Coronavirus – Finding a way back to workplace norms after lockdown

 

Following Sunday night’s announcement by the Prime Minister, employers across the country continue to wrestle with complex considerations for managing their workforce over the months to come.

The Government has promised detailed guidance this week for getting people back to work. However, employers are grappling with the fact that the guidance may change but the risks have not significantly altered since lockdown began. We look at the key considerations for employers and some approaches that will help limit the risks which need to be addressed when making plans.

Following the release of the Governments Covid-19 Recovery Strategy, new “COVID-19 Secure” guidance notes are expected this week, aimed at seven different areas of the UK’s workforce: hotel and restaurant staff, those who work in other people’s homes, factory workers, people working outdoors, people working in vehicles, shop workers, and office workers.

For now, the message remains for staff who can work at home to continue to do so, but those who cannot are encouraged to return to work if the workplace is open. This means that employers may have little time to get to grips with making workplaces safe. The fundamental issue here is that responsibility for employee safety will still rest with the employer and their judgement of whether they can implement the necessary measures for a safe place and system of work.

Concerns over the burden being placed on employers have been voiced by many, including the unions, pointing to “huge gaps” over PPE, transport options and testing for those who are now ‘actively encouraged’ to return to their jobs.  In the absence of clear guidance on how employers can safely open their workplaces we recommend a cautious approach, with extensive risk assessments ahead of any reopening of your premises. Once the risk assessment has enabled a safe system to be devised, a clear plan for implementing and enforcing it can be shared with unions and staff, whose cooperation will obviously be critical for its success.

  1. How do we protect our staff?

There is no doubt that health and safety concerns will continue to remain at a heightened level until there is an effective vaccine available. As employees start to return to work, employers will need to provide reassurance that they have safeguarding measures in place to protect their staff.  Employers will need to provide risk assessments, ensure clearly visible signs and posters are on display to maintain the safety of staff and to keep social distancing in place, provide PPE where considered necessary and then deal with basic safety practicalities such as making hand sanitisers available. Employees may also be anxious about travelling to work on public transport if there are no alternatives available to them. One solution may be to provide additional flexibility such as allowing staff to start work earlier or later in the day to avoid the busiest times.

For all employers it is essential that health and safety is the top priority.  It is the duty of every employer to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all its employees. Employees have the right not to attend work if they believe it is unsafe to do so – the best way of avoiding this and any ensuing claims is to show that what you are doing is reasonably practicable. Demonstrating that you are following Government guidance is good evidence of what is reasonably practicable and it may be very good evidence of what is a safe system of work. However and importantly, it is not “the law” on health and safety at work and it does not change the statutory and common law duties that rests on employers themselves to:

  1. assess the risks in their business
  2. set up a safe system of work, and
  3. implement that system.

We think it likely that Government guidance for the workplace will prove controversial in this respect. One way of removing the controversy is for employers to carefully consult and agree the safe system of work with their staff or with staff representatives such as trades unions.

  1. What happens if an employee refuses to come to work? Can an employee be dismissed or not be paid for not coming to work because of coronavirus?

The short answer is yes.  But (and this is key) if the employee reasonably believes that the threat of doing so to their health & safety is serious and imminent and cannot reasonably be controlled then any dismissal would be automatically unfair. The employee may also be able to claim compensation for any impact of refusal, such as the non-payment of wages.

We can say with confidence that Coronavirus is very likely to amount to a serious and imminent risk in most workplaces based on what we currently know (The Government regulations such as the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 declare that they were made because of “the serious and imminent threat to public health”).

The best answer in these circumstances is for employers to follow the Government guidance but to carry out their own risk assessment of the workplace and the method of getting to work for their employees. Once they have set up and implemented all protections that they reasonably can, the next step is to consult, negotiate and agree the measures with the workforce. Again, this offers no immunity from claims but we consider it offers the best way forwards.

  1. Can an employer compel a clinically vulnerable or disabled person to return to the workplace?

If a clinically vulnerable or disabled person wants to continue to shield at home – either because of  Government advice or because there is no vaccine for the virus available – then it is likely that  any insistence on their returning to work may lead to potential claims under health and safety legislation and of discrimination.

In such cases where a vulnerable to disabled person refuses to attend work because of the perceived increased risk because of their disability or vulnerability, medical advice should be sought as soon as possible, from the employee’s GP or occupational health, to confirm or clarify the potential risks and to see what adjustments, if any, should be made to assist the employee in continuing to work. Where the matter is urgent and there is insufficient time to obtain medical advice, employers may wish to err on the side of caution and allow them to remain at home.

  1. Can an employer compel a “shielding” person to return to the workplace?

It is our view that that the answer is no.  People who are at very high risk of severe illness from coronavirus because of an underlying health condition have been advised to “shield” themselves by staying at home for at least 12 weeks. Government guidance to date on shielding for extremely vulnerable people, includes a list of those included in this category. These people will have been notified by the NHS that they are at very high risk and should shield themselves.

  1. Does this apply to those who live with someone who is “shielding”?

According to the current guidance, people who live with someone in the very high risk group should stringently follow guidance on social distancing and reduce their contact outside the home. However, they are not required to take the shielding measures themselves.  Employers should therefore support employees who live with someone at very high risk to work from home if at all possible. They should travel to work only if it is possible to follow the guidance on social distancing stringently and remain at least two metres away from others while at work, and on the way to and from work. If neither working from home nor strict social distancing is possible, employers should consider alternative arrangements, such as a period of furlough.

  1. What about employees with child care responsibilities if their children are not returning to school/nursery until September? Can they be compelled back to work?

With the current message for employees can’t work from home being actively encouraged to go back to work, our view is once again to take a cautious approach here.  It is arguable that those employees with childcare responsibilities simply can’t work.  Employers could consider paying for childcare but this could prove expensive.  Alternatives could include providing equipment for those employees to work from home, but balancing this against the fact that employees with very young children will not be able to work in the same capacity as they had been previously.  Failure to take a cautious approach could potentially lead to discrimination claims, as women are still more likely to have the bulk of childcare responsibilities.

  1. How do we ensure social distancing at work?

While social distancing remains in place, it may not be possible to accommodate all employees in the same space at the same time. A phased return to work may be one option, with some people coming back earlier than others. However, employers could encounter resistance from employees who feel that they are being recalled too early and from others who are unhappy that they have not been recalled sooner – so it will be important to ensure that a clearly reasoned and well-communicated plan is provided to your employees.  From a practical perspective, workplaces will need to be made ready. In an office environment, many organisations do not have sufficient space to seat people two metres apart and there may be a need to rearrange furniture or install partition walls. It may also be possible to maintain a distance between desks by alternating the days or times that different groups occupy the workplace, minimising the number of people present at any one time. Other restrictions may be needed, governing for instance how many people can use a lift, share a lunch area or be in a meeting room. Social distancing also comes at social cost and people can find the enforced separation from colleagues upsetting, even if it’s just not being able to make each other a cup of tea – think about ways of boosting team morale to help offset the stress of working within these new strictures.

  1. Can we expect more requests to work flexibly?

In the weeks and months ahead, employers are likely to see an increase in requests to work flexibly from staff who were previously based at the business premises but who have since adapted to homeworking. The Government is said to be considering measures which will strengthen employees’ rights to make requests for working from home.  One ‘silver lining’ of lockdown may have been that more flexible working practices have made it easier for workers to manage caring responsibilities, as well as saving on the cost and stress of a daily commute. Line managers who previously resisted remote working may recognise that employees can be efficient when out of sight.  Many employers will welcome and even encourage these requests if it helps ensure social distancing in the workplace.

  1. How do we manage the reputation of our business?

Organisations may need to consider the impact of decisions made during the coronavirus pandemic on their brand. There is an opportunity to capitalise on positive impressions made in difficult times. On the other hand, negative impressions will need to be addressed and counter measures taken where possible. When the pandemic is over, the way in which the organisation is perceived by its employees and by potential new recruits may differ from previous views. Some employees may start to look for alternative employment if they feel that their employer did not handle the situation well, or they may feel less secure in their current role, and potential new recruits may be deterred.

  1. How do we help employees with their mental health?

HR teams will need to continue supporting the mental health of their employees and this will need to continue as people return to work. Employees may have been ill or have suffered a family bereavement as a result of coronavirus. Others may have to come to terms with the death of a friend or colleague, which makes returning to work particularly difficult. It is crucial that employers treat people with compassion, and that they remind employees of the support and resources, including employee assistance programmes, mental health first-aiders, resilience training and counselling, available to them.

  1. What about the future? What should our contingency plan be taking into account?

Looking ahead, employers should make contingency plans in case of a feared second wave of coronavirus and reintroduction of restrictions. From the first Government restrictions in mid-March to the lockdown announced on 23 March, many organisations had to react quickly and implement new measures in an almost impossibly tight turnaround time, often developing solutions as they went along. You will need to consider what are the learning points from this and what steps could be taken now to ease the transition if it becomes necessary to do it again.

 

Looking ahead

We’ll continue to keep you updated in the weeks ahead – if you would like to discuss the particular issues you are grappling with in your own business please do get in touch.

 

If you would like further advice tailored to your particular circumstances, please contact us.