COVID-19 – Employment law digest – 18 May 2020
Update on returning to work processes
Returning to work, and what that might look like, has been the topic of the nation during this past week. Following the Government's announcement of the possible "roadmap" out of lockdown, and the subsequent publication of the "recovery strategy", employers have been working out how to do business in this new, socially-distanced world.
Initial "recovery strategy"
In our recent update regarding the "recovery strategy", we set out the Government's principles in providing a "safe" workplace, which were common to all eight of the COVID-19 Secure guidance documents for different sectors (NB there is now an additional publication directed at the transport sector). In summary, these were as follows:
- Employees should work from home where they can, but employees who cannot work from home should return to work (obviously, this latter point would only apply to sectors currently permitted to open by the Government).
- A COVID-19 risk assessment should be carried out, with involvement from workers/trade unions.
- Social distancing of two metres should be maintained, wherever possible.
- Where two-metre social distancing is not possible, transmission risk should be managed by, for example, installing physical barriers.
- Cleaning processes should be more rigorous and more frequent, particularly in respect of high-contact objects such as door handles and printers.
The initial guidance which accompanied the "recovery strategy" is fairly basic in its detail. However, as we have seen with the guidance regarding the furloughing scheme, the Government's approach appears to be the publication of a high-level, fairly broad-brush initial document, followed by more detail at a later date.
Publication of further guidance
Over the past week, the Government has provided further information to assist employers in their return strategy. The "guidance for employers and businesses on Coronavirus (COVID-19)" was updated on Friday 15 May 2020. Whilst some of this guidance has been in place since the start of the crisis, in order to help those employers who remained open and operational, it has been updated to reflect the wider cross-section of employees who may now be returning to work. The Government's "good practice" checklist contains the following recommendations:
- Keep all employees updated on actions being taken to reduce risks of exposure to Coronavirus (COVID-19) in the workplace.
- Ensure employees who are in a vulnerable group (such as those who are pregnant, over 70, or with certain pre-existing health conditions) are following social distancing practices.
- Ensure employees who are in the extremely vulnerable group (such as those with certain cancers) are shielding and are supported to stay at home. We discussed in our update of 16 April 2020 that there is some inconsistency between the guidance, which states that shielded employees can be furloughed, and the Treasury Direction, which implies that shielded employees must first exhaust their entitlement to Statutory Sick Pay. Whilst the position is by no means clear, we would suggest that the Treasury Direction would take precedence over the guidance.
- Make sure managers know how to spot symptoms of the virus, and decide on a company-wide action plan to deal with a situation where someone at work is suspected of being infected. At present, the Government guidance states that those who develop symptoms whilst at work should be sent home as quickly as possible. However, the current advice is that it is not necessary to close the workplace or send all staff home unless Government policy changes. Employers are advised to keep monitoring the Government response page for the latest details.
- Ensure there are a variety of easily accessible places around the building for staff to wash/sanitise their hands. If possible, provide personal bottles of hand sanitiser for all employees, along with tissues, so that they can "catch, kill and bin" any coughs or sneezes.
- Make regular announcements to remind staff to follow social distancing advice and wash their hands regularly.
- Encourage the use of digital and remote transfers of material where possible, rather than paper format, such as using e-forms and e-banking.
- Use floor markings to delineate the required two-metre distance, particularly in those areas which would usually become crowded.
- Where it is not possible to remain two metres apart, staff should work side-by-side or facing away from each other, rather than face-to-face.
- Where face-to-face contact is essential, this should be kept to 15 minutes or less, wherever possible.
- As much as possible, keep teams of workers together (i.e. have a fixed rota of staff which remains the same), and keep teams as small as possible.
- Place Plexiglas barriers at points of regular interaction (such as reception areas).
- In terms of staff canteens, staff should be encouraged to bring their own food. Where there are no practical alternatives, meal times should be staggered to avoid overcrowding, and the social distancing and cleanliness points above should be observed.
Notwithstanding the list of suggestions proffered by the Government to ensure safety in the workplace, the Health and Safety Executive (HSE) has been clear that businesses which cannot enforce adequate measures to protect their employees should stay shut. Sarah Albon, Chief Executive of the HSE, stated that companies which could not take adequate steps to minimise the risk of spreading the virus should "individually not open".
As discussed in our "Return to work" digest, employers not only have to ensure compliance with Government guidelines, but have to ensure that they are adequately discharging their duty of care, whilst being mindful of employees' rights to remain away from a workplace if they perceive there to be serious and imminent danger (ss44 and 100 Employment Rights Act 1996).
Some practical suggestions
Our view is that the more you can engage with employees about the potential measures you are taking to make their workplace safe, the less likely you are to face significant push-back. In addition, it is important to consider what will work for your business – this is not necessarily a one-size-fits-all approach. Some creative thinking will go a long way, and we have seen many of our clients and contacts devise inventive ways of ensuring safety in a COVID-19 world. We set out a selection, below:
- Use of thermal imaging cameras at staff entrances, to track temperatures.
- Installation of a "click-and-collect" service for the café, ensuring the transaction does not involve the use of physical paper or money, with staggered times for collection.
- Removal of all fabric communal seating, swapping to plastic or leather surfaces which are easy to keep clean.
- A "one-in-one-out" system for toilet facilities, with an automatic disinfectant spray dispenser installed to clean in between uses.
- Adaptation of internal doors to those with automatic sensors, rather than manual handles.
- Provision of "stylus" pens for every employee, so that there is no need to touch the printer display.
- Temporary removal of access to shower facilities, but providing large face / body wipes for those cycling to work.
Now more than ever, it might be difficult for businesses to find funds to implement some of the more costly measures suggested, above. Others might wonder whether it is proportionate action to take given that the prevalence of Coronavirus (COVID-19) will, we hope, be minimised within the year. If it is possible to implement these more permanent measures, we would suggest that it is a sound investment to do so.
Whilst Coronavirus (COVID-19) may be brought under control in the medium term, the fact that we have suffered such a pandemic in the first place demonstrates that there is the possibility that something similar will happen again. The key for businesses going forward might well be to "future-proof" themselves against another "attack" of this kind; something for which, unlike terrorism or cyber security, the business world had not really prepared. Even if we are lucky enough to escape a similar crisis in the future, think about the productivity which is lost each year through the common cold. Limiting the spread through more stringent workplace practices will only be of benefit in the long term.
COVID-19 Ministerial taskforces
It was announced on Wednesday 13 May 2020 that five, ministerial-led taskforces have been established to develop work safety guidelines for those sectors which are likely to be the last to re-open – pubs and restaurants, non-essential retail, recreation and leisure (including tourism), places of worship and international aviation. These taskforces have been set up to ensure that the requisite consideration is given to the very specific challenges that these sectors will face in re-opening.
We will update you with developments.
Twitter allows indefinite working from home
Last Wednesday, 14 May 2020, Twitter announced that it would allow its employees to work from home "forever", even once the lockdown measures are eased fully. The social media platform said that widespread working from home during the pandemic had been a resounding success. It did, however, indicate that employees would be permitted to return to the office once it reopens, if that was their preference.
The announcement follows those from Google and Facebook, both of which have stated that their staff can work from home until the end of the year.
Experts have commented that the pandemic has highlighted the benefits to employers of flexible working arrangements, many of which were reticent to allow their employees to work from home until Coronavirus (COVID-19) forced their hand. There have been widespread reports of an increase in productivity amongst those workforces which are now operating primarily from home.
Spotlight on… small businesses
On 27 April 2020, Chancellor Rishi Sunak announced a new 100% Government-backed loan scheme for small businesses.
The "Bounce Back" scheme went live on 4 May 2020, and small businesses will be able to apply for loans of between £2,000 and £50,000. The loans will be interest-free for the first 12 months, and will be provided by mainstream lenders.
In case you missed it…
With the number of new announcements issued by the Government last week, it would be easy to miss some of the updates. We provide a round-up of the latest news items, below.
Extension to Job Retention Scheme
On 12 May 2020, Chancellor Rishi Sunak announced that the Government's Job Retention Scheme (the Scheme) will continue to operate until October 2020.
At present, details of how the Scheme will operate going forward are very scant. However, it appears that the rules of the Scheme as they stand will remain in place until the end of July 2020. After this point, there are plans to allow "greater flexibility", including the introduction of a "partial furlough" category, where employees will be able to return to work part-time, whilst continuing to be furloughed for the remainder of their normal hours. Crucially, it seems that, from August 2020 onwards, the Government will be looking to employers to foot at least some of the payroll bill. It has been intimated that at least 50% of wages will continue to be reclaimable through the Scheme, but the Government is looking to employers "to share the costs of paying people's salaries". For employers in sectors which have received little to no income so far this year (such as the holiday and leisure industry, due to its seasonal nature), it will be difficult, if not impossible, to find the cash to contribute in the way that the Government envisages.
We await further details in respect of the new iteration of the Scheme, which should be released by the end of May.
Annual Leave and Furlough
Employers may now require employees to take holiday whilst on furlough
The interaction between furlough and annual leave is something which has not been afforded particular clarity by the Government since the Coronavirus Job Retention Scheme (the Scheme) began.
The Scheme guidance had seen multiple iterations before we had confirmation that employees were permitted to take holiday during a period of furlough. During any such holiday taken, employers would need to "top up" the 80% Government grant to ensure that employees' normal holiday pay was paid throughout. This option was attractive to some employees, given that they would receive full pay during the holiday period.
However, others preferred to hedge their bets, saving their accrued holiday entitlement for a time later in the year when the travel industry might reopen, rather than using annual leave to continue to sit in their homes whilst on furlough.
This raised the question of whether employers could compel their employees to take annual leave during furlough, a question on which, until now, the Government has refused to be drawn. Some employees were forging through the holiday year with the majority of their annual leave entitlement intact. This could cause huge operational difficulties upon a return to normal business levels, where (particularly with a reopening of the travel industry), employees might be clamouring to take 100% of their leave in 20% of the usual time.
EU-derived provisions relating to holiday
The widely-held view was that employers could not compel their employees to take annual leave during furlough, as it conflicted expressly with the EU-derived provisions relating to holiday. These require that the primary purpose of the leave be "'rest, play and away" – i.e. a period of rest and relaxation away from the place of work.
It followed that, if an employee was placed on furlough which, although likely to be subject to consent, was not necessarily a choice made willingly by the employee, and was akin to a "lay-off" situation as a result of the current crisis, this was not consistent with the spirit of the annual leave provisions.
However, the Government has now sought to clarify the position. In what is likely to be a policy decision, rather than a strict interpretation of employment legislation, it has issued guidance entitled "Holiday entitlement and pay during Coronavirus (COVID-19)". This states:
"If an employer requires a worker to take holiday whilst on furlough, the employer should consider whether any restrictions the worker is under, such as the need to socially distance or self-isolate, would prevent the worker from resting, relaxing and enjoying leisure time, which is the fundamental purpose of holiday."
This is perhaps not as clear as employers would have hoped. Whilst it now seems unequivocal that there is a right for employers to require employees to take holiday ("if an employer requires a worker to take holiday whilst on furlough…"), this is qualified by the words "the employer should consider whether any restrictions…would prevent the worker from…enjoying…the fundamental purpose of holiday".
What are the practical implications?
This seems to suggest that, where an employee cannot properly utilise their annual leave in the usual way, the employer may not be able to force them to take such leave. The guidance states expressly that social distancing might be a factor in this decision. As this is something that the entire population is likely to need to continue to observe for some time, it is unclear how any employees will be able to enjoy the "fundamental purpose" of holiday and, by implication, the precise circumstances in which employers will be able to impose it.
The guidance does comment that furloughed employees are unlikely to need to take advantage of the recent expansion of the leave carry-over provisions (where it has not been reasonably practicable for an employee to take some or all of the EU-derived 4 weeks' holiday due to the COVID-19 pandemic.it can be carried forward into the following two leave years). This is because they will "be able to take it during the furlough period".
However, this does not give extra weight or clarification to the ability of employers to compel their employees to take annual leave during furlough, as this could relate to voluntary leave only. All that the guidance does make certain is that it would not be reasonably practicable for an employee to take annual leave during furlough where, due to cash flow issues, the employer is unable to fund the "top-up" in order for the employee to receive their normal full holiday pay.
What approach should employers take now?
Given that employers are likely to want to enforce the taking of annual leave in order to avoid future operational issues, we would suggest utilising a broad interpretation of the guidance to facilitate this. It is likely that the Government's intention was to give employers as much flexibility as possible, although the communication has been somewhat muddled.
However, employers should be alive to the fact that employees may use the contradictory elements of the guidance to contest any unilateral imposition of annual leave. From a financial perspective, given that they will have been paid their full, normal holiday pay, there will be no monetary loss for the employer to worry about.
Having said that, the action may cause wider staff engagement issues, so any instruction to take holiday during furlough should be dealt with sensitively. There may be discontent regarding the lack of clarity and, as with previous guidance, the Government may bow to the pressure to publish revised guidelines in the coming weeks.
[CONTENT CORRECT AS AT 18 MAY 2020]
If you would like to discuss any of the issues raised in this briefing or have other concerns about the impact of Coronavirus, please contact Rachael Lloyd, James Baker or Andrew Tobey in Michelmores' Employment team.
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This article is for information purposes only and is not a substitute for legal advice and should not be relied upon as such. Please contact our specialist lawyers to discuss any issues you are facing.