Posted: 15 February 2022

Employment Law Update – Summary February 2022

One of the benefits for being a member of My People Partner is that you receive an in-depth Employment Law Update at the start of every month. What follows is a summary of the February 2022 report.

COVID-19

The UK Prime Minster announced on 19^th January a return to Plan A in England:

Working from home guidance ends with immediate affect
From 20^th January 2022, face masks will no longer be required in school classrooms
From 27^th January 2022, mandatory certification will end (organisations can choose to use the NHS Covid Pass voluntarily but the compulsory use of Covid status certification in England ends)
From 27^th January 2022, the wearing of facemasks anywhere will no longer be mandatory, although the government will continue to suggest the use of face coverings in enclosed or crowded places, particularly where you meet people you don’t normally meet
Restrictions on visits to care homes will be eased
It will continue to be a legal requirement for those who have tested positive for Covid to self-isolate.

Testing

From 11th January 2022 those in England who have a positive lateral flow test, but no Covid symptoms no longer need a PCR test to confirm the result.
From 10^th January 2022, 100,000 critical workers in England will be provided with free lateral flow tests so that they can take a test every working day.

Self-isolation

From 17^th January 2022, self-isolation in England for those who have tested positive for Covid is five full days. Isolation can end at the start of day six if they have two negative tests on days five and six and do not have a temperature.
Those still positive on their rapid lateral flow tests must stay in isolation until they have 2 consecutive negative tests taken on separate days.
Those who leave self-isolation on or after day 6 are strongly advised to wear face coverings and limit close contact with other people in crowded or poorly ventilated spaces, work from home.

The Statutory Sick Pay Rebate Scheme (SSPRS)

Regulations came into force on 14^th January 2022 re-introducing the Statutory Sick Pay Rebate Scheme across the UK, allowing employers with fewer than 250 employees (as of 30^th November 2021) to recover up to two weeks’ Statutory Sick Pay (£192.70) for each employee who is off work suffering from COVID-19 or in self-isolation due to possible COVID-19 infection.
The scheme applies to any days of incapacity on or after 21^st December 2021, including where the period of incapacity started before that date.
The scheme will end on 24^th March 2022, which is the last date for claims to be submitted to HMRC. The financial limits under the new scheme are unaffected by any payments previously claimed under the old scheme.

Large scale absences in the workplace

On 2^nd January 2022, the government announced that ministers have been tasked with developing “robust contingency plans” for workplace absences, as the government warned rising COVID-19 cases could see up to a quarter of staff off work.
Public sector leaders have been asked to prepare for “worst case scenarios” of 10%, 20% and 25% absence rates.
Rising case numbers has already led to large numbers self-isolating and being unable to go to work. This has particularly affected industries where staff are unable to work from home.
The highly transmissible Omicron variant meant businesses and public services will face disruption in the coming weeks, particularly from higher-than-normal staff absence.
Public sector leaders have identified a range of mitigations, including identifying additional staff – such as volunteers in the public sector or former teachers in schools -prioritising service delivery and reducing bureaucracy. Should disruption occur the government has said that it stands ready to make sure that any necessary burdens to businesses are cut, for example by making regulatory, policy or operational changes which could minimise or alleviate potential disruption.

Vaccination of care home workers

On 6 January 2022, regulations were made making changes to the mandatory vaccination requirement that applies to care home workers in England. The following changes were made on 7th January 2022:
Individuals who have not previously been employed or engaged in the care home can be deployed if they have received a single dose at least 21 days before starting work. They must then obtain a second dose within 10 weeks of the first.
There is now an exemption for those taking part in clinical trials.
On 1 April 2022, further amendments will extend the mandatory vaccination requirement to those working in “any other regulated activity” outside a care home. Regulated activities include nursing and personal care, and most forms of health care including medical treatment, surgery, diagnostic services, ambulance services, midwifery, and dentistry among other things. The vaccination requirement will not apply where the person is under 18, is clinically exempt, has no face-to-face contact with service users, or where the regulated activity is part of a “shared lives agreement”. Similar exemptions will apply in relation to clinical trials and new employees who have only received one dose of vaccine.
There is also a provision for individuals who have received a course of certain COVID-19 vaccines not authorised for use in the UK.

Guidance on mandatory vaccination for workers in health and social care

On 14^th January 2022, the NHS published guidance on mandatory vaccination for workers in health and social care together with accompanying FAQs.
On 20^th January 2022, the Department of Health and Social Care (DHSC) published guidance on vaccination as a condition of deployment for the delivery of CQC-regulated activities in wider adult social care settings. Key notes are:
Healthcare settings include hospitals, GP practices, dentists, and community services where care is delivered in a person’s home.
In addition to frontline healthcare workers, non-clinical workers such as receptionists, ward clerks, porters and cleaners must also be vaccinated where they have direct, face-to-face contact with patients.
Volunteers, temporary and agency workers, and independent contractors with direct patient contact are covered.
For existing staff, the last day for first vaccination is 3^rd February 2022. New joiners after 1^st April 2022 must provide evidence of first dose of vaccination at least 21 days before starting work, and then evidence of full vaccination within ten weeks of first vaccination.
There are limited exemptions for medical reasons, participation in clinical trials and the under-18’s, with temporary exemptions for pregnant women and those who have recently tested positive for COVID-19.
In adult social care, vaccination status can be evidenced using the NHS COVID pass, an EU digital COVID certificate, or a Centres for Disease Control and Prevention vaccination card. In the healthcare sector, vaccination status can be established by asking staff directly, checking their own vaccination delivery programme or the national vaccination programme.
The guidance provides advice on the steps health and social care employers should take where workers are unwilling to be vaccinated (including consultation, possible redeployment, and dismissal).

Members of the My People Partner programme also received information relating to:

Volunteering – updated guidance from the Digital, Culture, Media and Sport for voluntary organisations and groups in England on how to involve volunteers safely and effectively in their work during the COVID-19 pandemic.
Health and Care Visa scheme – the Shortage Occupational List has been expanded to includesocial care workers, care assistants and home care.
Seasonal Worker Visa route – the Home Office and Department for Environment, Food and Rural Affairs extension of the Seasonal Worker visa route.
PPE – regulations have been extended and will come into force on 6^th April 2022.
Case Law
- Employer not vicariously liable for harm caused by practical joke
- Dismissal for frivolous and vexatious grievances was fair
- Black-cab driver who also worked through Mytaxi app was not a worker of the app-operator
- Woman with dementia wins unfair dismissal claim