Boris Johnson’s eagerly awaited announcement on 10 May regarding plans to gradually ease the current lockdown provided some indications of how and when businesses might be able to allow employees back onto their premises. The Prime Minister said that those who “can’t work from home” will be “actively encouraged to return to work” from 13 May and that the government is drafting guidance for employers to allow this to happen safely. All those who can continue to work from home are expected to do so.
This development, coupled with the fact that the Coronavirus Job Retention Scheme has been extended until the end of October with the expectation that companies will “start sharing” the cost from August, means that employers are beginning planning for the staged return of their workforce over the coming weeks and months.
As an employer, how you manage this process will depend on the individual circumstances of your business. However, generally, plans will be guided by the temporary closure arrangements you have in place, any modifications you may have to implement regarding health and safety measures, and any changes necessary to work patterns in order to ensure social distancing.
The Prime Minister also emphasised that the restrictions may need to be tightened again, depending on how the gradual opening-up of the economy impacts on the infection rate. Equally, therefore, a degree of flexibility and ability of employers to respond to new guidance will be crucial.
Ensuring health and safety
Fundamentally, the guiding principles will be the need to meet your duty of care to your employees and observing statutory health and safety guidelines. Given the nature of COVID-19, you are unlikely to be able to rely entirely on your existing health and safety policies. For that reason, it will be important to conduct a detailed risk assessment which informs an action plan to minimise the risk to employees or others visiting your premises. This should include reviewing hygiene systems and cleaning arrangements to provide the necessary protection and identifying those who have a high level of contact with others and are therefore at a greater risk of infection. Specific COVID-19 Secure Guidelines is being published by the government depending on the type of workplace and this should be carefully reviewed prior to encouraging your staff to return.
Government, ACAS and WHO guidance on maintaining social distancing should also be considered. Additionally, the recent BEIS Guidance provides sector-specific advice on the subject. Where possible, liaise with your health and safety officers to establish best practice in this regard. Where distancing guidelines cannot be met, employers must consider all reasonable options before allowing employees to return to the workplace.
Conducting regular temperature checks on employees is another potential measure being considered by some businesses. Individual consent may be required if you decide to pursue this and the appropriate hygiene safeguards should be put in place. However, the government does not currently recommend the conducting of temperature checks in the workplace.
You should communicate regularly with your staff about the practical measures you are implementing. This will help to demonstrate that you are prioritising their well-being. Also make clear any procedures that employees are expected to follow if they become ill, both in the workplace and at home. Employees must not come into work if they feel unwell or another member of their household is self-isolating.
Further measures which could prove effective in ensuring social distancing is observed and reducing risk include:
- Remote meeting facilities and videoconferencing to minimise the need for staff to travel to work.
- Minimising the mixing of employees, both in offices and communal areas, and staggering working hours.
- Avoiding ‘hot-desking’.
- Looking at options for transport to work, such as car parking, bike racks etc.
- Providing additional PPE where necessary, such as gloves, masks or anti-viral hand gel.
- Providing training to staff on the new measures.
The provisions of the Employment Rights Act 1996 protect employees from being disciplined or dismissed for raising health and safety concerns in the workplace, or for taking certain actions in relation to health and safety concerns in the workplace. It is therefore essential that you listen to any issues that are raised by your employees and take steps to alleviate these concerns and reduce any risks as far as possible.
Changes to the Furlough Scheme
As well as the logistics of a staged return to the workplace, the proposed changes to the Government’s furloughing scheme on 30 June 2020 is another crucial issue for employers to address. As at the time of writing, more than 7.5 million workers and almost 1 million businesses have taken advantage of the scheme.
The impact on revenue caused by the lockdown has significant implications for the sustainability of businesses if the scheme isn’t extended. In most cases, employers will be keen to explore all options available to prevent the need to make redundancies.
Some employers have taken full advantage of the Coronavirus Job Retention Scheme and have furloughed their entire workforce. Others have opted to furlough some employees and other businesses have continued to trade as normal but with all employees now working from home.
Even if your written furlough agreement contains a clause allowing for an immediate recall to work, employees should still receive a reasonable notice period before they are required to return to the workplace. Such notice will allow employees to make any necessary arrangements, such as childcare, before returning and allow your payroll staff to make arrangements for the employee to receive full pay once again.
Depending on the situation of your business and the latest Government guidance, it may be preferable to keep some employees working from home for an extended period. This must be backed by a clear rationale as to why certain roles must be performed specifically in the workplace.
This current situation may allow employers the opportunity to re-evaluate working models and consider introducing more flexible working practices to meet changing expectations.
Alternatively, you may wish to agree reduced pay or working hours on a temporary basis with some or all staff. As a reduction in pay and/or working hours will be a temporary contractual change, a written agreement must be made with the employees concerned and the reasons for the change must be clearly communicated to employees, possible against the backdrop of the need for redundancies if changes can’t be agreed.
Redundancy
Sadly, some businesses may be unable to continue trading or require significantly fewer staff beyond the expiry of the furlough scheme, at which point a redundancy process may be required.
In this situation, employers should carefully consider the projected number of redundancies. If 20 or more redundancies are proposed at one establishment within 90 days, onerous collective consultation obligations will be necessary in addition to prescribed minimum consultation periods. The Secretary of State (via a HR1 form) must also be notified of the proposed redundancies. If fewer than 20 redundancies are being proposed, a fair procedure in relation to each employee at risk of redundancy is still required (assuming that they have at least 2 years’ continuous service and have therefore acquired unfair dismissal rights).
If collective consultation is required, then representatives must be elected and it’s likely that representatives can still be elected and consulted with whilst they are furloughed.
Depending on the timing of any redundancy dismissals, there may be scope for using the furlough scheme to offset some of the notice costs of those employees who are dismissed for redundancy.
Other workplace issues
Some of the related tricky issues that we have been advising on recently are:
How to select which employees are asked to return to the workplace? This can present a number of difficulties, such as, ensuring that you have objective selection criteria to avoid potential discrimination issues. For example, asking those without childcare responsibilities to return is likely to put you at risk of indirect discrimination claims.
How to deal with employees who refuse to return to the workplace? This will depend on the reason for the refusal: health and safety concerns, childcare issues, fear of returning, shielding on medical grounds, vulnerable group, disability etc. Each case must be carefully considered on its own facts and my advice is to avoid making inflexible legal decisions but to engage with your staff on these issues before taking disciplinary steps or dismissing staff, which may give rise to claims and will be damaging to employee relations.
It is likely that, when staff start returning to work, there is a spike in formal flexible working requests and these will need to be considered in line with the existing legal framework and may only be denied on one of the permitted grounds. If any flexible working requests are agreed, then it would be sensible during these uncertain times to agree a trial period and make these new working arrangements subject to formal review after an agreed period of time.
The COVID pandemic is also having a very damaging effect on mental health and wellbeing. Employees may be fearful of a return to work, they are likely to feel uncertain about their job security and they may be dealing with bereavement. Businesses would be well-advised to offer their staff support and flexibility where possible.
Conclusion
The proposed re-opening of workplaces and changes to the furlough scheme will impact on businesses in different ways and none of us know if and when the economy will bounce-back. While the furlough scheme remains in place then this gives businesses the breathing space to carefully consider their future options and the shape of their business going forward.
It is vital that any measures that employers implement are communicated clearly to employees, always with health and wellbeing as the primary consideration.
Should you wish to discuss any of the issues raised in this article please do not hesitate to contact a member of the team, we will always be happy to talk to you.
