I know we are all sick of Covid news and it is all that we seem to hear about these days. Also, the situation seems to be changing quicker than ever so information is often out of date as soon as it is written. However as we enter Lockdown 3 on the Isle of Man, I thought it would be useful to share some of the key employment issues and UK Tribunal decisions that indicates (but does not guarantee!) the direction of travel for Covid related employment issues going forward. 

Masks 

There is no straight answer to this question and will largely depend upon the situation, the policies and procedure in place and of course the particular factors of each workplace (e.g. a care setting would be very different to an outdoor working setting) 

However, in the first ruling of its kind, an employee made a claim to the Tribunal for unfair dismissal after being dismissed for gross misconduct for not wearing a facemask inside his vehicle on client premises. It was determined that the employer DID lawfully dismiss the employee for not wearing a facemask on client premises. This was due to the fact the company had correctly followed procedure, the impact the employees actions had on the client relationship, the fact the client had banned the employee from their sites for failure to follow their processes and the employees lack of acceptance that his actions were wrong. 

The case in question is Kubilius v Kent Foods Ltd. 

Key points for employers; 

  • If you want to enforce mask wearing;
  • Ensure that it is a reasonable request in the circumstances  
  • Ensure that any such requirements are captured in a policy detailing the processes to follow and any repercussions for not following the procedure 
  • Be mindful that some employees may have legitimate health reasons for not wearing a mask so take any such issues seriously and consider adjustments required 
  • Read this article for more information  
  • Can employers make masks mandatory? (peoplemanagement.co.uk) 

Self-Isolation  

These are the two questions I am asked most in this regard; 

  1. Do you have to pay employees who are made to self isolate? 

In short – no. Employees can be asked to use holiday (but they can choose not to) or you should follow your usual sick pay procedures and policies. 

That said, where an employee is well enough to work but are in self isolation and can safely work from home (which for many office based jobs would be hard to dispute on Lockdown 3) then in most cases it would seem reasonable for the employer to allow them to do so. It also seems to be the right thing to do if the employee is helping prevent the spread by following the relevant rules.

        2. Do you have to pay employees who need to self isolate on return from non essential travel? 

No – should an employee choose to go off island and need to self isolate at home upon their return then unless the contract of employment or policies state otherwise, they are not entitled to change their place of work for the isolation period.  

Of course, this is something that you can choose to offer your employees and employers may wish to consider this. However, employers should be sure that their employees understand how you will treat such requests, have a clearly documented policy around how the different types of self isolation will be treated and communicate decisions with their employees. 

The Vaccine 

Can you force employees to have the vaccine or not allow employee to work if they have not taken the vaccine? 

In short, there are no statutory provisions that can enforce people to take the vaccine and so you would be hard pushed to enforce it in the workplace as the employee could claim protection under a few Protected Characteristics such as religion if the object for religious reasons, if they are an anti vaxxer and they can argue it is a reasonably held philosophical believe and if they have a disability so do not want to vaccinate for any reason associated with that.  

Any such attempts could be fraught with risks so avoid such action is probably the simplest advice. 

Will we ever go back to the office full time? 

While most (but not all..!) employment contracts will explicitly state the employee’s place of work and usually contain a provision for the employer to amend the place of work (within reason..), whether all employees will fully return to the office is yet to be seen. Certainly, there is an increased demand from employees for employers to consider more permanent home working arrangements with the preference being that this is mixed in with some in office working.  

Many workplaces who hadn’t previously considered home working as an option have been forced into it due to Covid and many of the perceived obstacles quickly disappeared.  

There is no doubt that remote working comes with its challenges, but it is likely that this is becoming more of an expectation from employees and so employers will need to give their approach to this serious consideration if they wish to attract and retain talent and have a more fulfilled and productive workforce.  

Summary 

As with everything to do with Covid, there are many unknowns and no right answer to cover all situations, therefore it is important for employers to; 

  1. POLICIES & PROCESSES – Create, circulate and follow policies and processes – letting your employees know where they stand is key 
  2. ACT REASONABLY – a key test in employment tribunal case is whether the employer acting reasonably and this is always my key advice to clients when issues arise – take a step back (emotions away) from the situation and think ‘would an independent, third party looking back at the situation consider what you did to be reasonable in the circumstances’ 
  3. COMMUNICATE – keep employees up to date, give clear and consistent communication and where issues arise, communicate and discuss with your employees – don’t let issues fester 

Again, because this is such a new area, there are many unknowns. This article provides a high level overview of what can often be very complex and emotive situations so always seek advice!