The end of Plan B and how to respond

The end of Plan B and how to respond

Following the government’s lifting of Plan B Covid-19 measures in England, we discuss some key considerations for employers.

In early December, as the Omicron variant began spreading across the UK, the government announced that England would move to Plan B: NHS Covid passes became mandatory for nightclubs and other large gatherings, face coverings were made compulsory in most indoor venues, and those who could were advised to work from home.

By mid-January, however, as cases fell, the prime minister announced that Plan B restrictions would end on 26 January. Facing a return to normality amid a changing work landscape and with the virus continuing to circulate, employers are left with decisions to make. Here, we address some common concerns.

A staggered return?

There is no requirement for businesses to bring all their staff back to the office at once, says Hannah Thomas, a solicitor and employment law specialist at Markel Law. “Some businesses have enacted a hybrid working model for their staff, while others are in no rush to fill desks at least in the short term, instead allowing employees to choose when, or if, they come in”, she says. “It’s a matter for employers to determine based on discussions with staff”.

Some workers are reluctant to return, citing benefits of remote working such as money saved from avoiding childcare and commuting costs. Others may be anxious about returning to work while Covid-19 cases remain high, particularly if they live with someone who is clinically vulnerable. For these people, the employer can ultimately insist that they return to their contractual place of work, says Hannah, and “an unreasonable refusal to do so could be dealt with as a disciplinary matter”.

However, employees with at least 26 weeks of continuous employment have a statutory right to request a flexible working arrangement. Employers must respond within three months, and must cite at least one of the eight reasons for refusal set out in the Flexible Working Regulations 2014:

  • the burden of additional costs
  • an inability to reorganise work amongst existing staff
  • an inability to recruit additional staff
  • a detrimental impact on quality
  • a detrimental impact on performance
  • a detrimental effect on ability to meet customer demand
  • insufficient work for the periods the employee proposes to work
  • a planned structural change to your business

Notwithstanding their legal obligations, employers should consider staff concerns fairly and in confidence, says Hannah. For example, if an employee makes a flexible working request despite not having the statutory right to do so, best practice would be to consider the request on its merits and, if rejecting it, cite the same reasons that are set out in the statutory regulations.

Assessing risk

Employers are legally required to carry out a Covid-19 risk assessment which is tailored to the workplace and the dangers of the virus. Businesses with at least five employees must do this in writing. The results of the assessment must be shared with staff, and a safe system of work set up in accordance with the government’s “Covid-19 secure” guidelines. The assessment should be periodically reviewed to ensure it stays up to date, and any changes communicated to staff.

Clinically vulnerable

Those who are at an increased risk from Covid-19 are no longer advised to work from home. People who were previously asked to “shield” (sometimes referred to as “extremely clinically vulnerable”) are advised by the government to “follow the same guidance as the public on staying safe”. However, the advice continues, “as someone with a health condition, you may want to consider, alongside any advice from your clinician, if additional precautions are right for you”. These include avoiding meetings with unvaccinated people, practising social distancing, asking people to take a lateral flow test before visiting you, and wearing a face covering.

As a result, employers may receive requests from employees asking for adjustments to accommodate these “additional precautions”. Employers should “give consideration to these where they can reasonably accommodate”, says Hannah, but there is only a legal requirement to make reasonable adjustments for those who are disabled under the terms of the Equality Act 2010.

Pregnant women are classified as “clinically vulnerable” to Covid-19 because their risk of severe illness is higher, particularly in the final trimester. By law, employers are required to carry out a workplace risk assessment for all pregnant staff. Employers must ensure that those in their third trimester can “adhere to any national guidance on social distancing”. Employers are also advised to incorporate social distancing as a measure in their risk assessment during this period.

Testing and masking

The latest government guidance on working safely during the pandemic is silent on whether employees should test their staff in most workplaces, says Hannah. Last July, the government stopped providing free lateral flow tests for workplaces, although members of the public can still currently order tests free of charge at the time of writing. As a result, employers are left to choose whether to fund the cost of test kits privately or suggest that staff use their own tests. For many businesses, staff are encouraged – but not required – to self-test prior to entering the workplace.

Since the lifting of Plan B restrictions in January, there is no longer a statutory requirement to wear a face covering in any setting in England. The government does still advise their use in “in crowded and enclosed spaces where you may come into contact with other people you do not normally meet”, however, “employers may wish to retain workplace policies requiring employees and visitors to wear face coverings based on their own risk assessments in some situations”, says Hannah, “such as if the workplace is poorly ventilated, or where employees are in communal areas where they may come into close contact with others”. This is something businesses should consider in their risk assessments, along with any adjustments that might be needed for staff and clients with disabilities who may not be able to wear a face covering”.

The legal requirement to self-isolate

The legal obligation to self-isolate due to coronavirus relates to individuals being contacted and told to self-isolate by NHS Test & Trace. Small and medium-sized employers can again claim refunds of statutory sick pay paid to employees for Covid-related absences since 21st December 2021 until this rebate scheme closes on 24 March.

The legal requirement to self-isolate remains for now, but the government has announced that the statutory self-isolation requirements and the associated payment of statutory sick pay to those self-isolating will end in England on or before 24 March 2022 (when the relevant regulations expire). In this eventuality, employers may need to review and update their sickness absence policies.