Q What lessons are there from Wilko’s U-turn on allowing staff who test positive for Covid to continue to come to work?
A Last month the retailer Wilko controversially advised its employees that they should come into work if they tested positive for Covid but felt well. Unsurprisingly once this policy was made public it received widespread criticism, which has resulted in Wilko retracting and apologising for the policy.
On one hand, you might sympathise with the company as its policy was compliant with legal regulations. The government is only recommending that people should not attend the workplace if they have Covid-19, so there is no legal restriction preventing staff attending the workplace even if they test positive.
Employers need to think carefully, however, about balancing their duty of care to all employees and customers. In the absence of any mandatory government guidance it has been left up to individual employers to decide what is appropriate in an ever-changing pandemic.
How can other employers avoid making the same mistake as Wilko and navigate this difficult situation to prevent potential legal problems and avoid falling foul of the court of public opinion?
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Public health and the safety of employees should both be paramount when deciding what is a suitable policy after the government’s easing of Covid-19 restrictions.
From April 1 employers will no longer be required to explicitly refer to Covid in their health and safety risk assessment but employers are likely to maintain the assessments because Covid infection levels are still relatively high. The virus will continue to be a risk in the workplace and in the absence of the legal requirement employers retain their statutory duties to provide a safe place of work and a duty of care towards anyone who works or may be accessing or using their facilities.
This means that employees who have clinical vulnerabilities to Covid or are caring for those who have clinical vulnerabilities to Covid will still have to expressly consider Covid in any workplace risk assessments.
Where an employee tests positive but feels well and wants to come into work on the basis that they are not incapacitated, it poses a challenge for employers.
Even after updated risk assessments are in place employers are likely to insist on home working, particularly in circumstances where there is already a record of employees working from home successfully. Where home working is not feasible the best practice for employers is to continue to recommend that employees stay away from work and be paid sick pay as with any other illness.
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The rules on statutory sick pay (SSP) are due to revert to pre-Covid provisions from March 24, however, which means that those who test positive but feel well will no longer qualify for SSP. Employers will need to consider whether to pay enhanced sick pay to ensure that their employees follow any guidance to remain at home and avoid spreading the infection in the workplace.
In the longer term most employers are likely to treat symptomatic Covid in line with other respiratory illnesses, such as flu, by requiring employees to remain on sick leave and paying their standard statutory and contractual sick pay entitlements.
As we move to the long-term removal of government guidance relating to Covid, employers need to decide how to best manage the risks. For some time there will be uncertainty on what the right policies are and most employers are likely to act cautiously. With any mandatory policy that requires infectious but asymptomatic employees to attend the workplace, even when all restrictions and guidance has ended, employers should take into account the potential legal risks that this presents.
If an employer knows that they have clinically vulnerable staff or they are aware that their staff care for clinically vulnerable individuals, a viable disability discrimination claim or personal injury claim could be made.
As we learn to live with Covid, different practices and complexities will appear depending upon the risks posed in their workplace. As the Wilko situation highlights, there will not be a one-size-fits-all approach. Specific and individual risk assessments will continue to be required in the long term.
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Nathan Donaldson is an employment solicitor at Keystone Law
