The Government has now published the new COVID-19 guidelines in relation to returning to work. They contain considerable detail, and guidance specific to various sectors. We summarise here some of the main matters that employers will need to consider.
First, the Government’s plan
The following plan took effect on Wednesday (May 13th).
“For the foreseeable future, workers should continue to work from home rather than their normal physical workplace, wherever possible.
“All workers who cannot work from home should travel to work if their workplace is open. Sectors of the economy that are allowed to be open should be open, for example this includes food production, construction, manufacturing, logistics, distribution and scientific research in laboratories. The only exceptions to this are those workplaces such as hospitality and non-essential retail which during this first step the Government is requiring to remain closed.
“As soon as practicable, workplaces should follow the new “COVID-19 Secure” guidelines.
“It remains the case that anyone who has symptoms, however mild, or is in a household where someone has symptoms, should not leave their house to go to work. Those people should self-isolate, as should those in their households.”
There is extensive guidance for people who cannot work from home in the Government documents for which there are links at the end of this blog.
In many cases employees will not be able to return with significant preparation on your part. It is therefore crucial that you read the relevant Government guidance first.
Giving notice of return
We strongly advise that you give employees notice when you require them to return from furlough. 48 hours is regarded as a minimum, but more would be wise; especially for employees who may need to make arrangements, such as childcare, to return.
It is important to explore alternative ways of working such as staggered hours, part-time work, different locations, and, of course, homeworking. There could be contractual implications of such changes. Therefore, in the first instance, significant changes should arise only after consultation and agreement.
Where an employee is not prepared to agree then you might be prepared to understand their position. In those circumstances you might be able to reach agreement on unpaid leave. It would be crucial to document agreements. Other alternatives to agreement may be a lay-off (if a clause exists) with only guaranteed pay (5 days at £30 in a 3-month period), redundancy or notice of dismissal for “sound business reasons”. It is not easy to predict how sympathetic tribunals might be to “sound business reasons”, in this context. Their decisions may depend on the precise circumstances. As for redundancy, we look at redundancy in a separate blog.
Travelling to work is, essentially, the responsibility of the employee. However public transport may give rise to anxieties as above, the government is discouraging public transport and it may even be impractical in the circumstances. The considerations in the previous paragraph apply; from understanding an employee’s circumstances, to giving notice.
Employers need to address how to achieve this in the workplace or, where they cannot achieve it, whether they can justify compromises. This will include the workplace, how employees are able to travel to work, meetings, areas where employees may need to pass each other and common areas such as toilets. The Government guidance covers these matters, including how to deal with accidents.
Workplaces, even those which have been left idle, will need to be cleaned and consideration will need to be given to toilets, providing sanitisers, and the need for frequent hand-washing. Employers will need to decide how best to handle materials and goods coming into the workplace or otherwise into contact with employees.
You need to take steps to reduce infection risk, for example how to protect from any asymptomatic carriers who would be touching keyboards, door handles, etc.
Workplace safety issues
The HSE has produced guidance on health and safety matters, including guidance as to when to report Covid-19 occurrences.
You might consider vetting employees by a simple questionnaire or potentially by temperature testing. We included a cautionary note on testing in this blog.
The Government is clear that all employers need to carry out a risk assessment and states:
“You should share the results of your risk assessment with your workforce. If possible, you should consider publishing the results on your website (and we [i.e. the Government] would expect all employers with over 50 workers to do so)”.
You might note the words “should share” and “we would expect”. However, Employer Solutions suggests publication would be good practice and engender better commitment from employees.
You can publish the results on an online Employee Handbook where it need not be public and where it will target employees. Please contact us if you would like to do so.
It is important to be mindful of potential claims of discrimination in decision making. There are 9 protected characteristics where there is potential for unlawful discrimination. They are: race: sex: pregnancy or paternity: disability: age: religion or belief: sexual orientation: gender re-assignment: married or civil partnership status. Additionally, it is unlawful to discriminate on trade union membership or non-membership.
However, mortality risks rise for certain groups. These can relate to protected characteristics. You could find yourself in a difficult situation where you must choose between two equally risky courses of action. Do you select a 21 year-old for a return and continue to furlough a 61 year-old – age discrimination! Or select the 61 year-old who might be better skilled, but whose mortality risks are far higher? We suggest consultation with such employees. No-one should feel obliged to put themselves in a potentially vulnerable situation (notwithstanding that you will make the environment as safe as practically possible) if they have valid vulnerability reasons. Nor should you discriminate against anyone other than on their vulnerability, on which they ought first have an opportunity to express their view. This should keep you safe (if you keep a record).
Anxiety and stress can arise from self-isolation, fear of the disease for oneself and those close, various domestic situations illness, bereavement, etc. The workplace itself will be different. Relationships may need to be re-established and there could be many new challenges. All this, of course, may apply to employers as well as employees.
We may need to take time to adjust, have reasonable expectations of ourselves and others and accept many matters over which we have no control. Organisations such as Mind are gearing up to provide support for the current situation.
Absence from work
There are various reasons employees may still be absent from work, for example some employees need to shield themselves, self isolate, or suffer bereavement. Employer Solutions has prepared a Covid – 19 absence policy to guide employers and employees. It is available on request.
- Construction and other outdoor work
- Factories, plants and warehouses
- Labs and research facilities
- Offices and contact centres
- Other people’s homes
- Restaurants offering takeaway and delivery
- Shops and branches
*Please get in touch if you need any support – we are advising organisations daily on all HR elements of COVID-19.
Malcolm Martin FCIPD
Author Human Resource Practice
Blogs are for general guidance and are not an authoritative statement of the law.