Goodbye to all that – but is it, really? (UK)David Whincupon January 21, 2022 at 2:10 pm Employment Law Worldview


So is that it, then?  Is Covid behind us for all practical purposes in England, no masks, no working from home, no vaccination passes, all going or gone?  Or, in nearly the words of Mark Twain, are reports of the death of Plan B greatly exaggerated?

Obviously, no one would suggest any connection between this week’s Government’s announcement of the end of Plan B restrictions when there are still 100,000 reasons a day to hesitate on the one hand and Downing Street’s desperate need for some good news on the other, so let us discount any political influence in this right now, yes?  However, the ending of Plan B has had a pretty mixed reception. Many senior medical advisers are audibly sucking their teeth over this being a bit early and the Government’s SAGE panel is quite clear that WFH remains the most effective means of blocking transmission, while City centre coffee shops and Dubai hoteliers are predictably thrilled.

The announcement obviously has some ramifications for employers, but while obvious in principle they are not so clear on the ground, and it does not provide answers to many of the practical questions which will now arise. Boris advises employees to “start talking to their employers about the return” but we don’t recommend that employers wait for their staff to approach them on this, not least because for the most part they just won’t. Instead businesses should be considering their positions in advance so that they can be on the front foot in what happens next. Here are some starters:

Does the ending of the “WFH if you can” advice mean that I can now require my staff to return to the office?

Yes and no.  Yes in the sense that the withdrawal of that advice means that those employees’ normal place of work becomes the office again, and that they can only work elsewhere with your agreement.  Against that, no if the employee makes or has made a flexible working request for full or partial WFH and you don’t have a good reason for refusing it.  Your list of good reasons is at Section 80G ERA 1996 – essentially anything which demonstrates some material prejudice to the business if the employee does not return as requested. There are three main provisos to this.

First, the more intangible the reason or the more it is based on your assumption or anticipation rather than established granular fact, the harder it will be to enforce.  Therefore if you are going to insist on a physical return to the workplace, you need to be as clear and comprehensive as you can in the reasons you rely upon.

Second, as we have written before that is a decision which should be made on a first-come, first-served basis and largely without regard to the personal circumstances of the employee or the reasons why he/she wishes to continue WFH.  Ultimately the question is whether the arrangement the employee seeks works adequately for the business – if it can be shown after consultation with the employee that it just does not, the request can and should be refused.

Third, even if you can now mandate a return, do you actually want to?  Before automatically issuing instructions to get back in here or else, take a look at the broader question of recruitment, retention, motivation, productivity and costly square-footage, etc. and consider briefly whether that game is worth the candle.  Just because you can does not mean that it is necessarily a good idea for every business. While there is much academic work still to be done in assessing the precise impact of the pandemic and lockdowns on employee and candidate expectations, all the signs are that many will no longer accept “work-life balance” as meaning merely that they are at work while still alive. The balance of power and preference in that respect is quite clearly no longer where it was. Insisting on a substantial return to the office could therefore be actively harmful to your business, both now and in the longer term.

Does the ending of compulsory mask-wearing mean that I cannot still insist on it in all or part of my workplace?

No.  Covid is not over just because the Government’s agenda has moved on.  The health and safety risks which employees pose to themselves and others are the same today as yesterday, and so the precautions the employer is required to take under its statutory, contractual and tortious duties to its employees are effectively unchanged.  A significant drop in the number of daily infections will be required before an employer should feel confident in relaxing any of its current Covid-secure precautions.  The fact that Covid-related hospitalisations and deaths may be slightly off their peak and that the Government’s focus is elsewhere (on saving itself, essentially) will be of little legal or moral comfort if your premature abandonment of precautions in your workplace leads to serious illness or fatalities through Covid.  While there will undoubtedly come a point where the UK can genuinely “live with Covid” without restrictions, as the Government suggests (actually meaning that it accepts that quite a lot of people will die from it), we are not there yet.

Am I still entitled to insist that only fully-vaccinated employees may enter my premises or attend particular events?

Yes, on the same principles as above.  If that was a reasonable health and safety precaution last week, it still is.  The dropping of the Plan B requirement to wear masks in certain public spaces does not bind employers as occupiers or operators of private premises, so they can continue to impose that requirement if they wish (subject to the appropriate medical exemptions), and a number of public transport authorities have already indicated that they will do so. There may be objections from a small minority but most of your employees will be relieved, understanding and grateful, and so more likely to come back in when asked.

Does the end of Plan B affect my ability to dismiss staff who say they are too scared of Covid to come into work as required?

No.  In fact, just the opposite.  Especially after the recent ET dismissal of the suggestion that fear of Covid amounts to a philosophical belief warranting protection under the Equality Act, employees who cannot WFH but still wish to stay away from the workplace on Covid grounds will need to get themselves within Sections 44 or 100 Employment Rights Act.  These apply to protect the employee from detriment or dismissal where he has a reasonable fear that the workplace represents a serious and imminent threat to his health and safety.  A clear reduction in the level of Government concern about Covid in workplaces (as evidenced by the scrubbing of the WFH if you can guidance) clearly makes that fear somewhat less reasonable.  However, keep in mind that the protections of Section 44 and 100 are still easily within reach if the employer does not continue to maintain proper Covid-secure precautions within the workplace – not just the physical safeguards of social distancing, sanitiser everywhere and masks in common areas, etc., but arguably also the continued operation of no-jab, no-entry policies.

I have amended my sick pay scheme to treat vaccinated staff more favourably – am I allowed to maintain that distinction?

Yes.  The medical benefits to employees and those around them of being fully vaccinated remain unchanged.   Despite the Government’s announcement this week, we strongly suspect the same will be true of the encouragement of employers in Acas and other official guidance to lean vigorously on their unvaccinated staff to get jabbed. The legislative mood across the EU is becoming increasingly inhospitable towards their unvaccinated populations and for so long as we are only one Variant of Concern away from being back in March 2020, trade and travel considerations suggest that there is little likelihood that the UK will take a materially different view.

Employment Law Worldview

Leave a Comment