Plans to re-open workplaces - tough decisions for employers

11 May 2020

The Prime Minister announced yesterday evening that staff who cannot work from home are now 'encouraged' to attend work.  Although this change of emphasis will be welcome news for many businesses, employers need to tread carefully – not least because the detailed guidance on infection control measures for workplaces hasn't been published yet.   The detailed guidance is expected at 2pm today, with sector-specific guidance due to be published tomorrow. 

Employers need to bear in mind that neither the Prime Minister's announcement nor the revised guidance alters their legal duties under health and safety and employment law. Employees and workers have strong protection against being dismissed or treated detrimentally on certain health and safety-related grounds, and because COVID-19 is more likely to affect certain groups (such as older, pregnant or certain disabled workers), there is also the risk of discrimination claims to bear in mind.   Trade unions have already expressed concerns about members returning to work and it has the potential to become a major employee relations issue.  Before employers start instructing staff to attend work, there are some key steps they should consider to reduce the risk of costly and time-consuming disputes. 

Although businesses will be keen to move on from lockdown, the plans could create a host of legal and employee relations issues for employers. 

The devil in the detail

Employees who can work from home should continue to do so - so working from home will continue to be the norm for many office workers.    For those employers who need to re-open workplaces, the guidance will recommend certain protective measures, rather than setting out definitive rules - so it is up to employers to decide what arrangements are needed in individual workplaces, and employers (and their insurers) will bear the risk of claims.   Careful risk assessment will be essential, together with a careful evaluation of how social distancing measures can be implemented in the workplace.

Employers will need to carry out a coronavirus-specific risk assessment and monitor the physical and mental health both of employees in the workplace and those working from home.   This appears sensible - and most employers are alive to these issues already.  However, employers will also need to consider whether consultation obligations under the Health and Safety (Consultation with Employees) Regulations 1996 are engaged.  Although these are less prescriptive than the collective redundancy consultation rules (for example, they don't stipulate a minimum consultation period), they potentially add a further layer of complexity. 

There is little detail on provision of protective equipment (such as face-masks).  Such equipment has been difficult even for the NHS to obtain.     Providing defective equipment may lead to negligence claims against the employer, so a robust system for obtaining necessary equipment will be essential.

What happens if staff refuse to return to work?

Although this could potentially be treated as a disciplinary matter,  employers will need to tread very carefully.  Employees are protected against being dismissed or subjected to a detriment for certain health and safety-related reasons - such dismissals are automatically unfair and, unlike ordinary unfair dismissal claims, the compensation for such claims is uncapped.  There are also potential discrimination issues, since staff who are medically vulnerable to coronavirus, pregnant or older will potentially have good reasons for wanting to avoid public transport and physical workplaces.   Likewise, many working parents will still have children at home, as schools and nurseries will open from 1 June at the earliest and then only gradually.  Some employers may wish to keep such staff on furlough - but this depends on whether the furlough scheme extended and in what form, as it is anticipated that plans to wind it down from July will be announced shortly.

The times they are a-changing...

Many staff have contractually-set start and finish times. Changing these will require employees' agreement (and could require collective consultation) and deciding who should be required to start early/later will require difficult decisions balancing business needs against employees' personal circumstances.   If school and childcare start times are staggered to reduce infection risks in those settings, that will have an impact on employees' willingness and ability to vary their own hours. 

Staff who are particularly vulnerable to the virus may need to be redeployed into another, safer role if they can't work from home - again, this would require individual consultation and agreement.  

Businesses will need to consider carefully whether they want to re-open workplaces and how this can be implemented.  For specialist advice, please contact Jane Amphlett or another member of the Employment team.

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