Laura Farnsworth and David Lyons of Lewis Silkin’s Employment team joined the British Retail Consortium (BRC) for its most recent community meeting, and addressed the various employment law issues retailers are facing when planning a safe return to work for their staff during the evolving Covid-19 situation.

This was an interactive discussion with BRC’s HR, Operations and Legal Associates about how best to navigate a safe return to work given the switch of responsibility to employers since the mandatory rules were replaced by government guidance in July of this year.

In particular, the session covered topical issues including:

  • The up-to-date state of play regarding guidance and practice about returning to work safely including the marked change in emphasis compared to the previous guidance e.g. “stop the spread” becoming “reduce the risk”.
  • Vaccine status issues including whether employers can make vaccinations compulsory and/or request proof of vaccination status.  Noting that this has not yet been tested in UK law, the discussion covered the possibility of discrimination issues in certain (limited) circumstances.  The session also covered issues around disciplining/dismissing employees who refuse vaccination and alternatives to a mandatory requirement including ways of encouraging / incentivising vaccine uptake.
  • The latest changes to self-isolation rules which came into effect on 16 August.  These changes mean that fully vaccinated individuals (or under 18s or those who participated in vaccine trials or who are not able to take the vaccine for medical reasons) no longer need to self-isolate following notification of close contact with someone who has since tested positive for Covid-19), provided they have no symptoms / have not tested positive themselves. The discussion also touched on the expectation on employers to support test and trace.
  • What duties employers have in respect of other workers if a colleague has, or is suspected to have, Covid-19 including when an employer may be liable if an employee catches the virus at work.  Employers that ensure that they and their workforce comply with the government guidance and take any additional precautions required in accordance with their risk assessments will minimise the risk of such claims.
  • Other challenges retailers grapple with, from the high-level to the detailed, including:
  • what approach to adopt in respect of mask-wearing.  Many retail employers are still requiring employees and/or customers to wear masks as a result of their risk assessment, even though they no longer have the backing of a legal requirement to do so; and
  • sick pay (including questions from Associates on the practical challenges of applying statutory sick pay (SSP) entitlement where someone’s Covid diagnosis is still uncertain, given the different rules on when entitlement to SSP begins in Covid and non-Covid cases).

Another challenge in retail businesses is that most, if not all, such businesses are likely to have staff working in quite different environments – head office, store staff and possibly distribution /warehouses (among others). Each of these environments will have their own considerations and issues.  For example, it might be possible for a head office worker to work from home but not an employee who works in-store.  There are likely to be very different health and safety considerations in a store environment (which is customer-facing) compared to a warehouse (which is not).

While there are differences between the rules and guidance that apply across the four devolved nations, the session mainly focused on the rules in England when talking about government Covid guidance (although acknowledged that the legal position relating to data privacy in respect of testing and vaccinations is the same across the UK.) 

For more detail information on many of the topics covered during the community meeting, please visit Lewis Silkin’s Covid-19 Hub, which has a range of resources that are kept up to date.  Particularly relevant FAQ guides include: