Whilst the eagerly anticipated relaxation of the current lockdown restrictions will be welcomed by many, the transition to “new normal” working practices will undoubtedly bring a whole host of new challenges for business leaders and HR professionals; a prime example being the comprehensive HSE measures set out in the new guidance published by the Government on 11 May 2020 which employers are being encouraged to follow with immediate effect.
For many employers, preparing for and then ultimately implementing these new practices and procedures will arguably be considerably more challenging than coping with the initial enforced 8-week shutdown. Balancing the urgent need to get businesses back up and running, alongside the continuing health risks and the unique emotional and personal requirements of each individual employee, will require careful consideration and ongoing dialogue with all stakeholders to ensure trust is preserved.
Below are some of the key issues we anticipate businesses will be grappling with in the coming days/weeks.
What legal obligations do employers have insofar as protecting staff returning to the workplace?
Employers are under a duty to ensure the health, safety and welfare of their employees, as far as reasonably practicable. This duty will undoubtedly necessitate regular risk assessments in order to identify any risks presented by the COVID-19 pandemic and what measures the employer might reasonably take to control those risks.
The Government has published specific guidance on the COVID-19 health and safety measures businesses should consider depending on their type of work and workplace, acknowledging that every business is unique and will have its own risks and challenges. The HSE has also produced its own guidance on measures that should be considered. Employers will need to carefully consider these measures within the context of their own workplace prior to requiring employees to return to work.
Employers also have a legal obligation to provide certain health and safety information to their employees and consult with staff (or any trade union H&S representatives, if there are any) about health and safety matters. A lot of employers are likely to be unfamiliar with these obligations, their workplaces having historically been considered to pose a low health and safety risk to staff and visitors; employers will need to quickly familiarise themselves with these obligations and ensure they fully comply. The latest Government guidance underlines the importance of employee consultation and sharing the results of risk assessments with employees. There is also an expectation that employers with over 50 employees will also publish this information on their websites.
Are current internal HR policies and procedures sufficient, or will a specific COVID-19 policy be required?
Whilst there is no legal requirement to implement a specific COVID-19 policy, employers may wish to consider producing such a document. Not only will a COVID-19 specific policy assist with internal planning, but having such a policy will also demonstrate to the employees that the business is taking its obligations seriously and is doing all it can to reduce any risk to staff and the general public. It will also help to ensure that all staff are receiving the same, clear and consistent message regarding what steps the business is taking to protect them. This should help preserve and strengthen the employees’ trust in the employer, which will be paramount to ensuring a smooth transition into this next phase.
As referenced above, employers are under a legal obligation to provide certain health and safety information to employees; the production of a COVID-19 policy may be a useful method of evidencing that this obligation has been satisfied.
As a minimum though, an audit of current HR policies is strongly recommended. For example, it will be important to ensure that employees know what conduct and behaviours are expected of them and the implications of breaching the new working practices. Employers may want to consider requiring returning employees to confirm in writing that they understand and will abide by the new rules.
Can an employer require employees to undergo health assessment/testing e.g. temperature checks?
Such testing is potentially possible though extreme care will need to be had insofar as protecting the confidentiality and personal data of the employees. It is recommended that expert advice is sought in advance of commencing any such screening to ensure that the business is acting in compliance with GDPR obligations and related regulatory requirements.
What should an employer do if employees fail to abide by social distancing and other health and safety policies within the workplace?
It will be important to ensure that employees understand the new measures / rules being put in place, the rationale behind them and the repercussions should they fail to comply; employees need to understand what is expected of them before any enforcement action is taken. Employers will need to decide the severity with which breaches will be treated and this should be clearly communicated to employees. Managers should be instructed that the agreed approach should be applied consistently across the business to avoid claims of unfair treatment.
Employers should to take this opportunity to revisit their whistleblowing policy to ensure they are up-to-date and fit for purpose, in the event any employees feel obliged to “blow the whistle” on their non-compliant colleagues.
In addition to the usual whistleblowing/grievance policies, it may be useful for employers to implement a specific procedure for dissatisfied employees to raise COVID-19 related concerns with management. This will help avoid valid whistleblowing claims arising in the event they make disclosures elsewhere and it will also potentially reduce the risk of complaints being raised directly to HSE (the current guidance actively encourages employees to highlight breaches to HSE). Having a specific COVID-19 reporting policy should also avoid employers having to deal with large numbers of grievances under a cumbersome grievance procedure with multiple stages.
Can an employer require an employee to return to work?
The current guidance states that if you can work from home you should continue to do so, but those who are unable to work from home should now re-commence their duties at their place of work (to the extent they have not continued to do so throughout lockdown).
Some employees may be naturally concerned about returning to work, however implementing the guidance and ensuring meaningful consultation and transparent communication with employees should assist in allaying any reasonable fears they may have about whether returning to the workplace places them in serious or imminent danger.
However, employers will undoubtedly need to prepare for how they will deal with employees who in the higher risk categories or who live with someone who is particularly vulnerable. Following the Government’s announcement on 12 May 2020 that the CJRS is being extended until October, employers may consider permitting such employees to remain furloughed so as to avoid placing them (or vulnerable members of their household) at risk. Any decisions in this regard should be made in consultation with the individual concerned; making unilateral decisions based on assumptions as to what is in their best interests could give rise to discrimination complaints. We would recommend that employers survey their employees in order to identify potential issues/concerns which can then be factored into the employer’s planning and future consultation. An example questionnaire can be found here.
Employers will also need to ensure that they continue to comply with their specific obligations concerning pregnant employees, who may be entitled to suspension on full pay if identified risks cannot be alleviated and/or alternative roles found for them.
If an employer has implemented the guidance and fully discharged its health and safety obligations, such that it considers an employee’s refusal to return to work (given their specific circumstances) unreasonable, caution should still be exercised in dealing with such a refusal, not least given the potential reputational risk.
What is the position if employees have child (or other) caring responsibilities but their workplace reopens before the schools/nurseries?
Such employees can be furloughed for the duration of the CJRS, or until the employee’s usual childcare arrangements can be reinstated.
What about employees who return to work and then develop symptoms?
The same rules continue to apply concerning self-isolation for anyone who develops COVID-19 symptoms, or if they have been exposed to anyone who has symptoms. Employers may wish to take this opportunity to remind employees of the self-isolation rules and expressly require employees to report any sickness or exposure to infection at the earliest opportunity. Self-isolating employees will be entitled to SSP (and possibly company sick pay depending on the policy).
Employers will need to have a rapid response plan in place, prior to reopening, clearly setting out how they will handle an outbreak of the virus at the workplace.
Should employees be allowed to continue to work from home if that is their preference?
The current guidance is that employees who are able to work from home should continue to do so. The issue for employers will therefore be identifying those employees who, due to genuine operational reasons, have to attend their place of work rather than continuing to work from home.
If a workplace opens in stages, how should an employer choose which furloughed employees to bring back to work and when?
As with any selection exercise, clear objective criteria should be used to avoid any suggestion of discrimination. Again, it will be important to avoid making assumptions based on the individual circumstances of an employee; decisions should be made by reference to the needs of the business.
How do you bring a period of furlough leave to an end?
Subject to the terms of the furlough agreement, the employer simply needs to write to the employee advising them of the decision to bring their furlough period to an end and require them to recommence work. As much notice as possible should be given, though there is no specific minimum period of notice that is required.
Can employees be required to undertake alternative roles and/or work different hours to accommodate a return to work?
Unless the contract of employment expressly permits the employer to make such changes, any variation to contractual terms will need to be agreed with the employees. Even if the contract permits the change, care should be taken to ensure that the implied term of trust and confidence is preserved.
In the current circumstances, employers may find employees more amenable to accepting proposed changes, especially if they are temporary and the employer agrees to keep them under review.
However, if the employer intends to proceed with alternative options should these negotiations be unsuccessful (e.g. redundancies and/or terminating current contracts and offering reengagement on new terms) the obligation to collectively consult will be triggered where it is proposing to dismiss more than 19 employees at the same establishment within a 90-day period.
When should collective consultation commence?
The obligation is triggered when an employer is proposing to dismiss more than 19 employees at the same establishment within a 90-day period. The obligation to collectively consult does not just apply to redundancy situations but also where an employer is proposing to terminate and offer re-engagement on new terms.
If 20-99 dismissals are proposed then the first dismissal cannot take affect within 30 days of the consultation commencing, and if at least 100 redundancies are proposed then the minimum period is 45 days.
Is it possible to commence redundancy consultation whilst someone is furloughed?
Yes, there is no prohibition in the CJRS on commencing consultation or indeed serving notice whilst someone is furloughed.