Employer: Return to work plan post-lockdown

Employers: A to Z on a staggered return to work plan

Employees are going to have mixed reactions, when employers discuss their return to work plans, with them. There will be factors around childcare, transportation, health concerns and some people’s desire to remain working at home for productivity. How an employer handles this will very much depend on its needs and requirements, but the law and government guidance should also be considered carefully. The key for employers is to have a clear and documented plan , amended transparent policies and to engage in conversations with its team to get everyone on board, where possible.

What are the essential things you might need to consider as an employer and work place/office provider?

It is anticipated that it will be a staggered return to ‘normal’ and each industry will be treated differently however there are a number of common considerations for businesses to consider regarding their employees’ post-lockdown

1.Remote working

Once the government enables return to work the employee’s contract will apply and as such they will be required to return to their workplace under contract law. However, presently guidance remains if you can work at home continue to do so.

There are a number of factors to consider:

  • 1.1 Employers do have a legal health and safety obligation so they must ensure they are operating effective social distancing measures and safety within the workplace. If they have not, employees have a right not to attend their workplace if there is a reasonable belief that doing so would pose a ‘serious and imminent threat’. If an employee decides not to go back to work for this reason, but is being forced to do so, they can put in a grievance at work to protect their employment rights and help to stop an unfair dismissal. This creates a serious need for a documented plan (risk assessment) and policy effectively communicated to its employees.
  • 1.2 While it may have appeared that the current remote working conditions are a temporary fix it is likely that some employees will want to continue working remotely and employers may wish for staff to remain doing so to help with the staggered return to work plan or for it to reduce workspace requirements. Consultations can take place about how remote working could continue, for how long and for whom, but the employer will need to be careful to offer this to all staff in a non-discriminatory way, which is perceived as fair to all staff;  and it will need to  ensure it has updated work at home; GDPR and health assessment policies in place
  • 1.3 Those in at risk groups for age or underling conditions or with a disability have a right under the Equality Act for the employer to keep them on furlough or consider remote working or flexible working or make other reasonable adjustments.

2. Staggering work times or days

It is likely that businesses are going to need to give employees more flexibility in terms of working time as opposed to the 9 to 5 schedule due to the slow reopening of schools and childcare arrangements other things. As the UK Government will want to significantly curb the number of people on public transport at one time, they will likely suggest that employees who have to attend the office/workplace do so with staggered work times or days.

Staff could 2 or 3 days swopping with other staff to enable social distancing as well as vary their work operating times. Again, this can be done, but the employees need to be consulted and treated fairly as plans are put into action.

It is hoped this degree of flexibility will have a positive impact on productivity. Some people work better in the morning and others later in the afternoon and evening. By staggering the work times of employees, business owners may see an increase in the volume of work produced, a happier workforce and potentially personnel to cover longer periods of the day to reach clients and customers.

3. Flexible working

Some workplaces have always offered flexibility to their employees, but if employees now approach employers about access to this what is an employer’s duty?

By law an employee, who has worked for the employer for over 26 weeks, may submit a flexible working request (a statutory application). The employer must deal with the request in a reasonable manner. They must give consideration and not discriminate 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.

If unsuccessful, there is usually an appeal process and the option to take the application to an employment tribunal if there are grounds to believe the employer did not handle the request in a reasonable manner or discriminated against an employee based on gender or another protected class. The employer may refuse the application if there is a good business reason for doing so, but given the circumstances, we believe this will be placed under scrutiny by a Tribunal. So, a concise policy available to everyone, a consultation process and a documented decision is highly recommended when discussing these requests with staff. The employer should treat everyone fairly and consider their home and parental requirements, transportation, performance and productivity.

4. Social distancing in the office

Social distancing is here to stay for a while and employers are going to need to consider how employees get to work and operate safely. Employers will need to carry out a risk assessment, update its policies and convey this to their employees in a clear manner, we would also strongly suggest they are given contact details and a forum to have the opportunity to discuss any concerns, they may have, with a member of management. Some companies have gone to great lengths with glass screens; closing toilets and lifts, but small businesses must do what it is able to comply with to secure the safety of its staff and customers.

5. Can you test your employees for Covid-19

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. This may be different for Keyworkers or those directly exposed to patients. If your employee consents you can set up testing facilities or perhaps pay or guide them towards testing sites, but how you store, who has access and use of this medical information needs to be considered carefully under the privacy and confidential polices.

If you as an employer want to create a new workplace policy that insists on this all we can say is this a very new legal space so there is not much concrete advice yet. However, an employer has a legal health and safety obligation to provide a reasonably safe place of work.  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 is 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 positive 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.

Can your employee claim against you if they contract the virus at work?

An Employer is only responsible if it has caused the condition. This means that the employee must prove, with medical evidence, that it was highly likely that they contracted the virus whilst at work, more so than any other place you have been, e.g. public transport and shops. The employee would need to show that their employer has either failed to put in reasonable health and safety measures like social distancing or failed to enforce them directly causing the infection. This is why a plan and policy are key for an employer to protect itself and be able to show it has taken as much effort as possible to protect its staff.

What Happens If an employee does not adhere to the policies.

If an employee is not adhering to the business policies then you as the employer may be able to dismiss them for a serious breach of health and safety and breach of contract or undertake disciplinary proceedings. Clear policies must be introduced, maintained and communicated so that if they are breached it is clear what you expected and by whom , you then follow your own disciplinary or dismissal policies to avoid any question of an unfair or abuse of process.

Does an Employer need to Provide PPE?

The Government are considering whether employees should wear masks on their return to work.

Employers have both a common law and statutory duty to ‘ensure, so far as reasonably practical’ the health and safety within a workplace. To breach this duty is both a criminal and civil offense so a risk assessment should consider this.

Employers will need to be aware of legislation relating to PPE in the wake of the COVID-19 pandemic. The PPE Regulation 1992 should now be at the forefront of all employers’ minds.

The moot point here will be what is ‘reasonably practical’. Specific PPE requirements and guidance has been published by the government and is available on their website. Not all industries will be required to provide PPE. However, it is common that social distancing, as a minimum, is adhered to wherever possible.

It will be on the employer to provide new and innovative ways to adapt to their workplace in line with current advice. A failure to adequality could so lead to civil and criminal charges.

6. Clean office spaces

We can also expect an increase in the level of cleaning in the offices to ensure that any potential sickness is reduced for staff and visitors. Businesses will be under scrutiny when they start bringing employees back to work and this will be focused on how they manage the health and wellbeing of their staff.

7. Reintroducing furloughed members of staff

In August the scheme is going to allow for bringing staff back to the office on a part-time basis. If you need to amend the furlough agreement or contract, make sure this is done in consultation with the employee, whilst staff handbook and policies don’t normally need consent and fall outside the contract.

Motivating staff during furlough and after as well as those continuing to work should be a key consideration for any employer that wants its team to pull together post-pandemic.

With a huge number of employees being furloughed across the UK – more than the Government anticipated – businesses will need to be aware that reintroducing those members of staff who were furloughed may feel out of touch as they have spent significant time out of their usual working patterns and outside company practice. Some time for them to settle in would be advised, perhaps a return to work interview and review of any training requirements.  If you can give them training whilst on furlough or have regular touch in calls this may help them feel less isolated and assists bring them back into the working environment.

Further those employees who have continued to work during this time may need additional support as they have helped hold up the business during a stressful time. Considerations for additional annual leave and/or “me” days might be necessary in order to maintain a motivated and health workforce.

We can help audit your contracts and policies; bring them in line with current government guidance and legislation; help you document your risk assessment and plans; communicate this to staff and customers and address any concerns, redundancies, grievances or otherwise.