 19 July, there’s likely to be around 50,000 new infections per day doubling every nine days. Vaccines have weakened the link but haven’t broken it. And, adults need to have both vaccinations against this variant to fully protect themselves against serious disease or death.
Where does this leave employers in England?
Despite the rapid increase in the numbers of confirmed cases, social distancing rules (2 metres or 1 metre with additional mitigations) will be lifted (with a few exceptions). In theory, this means that employers won't have to limit the numbers of people in their workplaces as there will be no legal restrictions on the numbers of people who can gather both inside and outside. But, you are still under a duty to do all that you reasonably can to set up a system of safe work and then to ensure that it is implemented. You'll need to examine the risks - which in customer facing roles - may actually increase and take steps to reduce these to the lowest level you reasonably can.
The government has published a series of guidance notes on working safely during coronavirus - which set out the steps, each sector should take, to make their workplaces as safe as possible. These include social distancing, screens, allowing air to circulate and having one way systems around buildings etc. The government hasn't updated these since 22 June. And, we don't know yet whether it will continue to recommend that employers follow the vast majority of the existing recommendations or, if it will leave it up to employers to decide.
Even if the government retains these guidelines - and you follow them - it doesn't mean that a particular workplace or a particular journey to work for a particular employee, is safe. Nor does it mean that the particular risks have been reduced to the minimum that is reasonably practicable.
If the guidance is shelved (which is unlikely), your risk assessments should determine what steps you need to take to protect your staff. You may, therefore, decide to retain all of your existing protections including restricting how many staff, customers or clients you allow in the same space at the same time.
You may also need to consider how your staff are going to get into work. As more people return to their offices trains and buses will get busier. And, once people no longer have to wear masks on public transport (or elsewhere) the risks of catching the infection will increase. Even for fully vaccinated people, the risks of dying depends on age and halves for each six to seven year age gap. For example, someone aged 80 who is fully vaccinated essentially takes on the risk of an unvaccinated person of around 50.
No-one will be legally required to wear a face covering. Instead, the government will encourage people to wear one when they come into contact with people they don’t normally meet in enclosed and crowded spaces.
This presents a dilemma for employers - particularly for those in public facing roles such as shops, restaurants and bars. Do you continue to ask your staff to wear masks even if your customers aren't wearing them? The latest scientific thinking on face coverings suggests that unless you are wearing a medical grade mask, wearing one protects other people from contracting the virus from you. But, you can still catch it from other people who have the virus but aren't wearing a mask.
You'll need to factor these sort of issues into your risk assessments.
Working from home
The advice to work from home if you can will end. However, that doesn't mean that you should immediately ask everyone to return to office on Monday 19 July. Many employers have been having conversations with their staff about how they want their workplaces to operate once restrictions are lifted and will use these to inform their decision making. There's a real appetite to embrace some form of agile or hybrid working where staff work from home part of the week and at their usual office location for the remainder.
We've set out 12 things you need to consider if you're thinking of adopting agile or hybrid working. We've also produced an agile working toolkit which includes a checklist, policy, contractual clauses, answers to FAQs on this topic.
Flexible working requests
Even if you decide that you'd prefer most of your staff to return to their workplace, not everyone will want to do so. You may see an increase in the number of flexible working applications you receive from staff wanting to work from home permanently or seeking a hybrid arrangement.
Although the Covid pandemic has not changed the law as it relates to flexible working, the context is different. If your staff have been working from home for the last year or so, you’ll find it much more difficult to turn down requests to make the arrangements permanent unless you can point to tangible evidence of things going wrong or a decline in their performance which can’t be explained by short term pressures (such as having to home school kids as well as work).
If you are not sure that the arrangement will work in the longer term once the majority of your staff return to the office, you can agree to a trial period. Make sure the employee understands when and how you will judge whether the arrangement is satisfactory and that you may ask them to return to work if things don’t go as well as anticipated.
You must deal with any requests (including the appeal process) within three months. It you don’t adhere to this timetable, a tribunal can order you to pay up to eight weeks’ pay compensation even if the delay didn’t affect the outcome.
Changes to the rules around self isolation
The new health secretary, Sajid Javid has told parliament that from 16 August fully vaccinated people will no longer have to isolate after being in contact with an infected person. Instead, they'll have to take a PCR test (rather than a lateral flow test) as soon as possible. If that's positive, they will have to isolate - whether they have been vaccinated or not.
This is likely to mean that fewer people need to self isolate.
There is also likely to be less disruption for working parents. From 19 July, children won't be sent home and told to self isolate because someone in their bubble has tested positive. Parents will instead get advice about whether their child needs to be tested.
The government will retain the traffic light system in respect of overseas travel but will work with the travel industry to remove the need for people who are double vaccinated to self-isolate when they return from an amber list country. This should mean that more staff will be able to physically return to work after a holiday abroad.
Our Coronavirus updates
We're working hard to keep you up to date with legal developments around Coronavirus. We've set up a portal which includes lots of helpful articles and advice to help you.
Mike Cherry, national chairman of the Federation Of Small Businesses, added: "Any celebrations will be on hold until we know what new operating rules will look like - we urgently need clarity.
"What do I say to staff worried about the safety of public transport? Where do I stand if I lift all restrictions at my business and someone contracts COVID-19 on site? Do I tell staff the office is safe to reopen?
"How will the rules around schooling and childcare change? What police protection will there be for me if I ask customers to follow safety procedures and they refuse? What infrastructure, like testing, will be kept in place for businesses?"