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In brief

The government has published updated guidance for employers that applies in England from Monday 19 July 2021, to coincide with the ending of almost all remaining mandatory COVID-19 related restrictions. The upshot of the guidance is that the government shifts responsibility to employers to determine when and how to initiate, or ramp up, a return to the office, including what ongoing safety measures might be required.


In more detail

The government has published Working safely during coronavirus (COVID-19): guidance from Step 4. It has also published updated guidance for people who are clinically extremely vulnerable: 19 July guidance on protecting people who are clinically extremely vulnerable from COVID-19.

The Working Safely guidance has separate documents for different workplace settings; this article focuses on the guidance for office settings. The main message that emerges from the guidance (as previously announced) is that, from 19 July, the government:

  • is ending social distancing
  • is no longer instructing people to work from home
  • expects and recommends a gradual return to the office over the summer
  • reminds employers that they still have general health and safety obligations, which covers the risks posed by COVID-19

Unpacking this a little further, it is clear that the focus of Step 4 is to shift decision-making to employers. Although working from home is no longer expected and social distancing is ending, the government does expect employers to assess COVID-19 transmission risks in their workplaces and take appropriate steps to reduce risk. What this means is that some quasi-social distancing measures are likely to still be appropriate in many workplaces, along with a focus on good ventilation, hygiene and cleaning. We’ve picked out the most salient points from the guidance below, some of which are similar to the advice that has been in place during Step 3:

  • Phased return to office: as already mentioned, the government has explicitly said it recommends a gradual return.
  • Capacity: closely linked to the last point, although the guidance doesn’t impose any capacity limits, a gradual reopening obviously limits numbers on any one day. There are other passages in the guidance acknowledging that hybrid working is likely here to stay for many employers and suggesting that you should consider whether someone is required to come into the office. The guidance also says that if you have poorly ventilated areas one option you should consider is closing that area – clearly, this might have a knock-on effect on capacity.
  • Working patterns: the guidance suggests considering having fixed teams or partnering, in order to reduce mixing
  • Workstations:
    • Employers should consider using screens or barriers to separate people from each other, or using back-to-back or side-to-side working, instead of face-to-face. However, the guidance clarifies that screens are only likely to be beneficial if placed between people who will come into close proximity with each other.
    • The guidance says that workstations should be assigned to an individual if possible. We read this as meaning that, if possible in your particular workplace, hot-desking should be avoided. However, the risks of hot-desking can be avoided with appropriate cleaning.
  • Face coverings: the guidance says “the government expects and recommends that people continue to wear face coverings in crowded, enclosed spaces.”  “Consider encouraging the use of face coverings by workers (for example through signage), particularly in indoor areas where they may come into contact with people they do not normally meet. This is especially important in enclosed and crowded spaces.” Whilst it is clear that face coverings will no longer be mandatory, it is also clear that the government considers they are one option that employers should consider in their steps to mitigate the risks posed by COVID-19 transmission in the workplace.
  • Testing: the guidance does not actively promote employer-arranged testing, although reminds readers that employers can choose to implement this. There are legal and practical risks with implementing mandatory, employer-led testing, which we would be pleased to advise on. Encouraging voluntary testing is lower risk.
  • Vaccination: this guidance is mostly silent on vaccines. However, as is clear from separate guidance, published on 12 July, the government is not mandating vaccinations or asking employers to do so, but rather to assist in encouraging their members of staff to get vaccinated (COVID-19 vaccination: guide for employers). Measures they suggest include giving time off for vaccination appointments, appointing departmental vaccination champions, Q&As and internal briefings. Mandatory vaccination policies are therefore out of line with overall national policy at this time (save for care homes and, potentially, for access to venues like nightclubs) and likely to carry significant risk for most workplaces. Please reach out to our team if you would like advice on this issue.
  • Consultation: finally, the guidance strongly encourages consultation with the workforce. Employers have a legal duty to consult in relation to some health and safety matters. But, more importantly, consultation is likely to improve workforce cooperation with reopening plans.

It is clear that employers still need to tread carefully as staff start to return to the office, or start to do so in increasing numbers. This latest guidance leaves a large margin of discretion to employers but caution is its overall message. There have been a handful of employment tribunal cases concerning the health and safety risks posed by COVID-19 and employers who have demonstrated compliance with government guidance have tended to fare well.

In relation to clinically extremely vulnerable members of staff, the thrust of the guidance is to make adjustments for them where possible. This might include continued working from home, if reasonable.

Author

James Brown is a Knowledge Lawyer in Baker McKenzie's London office.

Author

Mandy Li is a Knowledge Lawyer in Baker McKenzie London office.

Author

Rachel Farr is a Knowledge Lawyer in Baker McKenzie's London office.

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