How should employers respond to the removal of coronavirus restrictions in England?
The legal requirements to self-isolate were removed in England on 24 February 2022. From 24 March 2022, coronavirus-specific rules on entitlement to statutory sick pay (SSP) are removed, so that an employee will be entitled to SSP only if they are unwell and not able to work (not if they are well but staying at home in line with government advice). From 1 April, free coronavirus testing will no longer be available to the public in England.
While there is no longer a legal requirement to self-isolate, government guidance advises that people with coronavirus should stay at home and avoid contact with others. Those who have been in close contact with an infected person are advised to work at home if possible and to limit close contact with people outside their household.
In response to these changes, employers should decide on their approach to employees who may be infectious with coronavirus but who are not themselves ill. Employers must ensure that they continue to comply with their health and safety duties and employment law responsibilities to employees. They should make decisions based on an assessment of the risks in their own workplaces. They should consider consulting with employees before deciding on their approach.
If employees are able to work from home, enabling them to do so is likely to be appropriate if they have tested positive or have been a close contact.
Where employees cannot work from home, an employer may decide on a policy of requiring them to stay away from the workplace, to avoid the spread of coronavirus. If it takes this approach the employer must pay employees in full if they are well and would otherwise be ready and willing to attend work (unless the contract allows for a reduction in pay).
Some employers may consider funding testing for employees, particularly where there are specific risks such as contact with people who are vulnerable from coronavirus.
Can an employer require an employee to attend work if they test positive for coronavirus but are asymptomatic?
The legal requirement for people who test positive for coronavirus (COVID-19) to self-isolate is removed in England from 24 February 2022 and in Wales from 28 March 2022. However, requiring employees to attend the workplace if they have tested positive may be a breach of the employer’s legal obligations to protect the health and safety of their employees and others.
The requirement to self-isolate after testing positive remains in place in Northern Ireland and Scotland. Employers must not require employees to attend the workplace in these circumstances.
Following the removal of the self-isolation duty in England, the government guidance COVID-19: people with COVID-19 and their contacts confirms that public health advice for people who test positive is to stay at home and avoid contact with other people. The guidance states that they should not attend work. It is left to the individual to choose whether to take lateral flow tests after five days. The guidance states that individuals can safely return to their normal routine with negative results on consecutive days if they do not have a temperature. Similar guidance is in place in Wales.
To comply with their health and safety duties towards employees, employers should encourage employees who test positive to follow the Government’s recommendation of staying at home. In particular, employers should keep in mind their duties towards employees who are clinically vulnerable from coronavirus, where working alongside colleagues who have tested positive would put them at a particular risk.
If an employee is advised to self-isolate to avoid the risk of spreading coronavirus, are they entitled to sick pay?
Employees who stay at home in accordance with government guidance on coronavirus (COVID-19) have previously been entitled to statutory sick pay (SSP), even if they are not ill.
The requirement to self-isolate has been removed in England from 24 February 2022 and Wales from 28 March 2022, and replaced by guidance. Elsewhere in the UK, the requirement to self-isolate continues to apply after a positive test or, in some cases, close contact with someone who tests positive.
As a result of the removal of the requirement to self-isolate, entitlement to SSP has reverted to the pre-pandemic rules from 24 March 2022 (i.e. it depends on incapacity for work).
Is long COVID a disability under the Equality Act 2010?
It is possible that long COVID could meet the definition of disability under the Equality Act 2010, but this would depend on the circumstances in each case, and the impact that the condition has on the individual.
Under the Act, a disability is defined as a physical or mental impairment that has a substantial and long-term adverse effect on an individual’s ability to carry out normal day-to-day activities.
A person does not need a formal diagnosis of a particular condition to fall within the definition, but they must be able to show that each element of the definition is met. The condition must last for at least one year to meet the requirement of being long term.
Therefore, where an employee has long COVID, the employer should consider whether their symptoms have a substantial adverse effect on their ability to carry out normal day-to-day activities, and whether this is likely to last for at least a year. This assessment should be based on medical evidence. Where the definition is met, the employer will have a duty to make reasonable adjustments for the employee.
Where it is unclear whether the employee is disabled within the meaning of the Act, for example if it is not known how long the symptoms will last, employers may decide that it would be appropriate to consider reasonable adjustments in any event. For example, it may be reasonable to support the employee to work from home or to adjust their hours.
What can employers do to support employees who are observing Ramadan?
During the month of Ramadan, which in 2022 will last from 2 April to 1 May, many Muslims will fast each day between sunrise and sunset, and perform additional prayers and other religious duties.
Employers should be aware of the potential effects on employees of not eating or drinking during the day, combined with a change to sleep patterns, and should consider taking steps to support them.
Employers should not assume that all Muslim employees will be observing Ramadan in the same way, or that those who are fasting will want the employer to make special arrangements for them. Employers could encourage all employees to discuss with them any impact that they think fasting could have on their work, and any measures that could be helpful.
Many employees will be working at home while observing Ramadan this year. This may mean that there is greater scope for flexibility in terms of their working hours. However, there could also be potential issues relating to employees’ wellbeing, such as working for long periods without interruption. Employers should encourage all employees working at home to take regular breaks, but this may be particularly beneficial for employees who are fasting.
Depending on the nature of the work, steps that employers could consider to support employees who are observing Ramadan include:
- arranging shifts to accommodate employees’ preferences where possible, for example so that an employee can finish work in time to break the fast at sunset;
- accommodating requests for annual leave;
- making colleagues aware that it is Ramadan and encouraging them to be supportive of their fasting colleagues, in particular by not offering them food or drink (where employees are still in the workplace);
- enabling employees to arrange their working days to allow for lower energy and concentration levels in the afternoon, for example by scheduling important meetings or work involving operating machinery in the morning, and tasks that are less physically or mentally demanding later in the day; and
- allowing flexible working, for example an earlier start time, a short lunch break or extra breaks for prayer.
Not all employers will be able to accommodate requests for flexibility in working hours or for annual leave, for example due to staffing issues. Employers are not obliged to agree to such requests from employees observing Ramadan, provided that they can objectively justify any refusal.
Can an employee take annual leave while on long-term sickness absence?
An employee who is on long-term sickness absence may wish to book a period of annual leave in order to receive full pay for that period, for example if they have exhausted all entitlement to sick pay, or is receiving only statutory sick pay.
The law does not prevent employees from taking annual leave while on sickness absence. It would usually be in an employer’s interests to agree to an employee’s request to take annual leave, to avoid them accruing significant amounts of leave while on sickness absence. If it refuses the request, the employer would have to allow the employee to take the accrued annual leave on their return to work (even if this means carrying it over to the next leave year), or pay the employee the accrued holiday pay on termination of employment.
Further, there is a risk that the refusal of a request for annual leave when the employee is already absent from work could be a breach of the implied term of mutual trust and confidence. The employer would not be able to argue that it had to refuse the request in order to maintain staffing levels.
When calculating their gender pay gap, how should employers deal with employees who join or leave part way through the pay period?
Employees who are employed on the snapshot date (5 April each year in the private and voluntary sectors and 31 March in the public sector) must be included in the employer’s gender pay gap calculations. Therefore, if an employee joins just before, or leaves just after, the snapshot date, they must still be included, even though they have not worked for the whole of the pay period.
The Equality Act 2010 (Gender Pay Gap Information) Regulations 2017 (SI 2017/172) set out how employers must calculate the hourly rate of pay for each employee, for the purposes of calculating the gender pay gap. Where an employee has not worked the whole pay period, the employer should calculate an hourly rate of pay based on the employee’s normal weekly hours. If the employee does not have normal weekly hours, and has not worked for long enough for the employer to be able to take an average number of hours over 12 weeks, the Regulations allow employers to use a number that “fairly represents the number of working hours in a week” for the employee. When calculating this, the employer should consider what could be expected under the employee’s contract and the hours worked by comparable employees.
However, having calculated the employee’s weekly hours, the Regulations require the employer to calculate the employee’s hourly pay based on what they have actually been paid for working only part of the pay period, rather than what they would normally have been paid over the period. This could lead to a significantly lower hourly rate of pay than what the employee would earn for working a complete pay period.
If an employer’s gender pay gap figures are distorted by a number of employees joining or leaving part way through a pay period, the employer could explain this in its narrative. Employers may decide that it would be reasonable to use an hourly rate of pay based on the employee’s normal weekly pay and normal weekly hours, but this is not the approach set out under the Regulations.
If an employee resigns after disciplinary proceedings have started should the employer continue the procedure?
If the employee resigns with immediate effect, their employment will terminate. There is little point in continuing a disciplinary procedure in respect of an employee who is no longer employed, as no disciplinary sanction can be imposed against a former employee. However, the disciplinary information collated should still be retained for a period of up to one year after the employee’s resignation, because it may be needed as evidence should the employee subsequently try to claim constructive dismissal or unlawful discrimination in relation to the conduct of the disciplinary proceedings.
If the employee resigns with notice, as a general rule the disciplinary procedure should be progressed to its conclusion during the employee’s notice period. The employee is still employed during this period and there is no reason why they should avoid a possible disciplinary sanction just because they have chosen to resign.
If the disciplinary procedure concludes with a recommendation for the employee’s summary dismissal on the grounds of gross misconduct, if this is effected during the employee’s notice period it will supersede the resignation and the employee will be deemed to have been dismissed for conduct reasons.
If a fixed-term position becomes permanent, should it be offered to the current post-holder, or should the position be advertised first?
There is no legal obligation on employers to offer the current post-holder the permanent position if a fixed-term role becomes permanent. However, employers are required, under reg.3 of the Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002 (SI 2002/2034), to give all fixed-term employees the same opportunity to secure permanent positions in the business as they give to permanent employees. Any difference between the availability of internal vacancies to fixed-term staff and their availability to permanent staff would need to be objectively justified.
Regulation 3 also provides that fixed-term employees have the right to be informed by the employer of available vacancies in the business. For these purposes, an employee is “informed” of a vacancy if it is contained in an advertisement that the employee has a reasonable opportunity of reading in the course of their employment, or the employee is given reasonable notification of the vacancy in some other way.
It is therefore advisable for employers to inform fixed-term employees of vacancies in the same way and at the same time as they inform permanent employees, whether this means displaying a vacancy notice in a place where all employees would be expected to see it, or emailing the vacancy list to all members of staff. In particular, where there is a permanent vacancy in the role that a fixed-term employee is currently occupying, it is good practice for the employer to inform them directly.
If there are no other fixed-term employees in the Company, the employer could offer the permanent post to the current post-holder without advertising it first (although it should be aware of the potential risk of discrimination claims where a position is not advertised externally).
Can unused statutory annual holiday be carried forward to the next holiday year?
Workers are entitled to 5.6 weeks’ statutory holiday each year. This is made up of an entitlement to four weeks under reg.13 of the Working Time Regulations 1998 (SI 1998/1833) and an additional 1.6 weeks under reg.13A. The four-week holiday entitlement under reg.13 (which derives from EU law) may not be carried forward into the next holiday year although see below for different rules that apply as a result of the coronavirus (COVID-19) crisis. The position with the additional 1.6 weeks’ holiday under reg.13A is different. Regulation 13A allows for a relevant agreement to provide for any of the additional holiday entitlement to be carried forward into the leave year immediately following the leave year in which it falls due.
However, the Regulations conflict with case law of the European Court of Justice (ECJ), which has held that a worker should be able to take their annual leave at another time if it coincides with a period of sickness. The Court of Appeal in NHS Leeds v Larner  IRLR 825 CA held that the Working Time Regulations 1998 could be interpreted, in accordance with the case law of the ECJ, to allow carry-over of the four weeks’ entitlement under reg.13 if a worker was unable or unwilling to take it because they were on sick leave.
In Plumb v Duncan Print Group Ltd  IRLR 711 EAT, the Employment Appeal Tribunal held that, where annual leave is carried over in these circumstances, it must be taken within 18 months of the end of the year in which it accrues.
Many employers also permit any holiday entitlement that has not been taken because of maternity leave to carry over into the following leave year. This solution carries less legal risk than informing an employee that their holiday entitlement has been lost.
The Government has amended reg.13 of the Working Time Regulations 1998 to allow workers to carry over up to four weeks’ annual leave into the next two holiday years, where it has not been reasonably practicable for them to take it as a result of the effects of coronavirus.