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Anderson Strathern on UK govt's 'living with Covid' guidance

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13 April 2022


Guest article by Musab Hemsi, Anderson Strathern


With the worst of Covid now officially behind us, at least for work-related purposes, the Government has now issued its new "Living with Covid” guidance, which came into force on 1 April. You could say with some justification that it was short notice - but that is OK because on closer review of the guidance there is in fact very little to prepare for. As a steer to businesses, it offers minimal direction. This is understandable, as the guidance must apply to a multitude of industries, workplaces and so on.

First, the guidance makes the point that the abolition of the requirement to give Covid express consideration in workplace risk assessments does not take away any of the employer’s obligations to continue to comply with its health & safety, employment and equality duties (in the latter two cases, presumably as they may be affected by the former).

From there, the Government moves to normalise Covid through a long list of symptoms common to it, colds, flu and other respiratory diseases but also to other quite unrelated conditions such as hangovers, migraines, food poisoning, being unfit, malaria and frankly just getting old ("unexplained tiredness, lack of energy”). The list is significantly expanded from the traditional trio of continuous cough, fever, loss of taste and smell and now also includes muscle pain, diarrhoea, headache, loss of appetite and "feeling sick”. Some medical practitioners say that this is long overdue recognition of all the things Covid can do to you. However, it is still an expansion for employers, since the published list now essentially includes something from pretty much every ailment known to man. The guidance notes that it will not usually be possible to tell whether you have Covid or something else from the symptoms alone and of course the free testing by which that could have been determined in the past is now largely withdrawn (or heading that way).

Therefore the guidance to individuals is that "if you have symptoms of a respiratory infection such as Covid and you have a high temperature or you do not feel well enough to go to work, you are advised to try to stay at home and avoid contact with other people” and then "try to work from home if you can. If you are unable to work from home you should talk to your employer about options available to you”. Given the rich panoply of symptoms now available to the discerning malingerer, justifying taking yourself home for five days while you work out whether your headache is Covid or just a headache has never been so easy.

As a result, the burden is shifted squarely to employers to keep up the anti-Covid fight, and in particular to decide whether to maintain restrictions on entry to their premises for those who are unvaccinated and/or untested. Both will be increasingly difficult to sustain in view of the guidance, which focuses instead on the traditional measures of ventilation, regular cleaning of high-touch surfaces, provision of sanitiser and hygiene advice, etc. The other issue is the employer’s rights (or is it obligation?) to send someone home if they have one or more of that long list of potentially relevant symptoms, and even if the employee himself feels able to work and/or cannot work from home. Nor does it deal with the employees’ sick pay rights in those cases.

Taking a reasonably hawkish view of those two questions:

1) If you know that the employee has symptoms which could well indicate that they are suffering from Covid, and even if it could equally be something less serious, are you complying with your Health & Safety at Work Act duty to take all reasonably practicable steps to maintain a safe system of work if you allow them in anyway? If they work in a sparsely-occupied well-ventilated area, perhaps yes, but otherwise probably not. Given the virulence of Omicron, it is unarguably foreseeable that allowing someone who may have it to breathe wantonly on other people may lead to their contracting it too. It is also clearly foreseeable, if no longer as much so as with the earlier Covid variants, that those other people may become properly ill or die as a result. Put mathematically, breach of duty + foreseeable risk of injury + causation + actual injury = liability. To my legal brain, I find difficulty in arriving at that conclusion and would prefer not to see that theory tested in practice.

So in my view, an employer not just can, but really should send home immediately an employee with any material case of the symptoms listed, as a minimum until it becomes clear that the real issue is something else (though not malaria – best not let them in either).

A firm stance on this will also help combat reluctance to return to the office among those staff concerned about the health risk of doing so. If they or their cohabitants are particularly vulnerable, the knowledge that basically no precautions are being taken to ensure that those present in the workplace are all Covid-free will only feed those anxieties.

2) If the employee is sent home on these grounds and cannot work there, will they be entitled to full salary (as it was not by his choice) or sick pay only? In many cases they will be back within a week and the two may be the same. Where they are not, however, I believe that it would strictly be sick pay only – though the employee may be physically able to work, they are practically unable to do so by reason of their own possible medical condition, the risk it may pose to others in the workplace and the duty of the employer to take reasonable steps to head off that risk. That said, there are employment relations arguments both ways on this – on the one hand, that the symptoms listed are so varied and transient that they represent an easy avenue for abuse, and on the other that if reporting them means you get packed off home on reduced pay (perhaps none until SSP kicks in on day 4), you are much less likely to report them in the first place and will probably prefer to pass your day posing an undeclared but potentially quite serious risk to your colleagues.

Having clear and decisive answers to these questions is huge. It will reduce the prevalence of absence in your business and minimise reluctant returners. Throw in questions around hybrid working and the need for certainty in your legal position increases.