As the UK Government has published the Plan to Rebuild – the UK Government’s COVID-19 recovery strategy to transition England from lockdown, one of the key areas is how to get people back to the workplace safely. The Government has also published guidance covering eight workplace settings which are allowed to be open, intended to make workplaces as safe as possible and to give people confidence to go back to work during the coronavirus pandemic. The guidance was developed in consultation with businesses, unions and industry leaders.
The guidance sets out five key points which should be implemented by employers as soon as it is practical:
- Work from home if possible: the advice still stands that all reasonable steps should be taken by employers to help people to work from home. However, if the employee cannot work from home and the workplace has not been told to close then the employee should go to work.
- Carry out a COVID-19 risk assessment: current health and safety legislation and equality legislation requires employers to carry out risk assessments. Employers should therefore carry out a COVID-19 risk assessment in consultation with workers or trade unions. The Government expects that all businesses with over 50 employees should publish the results of the risk assessments on their website.
- Social distancing: one of the key areas to protect employees is to ensure that they comply with social distancing in the workplace. This means that employers may need to reconfigure the workplace to ensure that a two metre distance is maintained between employees. This may require staggering arrival hours and also the use of lifts and stair cases.
- Manage the transmission risk where people cannot be 2 metres apart: protective screening and equipment should be used where it is not possible to maintain a two metre gap between the employees. Other considerations may be changing workplace shift patterns or dividing the workforce into teams, or using back to back or side to side working.
- Reinforcing cleaning processes in the workplace. This can include additional cleaning regimes as well as providing handwashing facilities or hand sanitisers at entry and exit points.
The guidance provides a form of notice which employers should display in their workplace to show their employees and customers that they have followed the guidance.
What are the employment law implications of making such changes?
- Changing hours of work or changing the workforce into teams may require changes to the employees’ terms and conditions of employment. Currently employees may be furloughed and the employer could rotate the employees who are attending the workplace and those who are furloughed. However, the furlough scheme is due to on 30th June, although it has been suggested that the scheme may remain available for some sectors or be made more flexible so that it can support short-time working to enable people to return to work gradually but to maintain some level of income while working reduced hours.
- If a phased return to work is adopted, employers will need to ensure that they do not adopt discriminatory selection criteria in determining who should return to work. Reports have suggested that older employees and black and ethnic minority workers have suffered disproportionate harm from the impact of the virus. The guidance is clear that employers should not discriminate and an employer should therefore understand and take into account the particular circumstances of those with protected characteristics; communicate with workers whose protected characteristics might either expose them to a different degree of risk; and consider any particular measures or adjustments. However all these steps do have to be balanced against any unjustifiable negative impact that the steps will have on some groups compared to others.
- Annual leave: an employer may consider requesting that staff use some of their annual leave during this period. However, while an employer can request that an employee takes their leave at certain times there is concern over whether employers can require employees to use all their annual leave during this period when the employee is not working. In addition, the Government has introduced legislation allowing for employees to carry their holiday forward for a period of two years and employers will need to consider how they will deal with requests to take holiday once lockdown has ended.
- Employers may find that if they cannot retain all staff then they may need to restructure the workforce and make redundancies. Our briefing on “Alternatives to redundancy” can be found here.
- Refusal to return to work. An employer must be mindful of employee’s concerns regarding returning to work. For those employees who are particularly vulnerable, then an employer should not request them to return to work if this would put them at increased risk of contracting the virus or it would be inadvisable for them to use public transport to return. Employers should also bear in mind those employees who are shielding vulnerable household members. However, if an employee is not specifically at risk or shielding someone at risk, employers need to consider how they will respond to such a refusal which would amount to a refusal to comply with a lawful instruction.
- Grievance procedures. Employers may find themselves with increased grievances from employees. Employers may find employees raising grievances regarding the health and safety obligations. Under s100 Employment Rights Act 1996, an employee is protected from detriment or dismissal where they refuse to return to a place of work or take steps to protect themselves in circumstances of “serious or imminent danger”.
The eight workplace guidance documents cover construction and other outdoor work; factories, plants and warehouses; homes; labs and research facilities; offices and contact centres; restaurants offering takeaway or delivery; shops and branches; and vehicles. Links to all the guidance can be found here. The government does point out that some employers will operate more than one type of workplace and they will therefore need to use one or more of the guides to devise safe working arrangements.