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Returning to work...or not - Part One

Over the last few days, there have been yet more key developments, including:

  • 10 May 2020 - Boris Johnson’s announcement;
  • 11 May 2020 - the new Guidance “Our Plan to Rebuild: The UK Government’s COVID-19 recovery strategy”;
  • 12 May 2020 - “COVID-19 Secure” guidelines; and
  • 12 May 2020 - Chancellor Rishi Sunak’s latest furlough announcement.

Whilst progress will be slow, the country’s focus will shift from staying at home to “staying alert”. With the country gradually beginning to return to some form of normality, many businesses are or will be gearing up to a return to work in some shape or form over the coming weeks and months. It is inevitable, however, that other businesses will, sadly, be considering closures, restructures and redundancies.

We will be offering practical guidance on the key employment law issues arising from returning to work…or not over the next few weeks, beginning with a brief overview today.

If you need any specific advice on these or any other employment issues, please do not hesitate to contact the Employment Team.

Returning to work

In the Plan to Rebuild, the key aspects for employers are as follows:

  1. For the foreseeable future, workers should continue to work from home rather than their normal physical workplace, wherever possible, i.e. no change!

This will minimise overcrowding on transport and public places with those that are having to attend their workplace.

  1. All workers who cannot work from home should travel to work if their workplace is open.

  2. Sectors of the economy that are allowed to be open should be open, e.g. food production, construction, manufacturing, logistics, distribution and scientific research in laboratories. (Non-essential retail is currently anticipated to open in phases from 1 June and some hospitality from 4 July.)

  3. As soon as practicable, workplaces should follow the new “COVID-19 Secure” guidelines. (Please see below.)

  4. Travel to work should preferably be by foot, bike or own transport, and people should avoid public transport wherever possible. (Businesses will be expected to support this, e.g. by expanding bicycle storage facilities, changing facilities and car parking, where possible.)

Unfortunately, this is not realistic for many of the population, who will have no option but to use public transport.

Whilst the government now recommends using “face-coverings” if using public transport (or other public spaces) and continues to advise social distancing measures, this may not alleviate the anxiety of those obliged to use such transport to get to work.

  1. Businesses should allow individuals to avoid peak travel times on public transport where possible, perhaps staggering working hours.

  2. Individuals are advised to reduce the number of people they spend time with/regularly come into contact with in a work setting, where possible.

Businesses should support this where practical, e.g.:

  • by changing shift patterns and rotas to keep the same “team” together each time;
  • by splitting people into smaller, contained teams; and
  • by taking reasonable steps to avoid people being gathered together, e.g. by allowing the use of more entrances and exits and staggering entry and exit.
  1. Businesses must assess and manage risks to safety in the workplace (see below).

  2. Those who are more “clinically vulnerable” to COVID-19 (including people aged 70 or older, people with liver disease, people with diabetes, pregnant women and others) should continue to take particular care to minimise contact with others outside their households, but do not need to be shielded.

You should give these staff particular consideration when conducting risk assessments and/or planning their return to work.

  1. The “extremely vulnerable” group (including solid organ transplant recipients, people receiving chemotherapy, renal dialysis patients and others) should continue to shield until the end of June and possibly beyond that.

Given the extension of the furlough scheme (see below), employers can continue to furlough shielding staff, as before.

 

Health and safety

When planning for and asking staff to return to work, it is critical for businesses to protect health and safety and minimise the risk of contamination as far as possible. In order to do so, businesses will be expected to follow the COVID-19 Secure guidelines (published on 11 May 2020) and any other official guidance from HSE, PHE etc, especially as HSE have the power to temporarily or permanently close down businesses where they believe there is a risk to staff or public.

Five key principles are set out in the COVID-19 Secure guidelines, to be implemented by businesses as soon as possible. These are all self-evident and do not take us much further forwards:

  1. Work from home, if you can.

  2. Carry out a COVID-19 risk assessment, in consultation with workers or trade unions.

  3. Maintain 2 metres social distancing, wherever possible.

  4. Where people cannot be 2 metres apart, manage transmission risk (e.g. by providing screens between desks, one-way systems for movement around the office, better hygiene measures etc).

  5. Reinforcing cleaning processes. (As evidence suggests that the virus can exist for up to 72 hours on surfaces, frequent cleaning is particularly important for communal surfaces like door handles or lift buttons and communal areas like bathrooms, kitchens and tea points.)

The new guidance has also provided a separate guide for 8 different industries, aiming to cover a range of different work:

  • construction and other outdoor work;
  • factories, plants and warehouses;
  • labs and research facilities;
  • offices and contact centres;
  • other people’s homes;
  • restaurants offering takeaway or delivery;
  • shops and branches; and

Given the length of each guide, we won’t summarise them here but would encourage you to read through any which are applicable to your business. However, all the guides:

  • reinforce the importance of social distancing and hygiene measures;
  • remind businesses to prioritise controlling the risk of contamination at the workplace;
  • encourage home working where possible; and
  • provide practical tips for businesses where staff must return to their workplace, including:
    • using face coverings which are changed and washed daily;
    • regularly washing hands and creating hand sanitisation stations;
    • introducing one-way systems;
    • staggering arrival, departure and break times to avoid overcrowding;
    • designating outside areas as common areas where safe and possible; and
    • having meetings with essential participants only.

 

Furlough Extension

On 12 May 2020, Rishi Sunak announced the extension of the furlough scheme until the end of October 2020. Key points to note are:

  • The scheme will continue without change until the end of July, with the government paying 80% of furloughed employees’ wages.
  • From August (and until the scheme expires in October), employers will be required to share the cost of the scheme (remaining at 80% of wages at a maximum of £2,500 per month) with the government.

This is likely to alter some businesses’ attitudes and approaches towards furlough, e.g. in relation to employees who were re-engaged purely to be placed on furlough and for whom businesses will not want to incur any wage costs.

  • From August, the scheme will provide for greater flexibility, allowing employees to return on a part-time basis in order to support the transition back to work.

Details of these changes will be confirmed at the end of May.

How to deal with refusals to return to work and potential claims

It is understandable that, after a prolonged period of home working/furlough/shielding, many individuals will be anxious about returning to work when the time comes.

As such, employers should keep staff regularly updated regarding their plans of how and when they will commence a phased return to work and should also promptly address any concerns raised.

Some individuals may refuse to return to work at all or to perform certain aspects of their roles. If there is no reasonable basis for such refusal, this may be a disciplinary matter. However, businesses should carefully consider the reasons for the refusal to ensure that they are not exposing themselves to potential claims. For example, what if the individual claims it is unsafe to return due to lack of PPE, inadequate sanitizer / handwashing facilities, the need to undertake group work and/or travel, inadequate social distancing, a vulnerable family member, having to use public transport…? The list goes on.

Tread carefully and seek advice in such scenarios to avoid potential health and safety or whistleblowing claims which will be costly, time-consuming and reputationally damaging.

How to deal with staff unable to return to work

You may also have staff who simply cannot return to work due to ongoing childcare commitments following the recent announcement regarding schools.

Whilst a phased return is expected from 1 June for children in early years and Reception, Year 1 and Year 6 (in primary school), and secondary and further education students facing key exams next year may also have some face-to-face contact with teachers before the end of this academic year, this leaves a vast number of year groups and students potentially not returning to school until September 2020.

Whilst the government has cited an “ambition” for all primary school children to return to school before the summer for a month “if feasible”, parents are not holding their breath, and other secondary school pupils have not been mentioned at all.

Businesses will have a number of options in relation to those parents, including:

  • Allowing continued working from home (which is encouraged in any event), possibly agreeing reduced hours and pro rata pay if that is preferable for the individual and business;
  • Furlough;
  • Allowing periods of unpaid parental/dependants’ leave; and
  • Offering unpaid/part paid sabbaticals.

Unless an individual can work from home, furlough may continue to be a good option, at least until businesses are required to start contributing towards furloughed employees’ wages in August.

 

These notes have been prepared for the purpose of an article only. They should not be regarded as a substitute for taking legal advice.

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