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England unlocked: employers need clarity before government lifts covid restrictions
06/07/2021
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People wearing face masks on Oxford Street, London
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John VDLD
John van der Luit-Drummond is editor-in-chief of International Employment Lawyer

The UK government has announced the easing of lockdown restrictions in England from 19 July, controversially bringing an end to mandatory face masks, social distancing, and a requirement to work from home where possible.

The move to return workers to the office comes despite a rising tide of new covid-19 infections – linked to the new Delta variant of the disease – across the UK. Data shows a further 27,334 covid cases on Monday, with nine deaths within 28 days of a positive test.

However, the government has argued that, with 63% of adults now double jabbed, vaccines have broken the link between covid infections and deaths.

The government said reopening the economy was safest in the summer, but did suggest covid restrictions could be reintroduced in the autumn should new variants of the novel coronavirus appear less responsive to vaccines.

Announcing the plans yesterday (5 July), Prime Minister Boris Johnson said revocation of the rules was to “move from a universal government diktat to relying on people’s personal responsibility”.

While welcoming the prospect of reopening the economy, Shevaun Haviland, director-general of the British Chambers of Commerce, said businesses still do not have the full picture they need to plan for unlocking.

“Without clear guidance for businesses around the new proposals, there could be real uncertainty on how they should operate going forward and what they should be doing to keep staff and their customers safe,” he said.

“This could lead to a fractured, patchwork approach with very different positions being taken by many businesses, across many locations. That, in turn, could severely undermine the public’s trust in reopening.

“All of this means the huge logistical headache firms face around reopening hasn’t disappeared and there remains a real risk of damage to business confidence.”

In agreement, Mike Cherry, national chairman of the Federation of Small Businesses, said: “Previous false dawns have proved disruptive and disappointing. Any celebrations will be on hold until we know what new operating rules will look like – we urgently need clarity. 

Cherry said companies will need a host of questions answered in the next 14 days, chief among them: What to tell staff worried about the safety of public transport? What happens if someone contracts covid on business premises? How will the rules around schooling and childcare change? And what testing infrastructure will be kept in place for businesses? 

“After enforcing restrictions for so long, the government must not simply withdraw and allow a free-for-all,” added Cherry. “The sooner we have crystal clear, comprehensive guidance from [Department for Business, Energy and Industrial Strategy], the better.”

...many businesses’ decisions in relation to their workplace will be informed as much by public opinion (and attitudes to measures such as masks and social distancing) as the law

Joining the calls for clarity, Tom Ironside, director of business and regulation at the British Retail Consortium, said: “It will take consumers and businesses time to adjust and it is vital that government messaging is clear and consistent so that businesses and consumers easily understand what is expected of them both legally and individually.”

“The focus now seems to be moving to individual or corporate decision-making which may leave employers feeling lost as to how to proceed after many months of prescriptive guidance,” Caroline Baker, a partner at GQ|Littler told IEL.

“However, employers facing new freedom around decision-making should not feel overwhelmed – we understand that there will still be overarching guidance for employers and this should be used to help inform decision-making for any particular business in the same way other health and safety issues are managed.

“In any event, it is likely that many businesses’ decisions in relation to their workplace will be informed as much by public opinion (and attitudes to measures such as masks and social distancing) as the law.”

Unions have accused the government of throwing caution to the wind over workplace health and safety. Speaking ahead of the prime minister’s announcement, TUC deputy general secretary Paul Nowak said it was vital people returning to work had confidence their workplaces were covid-secure.

“It is not acceptable for the government to outsource its health and safety responsibilities to individuals and to employers,” he said. “Personal responsibility will have a role to play, but ministers cannot wash their hands of keeping people safe at work.”

With new covid infections expected to reach 50,000 a day by 19 July, the TUC called on the government to send a clear message to employers to play by the rules or face consequences.

“That means publishing clear guidance based on the most up-to-date science and consultations with unions and employers,” said Nowak.

TUC polling published last month revealed many employers have still not taken the necessary action to ensure the safety of their workplaces.

Nearly half of workers surveyed said their employer had not taken technical measures to improve airflow at their workplaces, while one in six said they have not been given personal protective equipment, and one in ten revealed social distancing still is not enabled in their workplace.

Unison assistant general secretary Jon Richards said the government’s “hasty changes” would create “a confusing cocktail of guidance” adding that the plans were “just too much too soon”.

“Removing most precautions at a stroke won’t do anything to help reassure the thousands of nervous commuters who are due to return to their workplaces in a fortnight using crowded public transport,” he said.

“If progress isn’t to be thrown away completely, there has to be a real effort to improve ventilation, maintain intense cleaning, and continue to provide sanitiser wherever it’s needed.”

Employers will be walking a tightrope but no matter the pressures they come under, they would be well advised to follow government guidance, maintain a focus on health and safety, and to listen to the concerns of all stakeholders

With recent polling finding more than 70% of the UK public plan on continuing to wear masks while on public transport, the government’s lifting of this particular restriction may be the most controversial.

Current advice from the World Health Organisation says: “Masks should be used as part of a comprehensive strategy of measures to suppress transmission and save lives; the use of a mask alone is not sufficient to provide an adequate level of protection against covid-19.”

Lucy Lewis, a partner at Lewis Silkin, told IEL: “Some employers will no doubt want to adopt a more cautious approach than the law requires, perhaps going as far as asking staff and customers for mandatory testing or vaccination or continuing with mask-wearing or social distancing requirements, which may ruffle a few feathers particularly from those wishing to put the pandemic behind them and live ‘normally’ again.”

Businesses that choose to enforce mask-wearing past 19 July were advised by Downing Street to seek legal advice on their responsibilities under the Equality Act. However, Lewis said it would be difficult, save in exceptional cases, to see any legal issues with companies taking more cautious approach on continuing to mandate mask-wearing.

“Ultimately, employers will need to follow the updated guidance once released. The reality of the situation though is that post-19 July they will have to take autonomous decisions about the measures they put in place and without a nationwide, government-backed mask mandate to fall back on, many businesses will be between a rock and hard place – viewed as overly cautious and overbearing by those wishing to do away with restrictions and as reckless by those who still fear covid-19,” she continued.

“Employers will be walking a tightrope but no matter the pressures they come under, they would be well advised to follow government guidance, maintain a focus on health and safety, and to listen to the concerns of all stakeholders.”

Experts have also warned employers against forcing workers back into the office from 19 July. Peter Cheese, chief executive of the CIPD, the professional body for HR and people development, said the heralded “Freedom Day” could signal the start of greater freedom and flexibility in how, when, and where people work.  

“It should be down to individual organisations, consulting with their people, to agree working arrangements after the end of restrictions,” he said, adding that employers should continue to ensure they have the necessary measures in place to give confidence to workers that their workplace is safe.

Data from the Office for National Statistics showed 25.9% – or 8.4 million people – were working from home in May, more than double the number (12.4%) in 2019, months before covid-19 swept through Europe.

“Businesses shouldn't rush to simply revert to how they used to work now we have experience and evidence that it can be done differently, and with positive impacts on employee health and wellbeing, inclusion, and productivity,” Cheese continued.

“People generally want a mix of workplace and home working, and the possibility of more choice in their working routines, meaning hybrid working can provide an effective balance for many workers.

“Employers should be trying to understand and support individuals’ preferences over more flexible working arrangements where possible, balanced with meeting the needs of the business.”  

The UK government will announce its final decision on England’s lockdown restrictions on 12 July. The requirement to isolate after a positive covid test, restrictions on international travel, and mandatory social distancing at airports and ports will remain in effect.

The governments of Scotland, Wales, and Northern Ireland are responsible for their own policies in relation to public health matters under devolution legislation.