Employment legislation update: August 2021
In this article we look at changes expected to Test and Trace, how double vaccinated health care staff are to be treated in the event of being told to self-isolate, ongoing discussions on compulsory vaccinations for care workers and the Government response to consultation on sexual harassment in the workplace, which has recently been published.
New Test and Trace guidance issued
Updated guidance has been published in respect of what to do if someone you employ is required to self-isolate. This includes being contacted by NHS Test and Trace and the self-isolation rule.
It confirms that it is an offence to allow to an employee to attend work but sets out that where the self-isolation of close contacts would result in serious disruption to critical services, a limited number of named workers may be able to leave self-isolation under specific controls for the purpose of undertaking critical work only.
Employers will receive a letter from the government when this applies to them.
Where employers believe the self-isolation of certain key employees as contacts would result in serious disruption to critical services, they should contact the relevant government department to state:
- the number of people who it is proposed would leave self-isolation
- the roles those individuals need to perform
- the impact failure to do this would have and when this impact is likely to materialise (for example, is it already an issue or likely to materialise in the coming days)
Separate arrangements are in place for frontline health and care staff.
Double vaccinated NHS and social care staff can work despite instructions to self-isolate
On 19 July 2021, the Department of Health and Social Care made an announcement that frontline NHS and social care staff in England who have received two vaccinations and who have been told to self-isolate will be permitted to attend work in exceptional circumstances. This will include staff who have been contacted by NHS Test and Trace. When they are not at work, affected staff will remain under a legal duty to self-isolate but will have a "reasonable excuse" to leave home to attend work under the Health Protection (Coronavirus, Restrictions) (Self-Isolation) (England) Regulations 2020.
Staff must first have a negative PCR test, and take daily negative lateral flow tests for a minimum of seven days and up to a total of 10 days or completion of the identified self-isolation period. The exception will apply only where the absence of staff may lead to a significant risk of harm, in view of the potential workforce-related pressures on NHS and social care services; the DHSC has stated that decision-makers will need to carefully consider the comparative risk of onward transmission of COVID-19 compared to the delivery of critical services.
Compulsory vaccinations for care workers
The Health and Social Care Act 2008 (Regulated Activities) (Amendment) (Coronavirus) Regulations 2021, which will make it mandatory for a person working or providing professional services in a care home to have the Covid-19 vaccine, have been approved by both Houses of Parliament.
The Regulations will amend the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 to provide that registered persons in respect of the regulated activity of providing residential accommodation together with nursing or personal care in a care home must ensure that any non-resident over the age of 18 does not enter the residential accommodation unless that person has provided evidence that they have been vaccinated with the complete course of an authorised vaccine against coronavirus or the person has provided evidence that for clinical reasons he or she cannot be vaccinated. The Regulations provide that unvaccinated persons may still enter the premises in certain limited circumstances, including to provide emergency assistance; to visit a resident service user as a friend or relative; to visit a service user who is dying; or where is it is reasonably necessary to provide urgent maintenance or provide comfort or support to a service user in relation to a service user’s bereavement following the death of a friend or relative.
The Regulations will come into force after 16 weeks. According to the Government’s response this is a ‘grace period’ to mitigate the risk of an immediate effect on capacity in care homes by giving the vast majority of workers the opportunity to receive both vaccination doses.
Government publishes response to the consultation on sexual harassment in the workplace
On 21 July 2021, the government published its response to the consultation on sexual harassment in the workplace.
- Introduce a duty for employers to prevent sexual harassment in the workplace "as soon as" parliamentary time allows. A defence will be available if the employer has taken "all reasonable steps" to prevent the harassment taking place.
- Discuss scope for further enforcement action in sexual harassment cases by the Equality and Human Rights Commission (EHRC). It will also ask the EHRC to produce a statutory code of practice on sexual harassment in the workplace which will be complemented by accessible, practical guidance for employers.
- Introduce a duty for employers to prevent third-party harassment in the workplace when parliamentary time allows. This duty will also have a defence that the employer has taken "all reasonable steps" to prevent the harassment.
- Look closely at extending the time limit for bringing claims under the Equality Act 2010, bearing in mind the pressures on the employment tribunal service. Any extension would apply to all claims under the Equality Act 2010, not just harassment claims. A new time limit of six months is likely to be the most appropriate course of action.
The response does not set out any detail of the proposed new duty on employers to prevent sexual harassment in the workplace, nor of the ‘explicit protections from third-party harassment’. These changes will be introduced when parliamentary time allows.
The consultation also covered the possibility of extending protection to volunteers and interns. The government considered that interns should already benefit from protection and it will not extend protection to "pure" volunteers as this has a risk of unintended adverse consequences.
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