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Legal changes

“Freedom Day” throws organisations into COVID-19 quandary

The advice from the English Government is arguably inconsistent.

The much heralded (Step 4) changes effective from 19 July 2021, bringing to an end social distancing and the compulsory wearing of face masks has received at best a mixed reaction from the general public. Polling for The Times by YouGov revealed 55 % felt that lifting the restrictions was “wrong”.

Leaving aside public reservations, we examine the implications of the changes for employers and organisations in both an employers’ and public liability context.

The position prior to the 19 July 2021

Pre 19 July 2021, employers were required to consider primarily whether employees could, “where possible”, safely undertake their work from home.

Additionally, employers and occupiers of the premises were required (amongst other things), to implement and control social distancing, reduce human interaction, clean surfaces and premises more frequently and thoroughly and ensure adequate ventilation and encourage good sanitation procedures.

Whilst this was interpreted loosely by a minority of businesses and organisations, the majority adopted a diligent approach which helped restrict COVID-19 transmission. In an employment context, the latest HSE data (up to 10 June 2021), reveals just over 33,000 RIDDOR reports completed by employers who had “reasonable grounds” to link positive COVID-19 tests to the workplace.

In the context of over 5 million positive cases in the population at large, just a fraction of the overall positive cases can be said to be directly linked to employment.

Has the position changed post 19 July 2021 for employers?

In conjunction with the implementation of Step 4, the Government issued “Guidance on Working Safely” on 14 July 2021. It is a document drawn up following input given by Public Health England (PHE), the Health and Safety Executive (HSE), The Department for Business Energy and Industrial Strategy and with trade unions.

Consequently, this document and the guidance within, is likely to be the legal yardstick by which an organisation’s conduct will be judged in the event of personal injury claims made against them for COVID-19 occurring after 18 July 2021. It differs from previous guidance in one key way in that previous advice was to “work from home where possible”. This has now changed to “the government expects and recommends a gradual return to the workplace over the summer”.

As to personal protective equipment (PPE) and face coverings, the guidance makes important distinctions. It does not recommend the use of PPE to protect against COVID-19 risks;

“unless this is in a clinical setting or dealing with a positive COVID-19 case or where the risk of COVID-19 transmission is high”.

It does however encourage the use of face coverings in indoor areas, especially those in enclosed crowded spaces. However, the guidance recommends consideration of those with disabilities who may find it difficult to communicate with those wearing face coverings. The duties to adequately risk assess, provide adequate ventilation, clean more frequently and reduce contact and interaction still remain.

We suggest, in order to avoid or limit legal liability, a cautious, risk averse approach is taken by employers in interpretation, certainly in the present circumstances where positive cases are rising rapidly in the context of a highly contagious Delta variant.

So what will this entail?

For the majority of factories and warehouses where working from home has never been a feasible option, we suggest that steps taken pre-19 July 2021 should endure, to ensure compliance with Step 4 guidance. For those occupations where working from home has previously been an option, we suspect the majority of employers will migrate to the so called “hybrid working pattern” – part home, part workplace. This would limit employees’ attendance and meet the principles of reducing contact and allowing sufficient spacing and delineation within offices.

This is not to say that employers who choose (and are contractually entitled) for employees to return to the workplace en masse are prevented from doing so. It will, however, be incumbent upon those employers to manage COVID-19 risks carefully. Measures such as encouraging the use of face coverings, one-way traffic routes, adequate desk spacing, screens and sanitation procedures will all be needed. So far so good, in terms of the straightforward factory/warehouse/office scenarios.

What then of occupations in England which have a public facing role?

Recognising that due to devolution, the governmental position on face masks is different in England to that of Scotland and Wales, it appears to us, counterintuitive in the knowledge that; (a)ONS data repeatedly shows that those in public facing roles are at greater risk of contracting the virus and (b)in the context of rapidly rising cases with a contagious Delta variant that organisations as diverse as supermarkets and theatres cannot easily compel those visiting to either observe social distancing or to wear masks/face coverings.

The advice from the English Government is arguably inconsistent – stating that mask wearing indoors is a matter of “personal responsibility”, yet recommending that businesses should require them to be worn on their premises.

No wonder organisations are fearful that without the element of compulsion, they risk increasing COVID-19 risk to their employees and of the increasing COVID-19 rates generally. Whilst it is open to all organisations to set their own rules for visitors, wider governmental messaging means that the majority if not all will feel uncomfortable in making the wearing of a mask/face covering a prerequisite of entry.

We are presently just days into “Step 4”, relaxation. There are some encouraging signs that the majority of the public will continue to wear masks indoors and in public places. However, the spectre of overbearing individuals asserting their right not to socially distance or wear masks/face covering is real and we suspect, will be a growing problem for organisations.

The Times (19 July 2021) quotes Chris Hopson, Chief Executive of the NHS Employers organisation, being told by several chief executives of;

“Increasing numbers of very aggressive, very determined people have a belief that it is their right not to wear a mask or socially distance”.

If this scenario is already playing out in healthcare settings where compulsory mask wearing is maintained post 19 July 2021, we can only imagine why some retailers, to include leisure and hospitality, feel that they are in a quandary with regard to their duties as employer and occupier in minimising risk to their employees and visitors alike.

By leaving each venue to, in effect, devise their own policy on COVID-related precautions such as masks or COVID passes, consumers face the confusion of having to adopt a different approach to enter different premises during the course of, say, a shopping spree or night out. Depending on how the venues police such precautions, such confusion leads to frustration and then can quickly escalate to confrontation, including abuse or assault.

By way of examples, last month’s Home Affairs Select Committee Report ‘Violence and abuse towards retail workers’ highlighted how the rise in assaults against retail workers over the past five years had been heightened during the pandemic, with an 80% rise in serious assaults and abuse against staff in the banking sector reported in the 12 months up to March 2021 compared to the previous year. Wickes reported an 84% increase in incidents in 2020 and the Co-operative group reported a 76% rise of incidents of anti-social behaviour. The trend was upwards even prior to the pandemic - the British Retail Consortium was already reporting a 7% rise in incidents of violence and abuse in the year prior to March 2020.

As venue operators decide how to balance this risk of violence with the precautions required to provide consumer confidence, operators and employers are likely to have to consider more than ever to what extent staff should intervene to ensure compliance with any entry conditions, and whether dispute resolution/abatement training should now be offered as part of the standard training offering to staff.

The risk of this unravelling in England, in the form of a slow motion car crash over the next six to eight weeks is in our view very real. There are alternatives – most mooted by the Tony Blair Foundation which include the introduction of COVID-19 passports (primarily to increase vaccine uptake amongst the younger population) and the restoration of compulsory mask wearing in public places. We recognise that these may not be welcomed by a minority, championing civil liberties and the right of individual determination.

However important these rights may seem to the fabric of our society, there are two persuasive points to be made:

Firstly, whilst vaccination does appear to break the link with the number requiring hospital treatment, there is no convincing evidence to suggest this has a similar impact on those developing Long COVID. The REACT survey [24 June 2021] pointed to two million of the UK adult population having Long COVID in February 2021. That on its own, is and will continue to impose an enormous financial and healthcare burden on the country for years to come. The additional impact of current and rapidly rising rates of infection risks increasing the Long COVID burden to unsustainable levels.

The second argument is more prosaic. The same YouGov poll revealed more than 50 % of the population currently feel “uncomfortable’’ about visiting a party with lots of people and 48 % “unhappy’’ about visiting a theatre.

The inconsistent and contradictory messaging of the English Government risks denting public confidence even further. We may end with a society which in theory is “fully open” for business, but with a population too fearful to take part.

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