With 336,893 new COVID-19 cases reported in the seven days ending on 8 December 2021 (the highest since the week to 16 January 2021) and the concern around the transmissibility of the Omicron variant, it is little surprise that the government has now announced the implementation of “Plan B”, writes Mark Kaye.

What is “Plan B”? 

As part of its COVID-19 Response: Autumn and Winter Plan, the government clarified that if the data suggests the NHS is likely to come under unsustainable pressure, it prepared a “Plan B” for England.   

The government’s “Plan B” prioritises measures which can help control transmission of the virus while seeking to minimise economic and social impacts. This includes: 

  • Communicating clearly and urgently to the public that the level of risk has increased, and with it the need to behave more cautiously. 
  • Introducing mandatory vaccine-only COVID-status certification in certain settings. 
  • Legally mandating face coverings in certain settings (although this is now already a legal requirement on public transport and in retail settings).  
  • Possibly asking people once again to work from home if they can, for a limited period.  Although the government recognises this causes more disruption and has greater immediate costs to the economy and some businesses than the other Plan B interventions. 

What new restrictions are coming into force?  

  • With effect from 10 December 2021 (Monday), masks must be worn at most public indoor venues (including cinemas and theatres), unless people are exercising, eating, drinking or singing.  
  • With effect from 13 December 2021, people should work from home if they are able to do so.  
  • With effect from 15 December 2021, COVID status certification is required for nightclubs or other large crowded spaces, including all unseated indoor venues with a capacity of 500 or more; all unseated outdoor venues of 4,000 or more; or any venue, seated or not, which contain 10,000 or more.  It has been indicated that negative lateral flow tests may also suffice.  

 

Implications for employers 

In recent months, many employers have been working hard to bring their people back into the office.  There has also been a huge focus on rolling out hybrid working arrangements and accompanying policies. These measures will now need to be reconsidered. 

Employers who need their staff to come into the office without good reason may well face pushback from their workforce and risk claims being brought in the employment tribunal. 

Blanket policies should be avoided – instead the circumstances that apply to each employee should be properly considered. 

 

Hospitality sector

Employers operating in the cinema and theatre sector are likely to be impacted by the mask mandate and may need to consider whether reduced audiences will mean that staff rotas need to be altered and, in a worst case scenario, whether a reduction in headcount is necessary.  

The hospitality and leisure sector will need to be mindful that the introduction of COVID-status certification may well apply to their businesses and, again, a likely reduction in customers may mean that changes may need to be taken in relation to the workforce.   

 

Conclusion

If the Plan B restrictions lead to redundancies, employers will need to be mindful of their obligations to carry out a proper process (particularly where employees have unfair dismissal rights).  In addition, where mass redundancies are proposed (i.e. a proposal to dismissal 20 or more employees at one establishment within a 90 day period), employers will be saddled with additional collective consultation obligations. 

 

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Mark Kaye is an employment lawyer at Bryan Cave Leighton Paisner LLP