Whilst we had all hoped that ‘lockdowns’ were a thing of the past, England and Scotland have today woken up to the joy of a third national lockdown period. This means that as of today, the entire UK population faces restrictions similar to those imposed in March 2020 with a notable return to shielding for those individuals most vulnerable to Covid-19. Thankfully, there are some notable differences to March 2020. More businesses are permitted to remain open (including physical TV and Film production which is naturally great news for our clients operating in that sector) and we fortunately appear to have some sort of light appearing at the end of tunnel by way of the vaccination rollout programmes.

As ever, we will continue to keep you updated on any notable Government guidance which may affect your businesses and our next edition of Worked Up will be with you all soon. In the meantime, we thought it would be helpful to immediately address a couple of the pressing issues some of you may be facing at this time:

Shielding

In his televised address to the nation yesterday (4 January 2021), the Prime Minister explained that ‘clinically extremely vulnerable individuals’ should begin shielding again and will shortly receive a letter about what that means for them. While the Government guidance on shielding has not yet been updated to reflect this latest lockdown, we expect that it will mirror the shielding guidance previously applicable in Tier 4 areas, which provided that clinically extremely vulnerable individuals should not attend work, even if they could not work from home. For a reminder of who falls within this category, please see the following NHS guidance.

In light of this, it will therefore be crucial for employers to ensure that those who have been told to shield do not attend the workplace. If such individuals are not able to work from home, they will be deemed to have an incapacity for Statutory Sick Pay purposes so they may be eligible to receive Statutory Sick Pay. Alternatively, they may be eligible to be furloughed under the extended Coronavirus Job Retention Scheme which is now set to remain in place until at least 30 April 2021.

The situation is potentially a little trickier for those individuals who are ‘clinically vulnerable’ (which the NHS defines as being at moderate risk) or those who simply feel anxious about attending the workplace at this time. Technically, if such individuals can’t work from home, employers would be within their rights to request attendance at the workplace but we would advise caution in these circumstances. At the very least, it’s important to always understand an employee’s concerns so that an appropriate analysis of the potential legal risks can be undertaken for each particular scenario.

Vaccinations

The Prime Minister announced that the Government aims to have vaccinated all individuals in the four highest priority categories (which includes all those who are clinically extremely vulnerable) by the middle of February 2021. The hope is that this should then enable the Government to lift many of the current restrictions (although there is expected to be some lag with that process given the vaccine apparently only becomes effective after a 3 week period).

This is, of course, great news and we are all no doubt waiting with baited breath for the vaccine to be rolled out as soon as possible. There are however some potential employment considerations with this. Perhaps most significantly, it cannot be assumed that all individuals will agree to be vaccinated. There are potentially many reasons why someone might refuse the vaccine and some of these reasons could constitute a protected characteristic under the Equality Act 2010. If businesses are considering implementing a policy that all staff must be vaccinated before they return to the workplace, they will need to consider their responses carefully if they are faced with employees who are not willing to comply. Conversations regarding the vaccine should be dealt with sensitively and employers should be wary of the employee relations risks of seeking to enforce blanket vaccinations. Assuming an employer intends to keep a record of those who have been vaccinated, there are also clearly considerations from a data protection and privacy perspective to contend with. We would expect that most staff privacy notices would need to be updated in this respect.

We’ll keep an eye on further developments over the coming days and will update you with any further useful information.