Covid-19 legal changes what , if any, long term effects on business is anticpated?
With the pandemic taking hold of the UK and the business community, we have seen numerous changes in regulations, but these have all been emergency laws enacted for the short-term and how long they will be needed is largely unknown. The legislators have had to pass bills very promptly through Parliament to address local lockdown and new government rules, how this will translate in the long run is hard to say and how the Coronavirus Act 2020 will hinder or assist businesses is yet to be seen but this is a fast moving area of the law which we all need to closely monitor and adhere to
Tech companies often have offices in worldwide Cities which comprise of a large number of staff which can range from a number of technical staff to legal, administrative, sales, and otherwise. For example, Apple Inc, has 132,000 employees, Samsung Electronics 309,630 and Foxconn with 667, 680 and keeping them all safe will be a varying challenge.
What is notable is how we are relying on older legislation to protect us in this modern varying world. For example, the Health and safety legislation, like the PPE 1992 legislation , which was very often used in construction sectors, for example, is now being rolled out even for office workers, tech companies included and everyday normal jobs. Rules and regulations around PPE were not something anticipated for warehouse workers let alone office workers and tech companies and, as such, this very antiquated legislation is being used for very modern and even advanced companies.
New Health and Safety
Since the pandemic, health and safety has been changing dramatically, the Health Protection (Coronavirus) Regulations 2020 (SI 2020/129) (Health Protection Regulations) came into force (in England) on 10 February 2020.
The Health Protection Regulations applied where the Secretary of State declared, by notice published on www.gov.uk, that the incidence or transmission of coronavirus constituted a serious and imminent threat to public health, the measures outlined in the Health Protection Regulations might reasonably be considered as an effective means of preventing the further, significant transmission of coronavirus (serious and imminent threat declaration). One part that stood out was The Health Protection Regulations provided that a person could be detained in some circumstances which opens questions for employees that can’t attend work , cant travel for work and can they stay at home/remote to work and quarantine..
It is not surprising that the biggest tech companies were the first to send all their workers home, and in the US Google, Facebook, Microsoft, Amazon and Twitter will likely be the last large employers to open their doors again, with Google and Facebook stating that many of their employees can work at home until 2021. Amazon stating that its employees will be staying at home until October and with office working at Microsoft being optional. However, not all businesses have the technology or capability of achieving this.
Getting employees back into the workplace safely
There is now going to be a lot involved in terms of getting employees back to work as below: -
- Risk assessments. Employers must carry out COVID-19 risk assessments in line with HSE guidance in consultation with their workers to establish what guidelines to put in place. This will be an overall of policies and procedures and the key will to have a forum to communication this to staff and address any concerns they may have;
- Cleaning and hygiene procedures. Employers should provide handwashing facilities or hand sanitisers at workplace entry and exit points. Deep cleaning will be required and updated health and safety policies;
- Working from home. Employers should take “all reasonable steps” to enable individuals to work from home where possible. So new or amended policies on using your own devices, flexible working , GDPR and home working will need to be implements as well as how you monitor and manage this ongoing requirement;
- Maintaining social distancing. Employers should re-design workspaces to maintain this level of social distancing by staggering start times, creating “one-way walk-throughs”, opening more entrances and exits, or changing seating layouts in break rooms. There maybe issues around lifts, travel into work , dealing with customers and delivers to toilet facilities;
- Managing the transmission risk where social distancing is not possible. The guidance suggests that employers could put barriers in shared spaces, create workplace shift patterns or fixed teams designed to minimise the number of individuals coming into contact with one another, or ensure that colleagues are facing away from each other. This also involves costs and training which needs to be addressed early on.
It is now vital for employers of all types and sizes to draft and send to their employees “risk assessments” and to update their health and safety and other policies to discuss how they are keeping employees safe and combatting the virus. As stated above working guidance provides the advice given, but we appreciate it is a lot to do and can be a distraction and a cost to an already struggling business.
Cyber-security and hacking
During lockdown, many companies small and large are facing data protection issues. As employees or workers generally are encouraged and allowed to work from home, cyber protection is or must be top of the list of priorities for businesses. This is because cyber hackings and crimes are continuing to increase. It is important that certain policies for example (homeworking policies, bring your own device policies, social media and IT security and systems policies) are all updated and employees understand how to abide by them to protect themselves and the businesses that they work for. The key will be to engage with your staff to ensure they feel comfortable to inform employers of any suspicious activity and are onboard to protect the business. Communication will be key.
It is important that such policies are put in place now by tech companies and all businesses , especially around how to react any such crime , as time and action will be critical to secure your goodwill . This helps protect your business from invalidating your insurance and also ensures that if a cyber attach happens that a fine from the Information Commissioners Office who are the UK Data Protection Regulator does not follow suit. Such fines can be very high as up to 4% of a business’ global turnover. Showing them you have take preventative and affirmative action can help. It is also very important to have up to date anti-virus software and cyber protection in terms of ensuring that your systems are updated and kept under regular review especially for businesses that are dealing with sensitive or special categories of data, children’s data or data that contains criminal conviction information.
This is also a good time for businesses and tech companies specifically to update their insurances and Cyber Insurance is one which most businesses are without and should re-visit to put in place as well as other businesses insurances which may be needed such a “key person insurance”.
Employment law has not changed with the exception of furlough rules, it has merely adapted and become more Covid aware, for example those in at risk groups for age or underling conditions or with a disability will be able under current laws to rely on the Equality Act for the employer to keep them safe during this period, be it on furlough or consider remote working or flexible working or make other reasonable adjustments. Employers need to ensure their processes are non-discriminatory but also take into account the ‘at risk group’.
As we know the Furlough rules are set to change in August with employers being required to pay for employees’ pension contributions and NI payments, and then in September only being able to claim 70% and October 60%. The issue is when Furlough support from the government ends on 31 October 2020, will jobs remain or will redundancy processes commence. How people are selected must be fair and transparent , follow the correct procedures and give ample notice and consultation is key if you are to protect yourself from claims as well as your brand and reputation as the world is watching how businesses treat their staff at this time.
Flexibility and health and safety rights
By law an employee, who has worked for the employer for over 26 weeks may submit a flexible working request and the employer must deal with the request in a reasonable manner. They must give consideration and not discriminate against an employee in terms of a protected characteristic when giving a decision, but ordinarily, it is not duty-bound to agree to this. However, these are not normal circumstances so how the Tribunals may view these cases as they come through will be enlightening and further it is already being said that Tribunal Judges will be understanding towards how employees are going to be feeling with the risk of contracting Covid 19, and that it is reasonable to come to the conclusion that Covid 19 is likely to be seen in the Tribunal as a virus that does in fact and can cause imminent danger and harm to an employee’s health. Childcare arrangements if they cannot be put into place restricting an employee working must also be carefully handled at this time as gender discrimination, health and safety maybe issues that arise.
Any employee who believes he/she has suffered a detriment contrary to Section 44 may bring a complaint before the Employment Tribunal.
Testing, pay and self-isolating
It is unlikely that an employment contract would be drafted in a blanket way in which to force employees to take any such test and it offers up concerns about confidentiality.
If you as an employer want to create a new workplace policy that insists on this and keeps employees safe if there is a Covid 19 outbreak in the workplace it needs to be carefully considered as this a new area of law. Some countries have though created a tracing app for their business employees to ensure they are social distancing but more so if one person is tested positive they can trace their interaction and send those staff members home rathe than close the entire business. These modern ways can be implemented so long as consent is obtained and employees understand what is happening and why.
Where an employee is subject to detention or a restriction that requires them to self-isolate, which means they have to stay away from the workplace, and that detention or restriction is underpinned by a legal obligation it is arguable that they would not be regarded as “able” to work. The implied right to wages which would ordinarily arise if their employer sent them home from work would likely not be engaged in this situation. The Employer may need to suspend an employee if they are infected with Covid 19, to protect the rest of the workforce and/or allow them to work from home in this situation if possible or pay them SSP.
It is not clear whether mandatory restrictions preventing an employee from working would fall within this category but this is caselaw which is yet to come into our courts and to be discussed in further detail, the majority of cases in this space will fall on their own circumstances and facts.
Even if there is no implied right to pay then it is likely that an employee who is forced to abstain from work because of compulsory detention or other restrictions made under an enactment (for example, the Health Protection Regulations or the Coronavirus Act 2020) would be entitled to SSP under the deemed incapacity, but only if deemed with such incapacity, provisions in regulation 2(1)(b)(ii) of the SSP Regulations the reason this being that it is known or reasonably suspected that the employee or person/worker is infected or contaminated by, or has been in contact with a case of, a relevant infection or contamination. This would only be if they qualify for sick pay and are an employee, and not another type of worker. However, an employer has a legal health and safety obligation to provide a reasonably safe place of work, such being a statutory right in accordance with section 44 of the Employment Rights Act 1996. A company we recommend needs a policy in that, if an employee shows symptoms, it must require them to leave the office immediately and not return until they have been tested. If the results for that test are positive, the employer would then have to take measures to protect the rest of the workforce. This may include sending home all people who have had contact with the infected employee. Not all businesses are the same, so it is important that all employers take substantial efforts to remain up to date with government and public health advice when deciding the best policies for them and take advice to ensure it's regulated in a confidential and non-discriminatory way and that they are abiding by the new Health Protection Regulations or the Coronavirus Act 2020.
There are many components for businesses to consider, during this time, from employment law, health and safety, data protection, cybersecurity, insurance all whilst re-opening and trying to re-establish their business. It’s a difficult time so the more businesses do to prepare, communicate and embrace the need for change the more we hope discretion and support will be afforded rather than criticism and fines or claims.