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Legal changes

The changes to and lifting of the restrictions have not been universal across the UK.

Introduction

19 July 2021 has been heralded “Freedom Day” when all restrictions in England will be lifted. With the ongoing concerns raised by some that the easing of restrictions has come too soon and other nations not following suit, businesses are now left with the challenge of wading through the less than clear path for employees to return to work.

The changes to and lifting of the restrictions have not been universal across the UK, but there is no doubt the overarching message from the chief medical experts is any action should be considered and implemented with caution. Businesses making decisions about what returning to the workplace will look like have naturally sought advice on how to deal with the likely challenges in the upcoming months and we have set out some of the most common queries received to assist you in your planning.

What are the changes and when do they take effect?

Where When What
England 19 July 2021
  • No limits on how many people can meet indoors or outdoors
  • No longer a government instruction to work from home
  • No social distancing required
  • No requirement to wear face masks – though the government still "expects and recommends" them in crowded areas
  •  All remaining closed business and venues can reopen
  16 August 2021
  • If fully vaccinated, you will be exempt from having to self-isolate if you are a contact of a positive case. Instead, asked to take a PCR test as soon as possible
  • If under 18, also exempt from self –isolation if contact of a positive case and will be advised whether a PCR test Is necessary
Scotland 19 July 2021
  • Restricted numbers when meeting:
    • Up to 8 people from 4 households in homes and can stay overnight
    • Up to 10 people from 4 households in indoor public places like a café, pub or restaurant
    • Up to 15 people from 15 households outdoors
  • No social distancing from family and friends in a private home
  • No social distancing outside within your social grouping of up to 15 people, but maintain at least 1 metre from all others outside
  • Maintain at least 1m distance from other households in all indoor public settings
  • Travel anywhere in Scotland in Levels 0, 1 or 2 but must not enter Level 3 or 4 areas unless for a permitted reason
  • Still encouraged to work from home - return to offices in a limited and phased way are now being changed to post Level 0.
Wales 17 July 2021
  • Restricted numbers when meeting: up to 6 people can meet indoors in private homes and holiday accommodation
  • No limit on the number of people who can gather outdoors
  7 August 2021 (if conditions allow)
  • Removal of all legal restrictions on number of people meeting indoors (including private homes, public places or events)
  • All businesses and premises can open, including nightclubs
  • Still encouraged to work from home wherever possible
  • Face coverings will remain a legal requirement indoors, with the exception of hospitality premises. This will be kept under review

Can we ask all employees to come back to the workplace now?

There are different rules operating in different nations at different times, so if your business operates across borders, you need to be aware of the differences and consider how you will apply a fair and consistent approach to any return to work.

It is still encouraged that any return to work is done gradually. Furthermore, it should be acknowledged that employees may be hesitant or anxious to return to work, especially with the lifting of restrictions. Employers need to understand the concerns of their staff and consider the following:

  • Understand (perhaps by conducting a staff survey):
    • Who wishes to return to workplace on a full time basis
    • Who wishes to return to some form of hybrid working arrangement
    • Who does not wish to return to the workplace and what their reasons are
  • Whether you have adequate measures in place to make employees feel safe to return to the workplace?
  • Whether you have clinically vulnerable employees and/or need to make any reasonable adjustments?

What measures should be retained and/or lifted?

Though the removal of restrictions may be considered a positive step, it does leave many businesses in a problematic position. Businesses looking to plan ahead may wish to maintain a certain level of (if not full) compliance with the current measures beyond “Freedom Day”; mask wearing and social distancing may not yet be a thing of the past. Furthermore, if businesses identify that employees are hesitant to return to work, continuing with current measures may be a way to alleviate any concerns and/or anxiety around coming back.

Notwithstanding the easing of restrictions, employers still have a legal duty to manage and limit risks to those returning to work and/or visiting their premises. Therefore, we continue to recommend carrying out and refreshing any health and safety risk assessment and to take reasonable steps to mitigate any risks identified.

The Government in England has produced new guidance on working safely, published to coincide with the move to Step 4. This significantly slims down the 14 separate sector-specific guides provided to employers earlier in the pandemic to just 3; offices and contact centres; factories, plants and warehouses; and labs and research facilities. All provide tailored guidance on assessing and reducing ongoing risk; for example, around accessing employee testing, and the appropriate use of PPE going forward. The guidance is not prescriptive, and allows employers broad discretion to make their own choices. However, it has been criticised for being vague on key issues such as data protection, and failing to provide the structured support some employers had been hoping for. Updated return to work advice has also been produced in Scotland and Wales.

How best do we manage self-isolation, sick pay and absences?

The requirement to self-isolate will be a continuing feature (though there are some nuances depending on age and whether you have been vaccinated twice). Businesses need to continue with contingency planning around staffing requirements and may need to look at more flexible and/or casual working arrangements to fill the gaps as and when they arise. It is highly unlikely that businesses will not continue to be impacted with ongoing periods of absences and self-isolation, so now is the time to plan ahead and implement measures to avoid any decline in productivity or efficiency.

Certain sectors are also pushing for statutory sick pay (SSP) to continue to be a day 1 right (rather day 4). This change, introduced by the Coronavirus Statutory Sick Pay Rebate Scheme, has already assisted many small and medium sized businesses (with fewer than 250 employees) with the costs of paying coronavirus-related statutory sick pay throughout the pandemic. However, with the furlough scheme tapering off up until its conclusion at the end of September, many businesses still consider there to be a need for some form of ongoing financial assistance to manage absences. This is especially true of smaller business, many of which have had to close entirely when one member of staff has tested positive and the rest have to self-isolate due to the size and resources of the organisation.

Adapt and Learn

Businesses will no doubt take the time to understand and observe what others within their sector are doing. That makes perfect sense; but let’s not disregard the value of what you have learned and advanced in your own business over the last 15 months. Businesses had to adapt overnight to the pandemic and have continued to do so during that time. What we have all learned is that we have managed to be extremely flexible, resilient and productive in these challenging times and the good will and loyalty that has been displayed by employees should not go unnoticed and must be built upon.

There is a genuine opportunity for businesses to consider other ways of working that enable and foster a better culture, positive values and increased productivity within the workforce. There will be a spectrum of how restrictions are lifted or implemented across industries and sectors, so be very clear on why you choose to adopt the measures you do. Demonstrate the insights and understanding you have gained from working through this turbulent period. Communication will be key to getting this right.

For further information or to see how we can assist you, contact our local government solicitors.

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