Be Aware - March 2022
The government has set out its plans on ‘Living with Covid-19’ including the removal of the legal requirement for individuals to self-isolate if they test positive for Covid-19 from 24 February 2022 and the removal of free PCR and lateral flow testing (subject to some limited exceptions) from 1 April 2022. Under these plans the government has also indicated that that the statutory sick pay regulations will be amended to remove the Covid-19 provisions from 24 March 2022 so that there will be a return to normal SSP rules which means that employers will revert to paying SSP from the fourth qualifying day that their employee is off work, regardless of the reason for their sickness absence.
It will no longer be criminal offence for an employee to attend the workplace whilst positive with Covid-19. Furthermore, the likelihood of employees testing before attending work will reduce substantially once the provision of free testing kits ends. It is also likely that there will be a wider societal shift around attitudes to Covid-19 with individuals likely to view it in a similar way as flu or the common cold. The lack of legal rules and changing societal views is likely to result in employees attending work whilst either positive for Covid-19 or showing symptoms. It is possible that only employees with serious/debilitating Covid-19 symptoms will take time off work in the same way as flu.
This clearly raises difficult issues for employers. Many employers are seeing more employees return to the office and may want to avoid employees refusing to attend the office because they feel it is unsafe, particularly following the change to self-isolation rules.
Employers need to strike a balance between living with Covid-19 whilst at the same time ensuring the safety of employees.
Employers should continue to follow the government’s working safely guidance:
as this will help reduce the risk of claims in respect of automatic unfair dismissal for health and safety where an employee asserts they have left work in the face of serious and imminent danger.
The end of the legal obligation to self-isolate does not prevent employers from having their own more restrictive rules on workplace attendance if they choose to do so. For example, an employer could stipulate that employees who test positive for Covid-19 or are displaying Covid-19 symptoms are required to work from home for a specified period of time (if it is practical for the employee to carry out their duties from home) or alternatively require that these employees wear face-coverings in the workplace.
Employer may also consider taking the following steps:
- purchasing some home-testing kits for employees who are displaying Covid-19 symptoms and wish to take a test
- continue to encourage employees to be vaccinated; and
- keep in place rules on face-coverings, hand washing and other safety measures, which do not harm but might further reassure employees that the workplace is safe.
If the government says it is lawful to attend the workplace with Covid-19 or with symptoms then it becomes difficult for an employee to argue that it is wrong for their employer to allow it. If an employer decides to prevent an employee from attending work who has Covid-19 symptoms or tests positive then the employer would be required to pay the employee full pay if that employee is ready, able and willing to work.
In summary , the government decision to scrap all rules on Covid-19 does not mean that Covid-19 has disappeared forever. It is sensible for employers to remain cautious, have a clear policy in place and to be prepared to be adaptable to further change. There is no doubt that the guidelines, rules and public opinion will continue to move at a pace.
Note: Government rules around Covid-19 in Wales and Scotland are currently different to England. At the moment the Welsh government is standing firm on Covid self-isolation rules and Scottish government continues to advise those who have tested positive to self-isolate and has said that it will publish a detailed transition plan in March 2022.
“I have an aging technician (Bob) who has started to make quite a few mistakes. He seems to be forgetting things and is getting a bit long in the tooth. As I now don’t have enough work due to Coronavirus and was thinking of making some changes, I wondered whether I should just suggest it might be time for him to retire? I wouldn’t mind offering him a small sum of money to go so I can get someone younger and quicker on the job. He has been a good employee but I think enough is enough?”
Prior to the Age Discrimination Legislation being introduced in 2006, the above scenario provided Bob with over 65, he simply couldn’t claim unfair dismissal. The law these days is very different and it would be age discrimination to dismiss him simply because he is getting too old for the job, or to imply or accuse him of the same. Employers need to be particularly careful about making assumptions based on peoples age even if factually it is correct that people as they go into their 70s and 80s may slow down and be less capable (in some cases, not all) making decisions on that basis is likely to land the employer in the tribunal.
Whilst there is no national retirement age any more, employers can set a default retirement age if the same can be objectively justified. This is a very high test in law and very risky so we would advise that most employers steer clear of this.
In the above situation, Bob has to be treated like any other employee with capability problems. If he is not performing then clearly that can be a matter for disciplinary/capability procedures which is likely to involve investigation and medical evidence. If it transpires after investigation and a reasonable period of procedure including potentially warnings and any adjustments that Bob really isn’t capable of performing the job any more, then the employer, provided he’s laid a solid paper trail to that effect, may be able to fairly dismiss Bob or to select him for redundancy on those grounds alone.
In the motor industry of course, there are certain jobs which require a high degree of technical skill and care and often driving abilities and therefore an employer faced with the situation of employee making increasing errors and encountering capability problems it may be wise to monitor the situation more closely and if there are doubts as to health/eyesight etc., then the appropriate medical evidence should be sought to justify potential dismissal if failing health is resulting in the capability to perform the role.
“I run a small body repair MOT workshop. I sometimes have to leave my technician working on his own when I am out of the business, is that okay? Is there any law in this area?”
Employers who have employees who are likely to be working on their own need to carry out a risk assessment. The Health and Safety at Work Act 1974 ensures a duty of care on employers to ensure the health, safety and welfare of their employees. The Management of Health and Safety at Work Regulations also require employers to carry out a risk assessment.
In the above situation a bodyshop or MOT testing area is likely to be a relatively hazardous environment. The employer is required to consider the risks posed to a lone worker in such an environment. Where a risk assessment shows it is not possible for the work to be done safely by a lone worker, arrangements for providing help or backup should be put in place. A risk assessment might include that it is not safe for one person to work alone, examples include working in confined space or work involving electrics or other dangers where two people might be required to be present.
Precautions should be planned for foreseeable emergencies e.g. fire, equipment failure, illness and accidents etc.
The following questions should be asked by the employer:
- Does the workplace present a special risk to the lone worker?
- Is there a safe way in and a way out for one person? Can any temporary access equipment which is necessary, such as portable ladders or trestles, be safely handled by one person?
- Can all the plant, substances and goods involved in the work be safely handled by one person? Consider whether the work involves lifting objects too large for one person or whether more than one person is needed to operate essential controls for the safe running of equipment.
- Is there a risk of violence?
- Are women especially at risk if they work alone?
- Are young workers especially at risk if they work alone?
- Is the person medically fit and suitable to work alone?
- What happens if the person becomes ill, has an accident or there is an emergency?
Motor traders are regularly asked by owners to fit parts they have not supplied. Should a motor trader fit parts they have not supplied and if so what are the legal ramifications?
When fitting any parts, the Consumer Rights Act 2015 require these parts to be fitted
- with reasonable care and skill
- in a reasonable time if no specific time agreed
- for a reasonable charge if no price was set in advance.
Where the garage also supplies the parts they are under an additional duty as the Consumer Rights Act 2015 will hold the motor trader liable for the parts as well as the fitting. Any parts must be,
- of satisfactory quality
- fit for purpose
- match any description given
Should a repair fail then the motor trader will be liable to repair or replace the parts concerned if the parts are faulty or if they have been fitted incorrectly.
The difficulty with owner supplied parts is establishing the reason for the failure. If the failure cannot be easily diagnosed there is a risk of liability by default as by definition the garage will be intimately linked to the failure.
Where a part is supplied by the owner the garage is not liable for the part; only the fitting and any diagnosis carried out. Should the part prove to be incorrect, or faulty then this is an issue for the owner themselves.
The garage will remain under a duty to diagnose any fault and fit any parts correctly. This will include exercising a reasonable level of care and skill. If the part is obviously wrong or inappropriate, then this will need to be brought to the owner’s attention and specific instructions sought.
Conversely, where a garage supplies and fits any parts the likelihood of the garage being liable for any failure increases as the garage is also liable for the part itself. The difference s that a parts failure is usually covered by a supplier’s warranty allowing the garage to seek a contribution or indemnity from their supplier. The quality of parts as well as the ease of dealing with any issues can be a major consideration for most motor trader when choosing a parts supplier.
Don’t forget, this advice is general in nature and will need to be tailored to any one particular situation. As an RMI member you have access to the RMI Legal advice line, as well as a number of industry experts for your assistance. Should you find yourself in the situation above, contact us on 01788 225 908 at any stage for advice and assistance as appropriate.