The post lock-down journey has begun as businesses start to re-open their offices and other workplaces. This raises a number of concerns for employers and we consider some of the key issues below.
On 11 May, the Government issued eight separate workplace guides (available here) on working safely during the Coronavirus pandemic. These were produced with input from businesses, unions, industry bodies and in conjunction with the devolved administrations, Public Health England and the Health and Safety Executive (HSE). They cover eight of the workplace settings that are currently allowed to open, from factories and plants to offices and contact centres. The workplace guide “5 steps to working safely“ focuses on the following five key points:
- Carry out a COVID-19 risk assessment;
- Develop cleaning, handwashing and hygiene procedures;
- Help people to work from home;
- Maintain 2m social distancing, where possible; and
- Where people cannot be 2m apart, manage transmission risk.
Although some further detail is set out in the guidance, employers will ultimately need to look at what they do and how they do it; translating the recommendations into specific actions based on the nature and size of the business and how it is organised, managed and regulated.
It is also important to remember that the underlying law governing employment, health and safety and discrimination has not changed and employers should continue to ensure they comply with their legal obligations. The workplace guides contain non-statutory guidance to take into account when complying with these existing obligations. The Government recommends that businesses also look to the advice being published by trade associations and similar groups on how to work out the Government guidance in their particular sector.
The HSE has also published guidance to help businesses navigate their health and safety responsibilities, available here.
ACAS has updated its guidance (available here) for employers and employees regarding the Coronavirus (COVID-19) relating to Working safely and social distancing in the workplace.
It is also worth noting that employers have a legal duty to consult employees in good time on matters relating to their health and safety at work, in particular about the introduction of any measures at the workplace that may affect the health and safety of employees.
The Government and ACAS guidance on Coronavirus (COVID-19) both confirm that employers must consult with staff when planning to return to the workplace. The Government’s guidance says: “The people who do the work are often the best people to understand the risks in the workplace and will have a view on how to work safely.”
Can we require employees to return to the workplace?
Yes, if the work can’t be done from home, it is lawful for the site to re-open, and the employer can, as far as is reasonably practicable, protect the health and safety of their employees; including complying with health and safety law and the current Government guidance.
However, employers do also need to ensure they make reasonable adjustments for those staff with disabilities and assess the health and safety risks for new or expectant mothers. Further, employers should make sure that any steps taken for returning to the workplace do not have an unjustifiable negative impact on some groups compared to others, for example, those with caring responsibilities or those with religious commitments.
If an employee is unable to return to work due to childcare responsibilities or their attendance is sporadic due to childcare issues, employers should have a discussion with the employee to work out next steps and to discuss the options available to the employee (such as taking unpaid parental leave or remaining on furlough). Before any action is taken, employers should be mindful of the discrimination risks (for example, on the basis that women are still more likely to have childcare responsibilities).
By communicating to the employees all the steps it has taken, employers will reduce the likelihood of any employee reasonably believing that returning to work places them in serious and imminent danger to their health.
However, if the employee is not reassured, then before taking disciplinary action, employers should consider options such as unpaid leave or continued furlough. If dismissal is the only course of action, then we recommend employers take specific legal advice, as dismissals for health and safety reasons, where the employee reasonably believes there to be serious and imminent danger in them returning to work, are likely to be automatically unfair.
Also, if the employee has raised specific concerns about returning to work then employers should also consider whether or not the raising of those concerns meets the definition of a qualifying disclosure for the purposes of a whistleblowing complaint. The employee would be protected against detriment and dismissal on the grounds of that disclosure so it would be important for any action taken to be distanced from the disclosure itself. It is important for employers to remember that employees without two years’ service can bring whistleblowing claims.
Changing terms and conditions
Many employers will be facing a number of changes in the workplace as a result of reduced workload or health and safety concerns. These may lead to the need to change staff terms and conditions; such as workplace shift patterns, hours of work or reduction in salary.
However, even if minor changes, employers do not generally have the right to change employees’ terms of employment unilaterally. Therefore, an employer will need to negotiate the changes with the employees. If the employer recognises a trade union for collective bargaining purposes, they may be able to agree the change with the union. Depending on the terms of any collective agreement, this may either be binding on all employees or may at least facilitate individual agreement.
If there is no union, individual employee consent should be obtained. This generally means that the employer should propose the changes to the employees, including carefully explaining the reason for them and offering to consult with employees about introducing them.
If an employer simply imposes the contractual changes they are likely to find either that employees resign and claim constructive dismissal, or, perhaps more likely in the current market, remain in post and claim damages for breach of contract, or compensation for unlawful deductions from their pay.
In some cases, employees’ contracts may contain a flexibility clause covering the change the employer wants to make. In that case the employer is in a much stronger position. However, such cases are relatively rare and if the clause is drafted in very general, all-encompassing terms, perhaps permitting the employer to make any variations it considers reasonable, the clause may well be considered too vague to be legally enforceable. That said, employees may be more amenable to changing terms if the alternative is redundancy in a market where there may be few job vacancies and they could be out of work for a considerable period of time.
Ultimately, if the employees, or some of them, will not agree to the changes, employers do have the (likely to be unpopular) option of dismissal and re-engagement i.e. terminating the employees’ employment and offering them re-employment on the changed terms. Dismissals in these circumstances will be for ‘Some Other Substantial Reason’ (SOSR) and may be held to be fair by a Tribunal, so long as there is a clear business necessity for the change and the employer has followed a fair process. Dismissal and re-engagement in this way will trigger collective consultation requirements where 20 or more dismissals are proposed within a period of 90 days or less.
If an employer’s return to work risk assessment concludes that it needs to test staff for COVID-19 or record any symptoms of the virus, it will need to comply with its data protection obligations.
The Information Commissioner’s Office (ICO) has published a helpful new set of FAQs for employers on COVID-19 workplace testing. The ICO accepts that employers will often be able to show a legitimate reason for processing health data in compliance with the GDPR, as long as they are not collecting or sharing irrelevant, inaccurate or unnecessary data.
Employers should carry out, and continually review, data protection impact assessments covering any new testing activity. Data must be processed securely and kept for no longer than necessary, and transparency will be critical. Employers should keep staff informed about potential or confirmed COVID-19 cases amongst their colleagues, but should avoid naming individuals if possible, and should not provide more information than is necessary.
The ICO notes that the use of temperature checks or thermal cameras on site may not be proportionate if the same results can be achieved through other, less privacy intrusive, means.
We also thought you might find the chart below a useful summary of the different categories of employees, based on current guidance.
Category – Clinically extremely vulnerable (shielding)
Definition – You will have received a letter from the NHS or your GP telling you to stay shielded for a set period.
What evidence do I need to provide? Please provide a copy if you have not already done so.
Will I be required to attend work? No – you should not attend the workplace but, depending on your role, may be able to work from home.
Category – Living with someone who is in the clinically extremely vulnerable (shielding) category
Definition – The person you are living with will have received a letter as above.
What evidence do I need to provide? Please provide a redacted copy of the letter sent to your household member.
Will I be required to attend work? Yes – It is advised you can work if stringent social distancing can be adhered to. This assessment will be undertaken on an individual basis. If stringent social distancing cannot be adhered to in your current or a suitable alternative role, then it may be possible to work from home.
Category – Clinically Vulnerable
Definition – You have one of the conditions identified in the guidance, meaning that you are at higher risk of severe illness.
What evidence do I need to provide? We may have evidence on your personnel file but will let you know if this is not the case.
Will I be required to attend work? You may be in work as long as government guidelines can be adhered to with regard to social distancing and hygiene. You will be offered the safest available on-site roles, staying 2 metres away from others wherever possible. A risk assessment will be undertaken where this is not possible. Dependent on your role it may be possible to work from home.
Category – Living with someone who is clinically vulnerable
Definition – The person you live with has a condition that comes under the “clinically vulnerable” category.
What evidence do I need to provide? Please provide detail to the School.
Will I be required to attend work? Yes, and social distancing guidelines and other protective measures guidance should be followed.
Category – Staff who are sick for non-Covid-19 reasons
Definition – Staff who are absent and sick, but not related to Covid-19.
What evidence do I need to provide? A GP Fit Note should be provided if your absence extends over 7 days.
Will I be required to attend work? No – unless your GP Fit Note or Occupational Health advice indicates otherwise.
Category – Self-isolating
Definition – Staff who are following government guidance to self-isolate because they have symptoms or a member of their household has symptoms. Some may be working from home.
What evidence do I need to provide? If you are self-isolating, due to Coronavirus, for more than 7 days, please provide a self-isolation note. You can get these via:
- NHS website
- NHS mobile phone app – for those registered with a GP in England
Will I be required to attend work? No – you must not come into the workplace if you have symptoms, but you can now get tested.
Category – Staff who are pregnant
Definition – This includes any stage of the pregnancy.
What evidence do I need to provide? None, although a MATB1 may have already been provided.
Will I be required to attend work? Staff in this category should work from home, where possible, but may be in work as long as government guidelines can be adhered to with regard to social distancing and hygiene. They should be offered the safest available on-site roles, staying 2 metres away from others, wherever possible, and an updated pregnancy risk assessment undertaken where this is not possible.
Pregnant staff in their third trimester must limit social contact and, therefore, it is advisable they work from home/do not remain in the workplace.
Category – Staff with childcare issues
Definition – Where your child is not of school age or cannot access childcare.
What evidence do I need to provide? None – but please provide further details.
Will I be required to attend work? Schools are available to key workers and childcare (early years/childminder) should be available.
Please raise any concerns in this regard.