We consider the implications of employers imposing restrictions in the workplace when there is no longer any legal requirement.

Background

Due to the disruption of the pandemic, employers are considering a variety of ways to minimise the risk of employees contracting Covid-19 to protect their business. Since 19 July, all restrictions have been dropped by the Government making it more difficult for employers to unilaterally decide on exactly what to implement.

People are no longer legally required to wear face masks on public transport or in indoor settings. However, a survey by the Office for National Statistics of 3,130 people between the 11 and 15 of August, showed that approximately 9 in 10 people were still wearing a face covering at least some of the time. This high percentage echoes the Government’s advice that it ‘expects and recommends’ members of the public to continue to wear face coverings in crowded and enclosed spaces when coming into contact with people you do not normally meet. Employers are now debating the risks and merits of mandating face coverings.

Workplace testing is also not currently required by the Government and testing is not included in its guidance on working safely during the coronavirus. However, the specific guidance for events and attractions, and hotels and guest accommodation encourages employers to ask employees to get tested regularly.

We consider the legal implications below.

Face coverings

Although there is no legal requirement for employees to wear face coverings, an employer seeking to institute this could seek to rely on the implied duty of employees to follow their lawful and reasonable instructions. If an employer decides to enact such a policy, this is likely to qualify as a provision, criterion, or practice (PCP) pursuant to section 19 of the Equality Act 2010 (EqA) and as such could offer the employee a defence to their objections under discrimination law.

‘Disability’ is defined in the EqA as a long term physical or mental impairment that has a substantial and long-term negative effect on the individual’s ability to undertake normal daily activities. If an employee’s medical condition qualifies as a ‘disability’ within this definition and the PCP (being asked to wear a face covering) puts that employee at a disadvantage, then the employer runs the risk of breaching discrimination law.

Employers might be able avoid this if the PCP is a ‘proportionate means of achieving a legitimate aim’. The general aim of protecting the workforce from Covid-19 will likely be considered legitimate but it is more difficult to say whether mandatory face coverings would be considered proportionate within this context and it may depend on the type of work the employee performs. In guidance published by the Government, employers are instructed to complete risk assessments and take steps to manage the risks of Covid-19. Whilst the guidance says employers can ‘encourage’ the use of face coverings, it stops short of making them a requirement. Moreover, there is an explicit reference to those who may not be able to do so for health reasons.

If there are other methods that can be deployed to minimise Covid-19 risks (e.g., good ventilation, social distancing, hand sanitiser), then softer approaches, such as creating a voluntary face covering policy and signage that encourages masks, are preferable.

Testing

Given that individuals are able to obtain lateral flow tests (LFTs) freely, employers may choose to allow employees to test themselves at home on their own schedule. However, organising testing in the workplace gives employers control and oversight over the process. Since the removal of restrictions on 19 July, employers wishing to enforce testing are likely to have their arguments bolstered as fewer alternative measures are legally enforced (e.g., face coverings and social distancing).

Mandatory testing in the workplace presents risks for employers. An employee who refuses to comply with a request is likely in breach of the implied duty to follow lawful and reasonable instructions of their employer. If that employee has over two years continuous service this could result in an unfair dismissal claim. The Employment Tribunal (ET) would assess the employer’s decision to dismiss and whilst there have so far been very few cases concerning workplace measures, the ET is likely to support disciplinary action if employees’ refusal to comply presents a perceived or actual risk to the health and safety of the workforce and this rationale has been clearly explained.

Whilst discrimination law is also a risk for employers when implementing workplace testing, the risk is likely to be lower than for face coverings as employees with protected characteristics are generally less likely to be put at a disadvantage by workplace testing. If an employee objects, their employer would have a good prospect of showing that testing was a ‘proportionate means of achieving a legitimate aim’. To show proportionality it is not necessary to establish that there was no alternative course of action. Rather, it must be demonstrated that the measures were reasonably necessary to achieve the aim. Once weekly or bi-weekly workplace testing not only has the aim of minimising risk but also, crucially, of identifying anyone who has the virus. It is this latter element that could make testing proportionate, although this is yet to be tested by the ET and would therefore need to be considered on a case-by-case basis.

Conclusion

Every workplace is different meaning it is unlikely there will be a blanket application of the law. Consequently, how an employer chooses to minimise the Covid-19 risk will vary and the question of whether mandatory face coverings or workplace testing are legal will need to be analysed in relation to the specific organisation. Employers should consult with employees, listen to their concerns, and discuss the rationale for implementing such policies. Not only will this reduce the threat of claims, but it is good HR practice and common sense.

Acas endorses this approach, recommending that consultation happens with the staff and/or a recognised union. The discussion should include, among other things, how the testing would be done, how staff would get their results, the process to follow if someone tests positive, and how the data will be managed. If the employer opts to enforce testing, a written policy should be put in place.

Legal advice should be sought before creating a mandatory face covering or testing policy.

We are now offering clients an Employment Advice Helpline. We are here to answer any queries or concerns you might have regarding the impact of Covid-19, what legal options are available to you, and what steps you can take to protect your business, your staff, or your job. Contact the team here.