22 Feb 2022

The UK Government has announced the end of all remaining domestic legal restrictions relating to COVID-19 in England*.  

Key points for employers

  • From this Thursday 24 February, individuals who test positive for COVID-19 (and individuals who are not fully vaccinated but in close contact with someone who tests positive) will no longer be required by law to self-isolate. Similarly, an individual will no longer be legally required to inform their employer that they must self-isolate.
  • The extended right to statutory sick pay, from Day 1 of COVID-related self-isolation, will end on 24 March.
  • The existing set of “Working Safely” guidance will be replaced by new public health guidance from 1 April – and the Government will consult with employers to ensure that such guidance continues to support them in managing workplace risk.

The overarching legal framework for employers remains unchanged.  Employers still have a duty to take reasonable care of the health and safety of employees and provide a suitable working environment (as they did before the pandemic). This will inevitably continue to require some account to be taken of COVID-19 risks, even though from 1 April, employers will no longer be required to consider COVID-19 explicitly in their risk assessments.

Some initial reflections

We think the forthcoming public health guidance will be very important in determining the precise scope of any responsibility on an employer to manage potential COVID health risks in the workplace – and the practical steps that might be deemed necessary to ensure continued compliance with its legal duties.

In practice, there is likely to be greater focus on whether any COVID-secure workplace measures that are retained by an employer are sufficient to protect employees who are clinically vulnerable (or who have been given medical advice not to get vaccinated). The Government has said clearly that: “Employers should continue to consider the needs of employees at greater risk of COVID-19, including those whose immune system means they are at higher risk of serious illness from COVID-19”.

Such employees are likely to be classed as “disabled”, meaning that the employer is required to make reasonable adjustments. This could require introducing additional safety measures that apply to that individual (based on specific medical advice) or, if practicable, across the wider workforce.  It may involve maintaining some existing COVID-19 measures (even if they are scaled back to some degree) although this will depend on the precise circumstances, workplace configuration and costs involved.

However, our initial view is that it is unlikely the duty would extend to requiring all employees who test positive to stay at home to protect vulnerable colleagues, unless they can work remotely (assuming they are well enough) or there are exceptional circumstances which justify it. The key will be what is “reasonable” – and, to justify other types of disability discrimination, whether any proposed measure is a “proportionate means of achieving a legitimate aim”.

Removing the legal obligation to self-isolate effectively means that if the employee is able and willing to work, they would likely be entitled to full pay if they can only perform their role in the workplace but are told not to come in. In most cases, we think this would go beyond what could be considered reasonable, even for larger businesses.

However, a prudent employer might still consider paying for an employee who has COVID-symptoms to take a test (as these will no longer be available free of charge for most people in England, from 1 April), with appropriate encouragement for those who test positive to make a responsible choice about whether to attend work.

Full details are available in the Government’s “COVID-19 Response: Living with COVID-19” document, which was published last night.

*NOTE: Different rules apply in each of Scotland, Wales and Northern Ireland.