10 February 2022
Mandatory self-isolation for those infected with coronavirus and their unvaccinated contacts is planned to end soon - perhaps this month.
Employers have both an implied duty to take reasonable care of the health and safety of employees and must provide a safe working environment. If workers raise any health and safety concerns, employers also have a legal obligation not to treat the employee detrimentally because of the concern they have raised.
Should these changes be introduced, employers will have to consider four key questions:
- can we insist on regular negative lateral flow test (LFT) results being logged with the organisation before we allow a worker to be in contact with others in the workforce or workplace and what about the associated costs?
- is employer mandating of (double or, perhaps, triple) vaccination now more justifiable?
- should we now insist on mask wearing throughout the working day in all work settings to provide a safer working environment?
- if we exclude from the workplace a worker who has a positive lateral flow test but is asymptomatic, such that Statutory Sick Pay (SSP) will no longer be payable, will we be obliged to pay them their normal pay?
In the battle to attract and retain talent, employers need to get this right both in the perception of their workforce to maintain staff engagement and to mitigate the risk of employment tribunal claims.
Such employment tribunal claims could include:
- detriment or unfair dismissal for raising health and safety concerns – a claim available from day one of employment.
- discrimination where mandatory measures listed above may impact workers that share a protected characteristic such as age, pregnancy, religion, ethnicity etc.
- unlawful deductions from wages if employers have provided LFTs but deducted any associated costs from wages without the worker’s prior written agreement.
There are also National Minimum Wage (NMW) non-compliance risks to be aware of. If the worker has to bear the cost of each LFT, that cost will reduce pay for NMW compliance purposes. The time taken to undertake the test may also count as working time for which the worker must be paid at least NMW.
The answer is proportionate action by employers for which they need to have legal justification but the detail on how to achieve this varies case by case.
If you are an employer and you require support with this issue, please contact Carolyn Brown.