COVID-19 - Employment law digest: returning to work – 11 May 2020

Government's latest announcement

The much-publicised and anticipated Government announcement regarding a possible easing of the lockdown restrictions was delivered by the Prime Minister at 19.00 yesterday (Sunday 10 May 2020).

There was the promise of more detail, which is scheduled to be unveiled in Parliament on Monday 11 May 2020, with an opportunity for the public to ask questions this evening. Until then, we have the following information:

What has changed?

Since the beginning of the lockdown, employees have been told that they should work from home if they can, and only leave their home to attend their workplace if they must. With effect from Monday 11 May 2020, the emphasis has changed – the Government has said that anyone who cannot work from home (for example, those in manufacturing or construction) should be actively encouraged to go to work.

However, public transport should be avoided if at all possible, by travelling to work by car, bicycle or on foot. The Prime Minister's announcement included reference to "new guidance for employers to make workplaces COVID-secure", but we have no details of when this may be released.

What may change?

The Government has set out the following "roadmap" for a further gradual easing of lockdown, the implementation dates and detail of which will depend on the "COVID Alert Level" (similar to the terror threat ratings) and the "R" rate (rate of reproduction of the virus).

  1. At the earliest by 1 June 2020, there may be a phased reopening of shops and the possible reintroduction of primary school attendance, beginning with Reception, Year 1 and Year 6. There is intimation that those in Year 10 and Year 12 of secondary education may also be back in school before the summer holidays.
  2. At the earliest by July 2020, there is a plan to reopen some of the hospitality industry and other public places, provided they are safe and enforce social distancing.

Initial reflections on the latest announcement

It is fairly clear that "actively encouraging" employees to attend the workplace where working from home is not possible is only directed at those sectors which have been permitted to remain open during the lockdown, such as businesses in the manufacturing and construction industry.

For those with jobs in the hospitality or high street retail sectors, the status quo will remain for now, until such time as the Government permits business to resume in these areas.

The difficulty with the phrase "actively encourage" is that it provides no clarity for employers as to whether this is merely a suggestion, or an instruction, to their employees, and does not indicate what options are available to them if such active encouragement does not yield the desired results.

What happens if an employee is "actively encouraged" to return to work, but does not do so, citing the increasing UK death toll and the risk of transmission in an enclosed environment as their rationale? Is the employer able to force a return to work, or initiate disciplinary action in the event of a no-show?

As discussed below, there are legal risks in knee-jerk reactions to such situations. Although very much uncharted territory, we consider that Employment Tribunals will have sympathy with employees who are reticent to return to the workplace, particularly when so little is known about the virus. We provide tips on trying to minimise any legal risk, and maximise employee engagement, later on in this article.

Looking to the future

In line with the Government's tentative predictions for easing the lockdown,, many employers are starting to plan for an eventuality in which they can at least commence a partial business re-opening. Given the amount of planning involved in such a move, proper organisation and preparation in this instance is key.

Those leading the way….

Several 'big names' decided to shut up shop when lockdown began, despite the fact that they operated in sectors which were permitted to remain open under the Government's rules. However, after over a month of closure, some are taking tentative steps towards getting back to business.

As of 30 April 2020, six branches of hardware store Wickes have re-opened. They are operating with reduced trading hours, and are only permitting a limited number of customers in the store at any one time. Social distancing is enforced by floor markers, Perspex screens have been installed at tills, hand sanitising stations are available for customer and staff use, and all shop floor staff will be provided with PPE (personal protective equipment).

House builder Devonshire has commenced a controlled reopening of some of its sites from early May, after a full-scale closure on 27 March. It is operating in accordance with guidelines from the Health & Safety Executive and has devised a specialised "COVID-19 procedure", in respect of which all of its site management team will be fully inducted.

Is there any guidance for working practices when lockdown is eased?

Currently, there is no published generic guidance, although the existence of such was mentioned in the Prime Minister's 10 May 2020 announcement. This is likely to be released to the public in the forthcoming days.

There is already guidance in place for the manufacturing sector, which was expressly permitted to continue to conduct operations by the Secretary of State for Business on 08 April 2020. The guidance, entitled 'Operating Safely in the Workplace', will nevertheless provide a good starting point for businesses in all sectors who are looking to return to work. It can be found here.

The Trades Union Congress (TUC) has recently published a report setting out the steps it wants the Government and employers to take to ensure a safe transition from lockdown. Amongst other things, it includes the suggestion that employers conduct a COVID-19 specific risk assessment before bringing employees back to work. Whilst it is unclear whether the Government will take this paper into account when deciding on its strategy, it provides a useful insight into the issues likely to be raised by employees.

A survey conducted by the TUC during April 2020 found that 41% of almost 800 people surveyed were worried about the health implications of returning to work. It is likely that a large proportion of an organisation's workforce may be sceptical about returning to the workplace and will be looking to their employer for reassurance that the appropriate measures have been put in place.

For those businesses in the retail sector, the British Retail Consortium has published guidance for retailers in respect of warehouse and distribution settings, as well as retail premises when these are permitted to re-open. The guidance can be found here.

Working practices checklist... minimising the risk

As discussed in our Employment Digest dated 27 April 2020, there are provisions of the Employment Rights Act 1996 which state that employees have a right not to be subjected to any detriment or dismissed on the ground that they refused to return to their place of work in circumstances where they reasonably believed there to be serious and imminent danger. Any dismissal in this context will be 'automatically unfair', and an employee will not require the usual two years' service in order to bring a claim. Such a claim might be accompanied by a whistleblowing detriment claim.

It follows that there is a risk of litigation where an employer takes management action against an employee who refuses to attend work due to the risk of contracting COVID-19. There is also the wider risk that employers may be subject to enforcement proceedings by the Health & Safety Executive for breach of their obligations to provide a safe working environment. A clear way of mitigating this risk is to ensure that as many precautionary practices as possible are implemented; certainly those as advised from time-to-time by the Government and Public Health England, but also additional measures as may be relevant for an employer's particular sector of work.

This is by no means exhaustive, but we have set out a checklist of possible considerations, below. We would recommend carrying out a risk assessment first in order to consider the practicalities and implications of our suggestions. If you employ or engage a health & safety professional, seek their input on the following:

  • Whether a full or only partial return to the workplace can be facilitated, whilst complying with social distancing requirements
  • Identify those employees who are vulnerable, and how/when they should return to the workplace (perhaps, where possible, allowing them to work at home)
  • How the workplace can be rearranged to comply with social distancing measures (for example, rearranging workstations and dividing up large floor areas with partitions)
  • Implementation of staggered start / finish times
  • Temporary ban on group lunches and after-work drinks
  • Temporary ban on team / group meetings and consideration of how these might otherwise be conducted (e.g. utilising technology used during lockdown)
  • Temporary ban on external visitors to the workplace (external meetings to continue to be conducted over Zoom / Microsoft Teams / Lifesize etc. where possible). If this is not possible, keep a log of all visitors for contact / tracing purposes
  • Rotate the number of groups of employees in the workplace at any one time (and assigning employees to specific groups to minimise risk of contamination)
  • Assign particular toilets and kitchen facilities to specific groups to minimise risk of contamination
  • If hot-desking is normal practice, avoid this and assign employees their own workstations
  • Encourage / require employees to use NHS tracing app or similar, once available
  • Ensure the contact details of employees and their emergency contacts are up-to- date
  • Consider the use of PPE, where applicable. Although the Government has not currently recommended the generic use of face masks, this may change in the coming days / weeks
  • Ensure hand sanitiser and anti-bacterial wipes are available at various points throughout the workplace (particularly at risk points such as printers) and require employees to undertake cleaning of workstations several times a day
  • Consider (if applicable) the use of Perspex screens for higher-traffic areas, reception staff etc.

Once the risk assessment has been undertaken, the drafting of a specialist COVID-19 staff policy would ensure that employees have clear guidelines for working safely.

Refusal to return to work… a practical take

We have discussed, both here and in our recent Employment Digest, the legal risks involved in taking action against an employee who refuses to return to work due to a risk of contracting Coronavirus (COVID-19). As set out above, a strict implementation of all possible precautionary measures should limit the risk of any detriment or dismissal claim from an employee against whom management action is taken as a result of refusing to attend work.

However, we are dealing with a virus about which even medical specialists know relatively little. The Government's lockdown measures have increased the palpable fear amongst the general public and, with the current death toll, employees' reservations about returning to an environment in which social distancing will be a challenge are understandable.

If all reasonable steps have been taken in respect of health & safety, but an employee still refuses to return to work, there are options outside formal disciplinary action. The consideration of other options might be particularly useful with a well-respected, long- standing employee whom an employer would wish to retain if at all possible. Where working from home is not viable, it could be suggested that the employee use some of their holiday entitlement, or take unpaid leave, during the period in which they do not wish to attend work. Of course, this is not a long-term solution, but the situation with regard to Coronavirus (COVID-19) may have improved sufficiently by the end of such holiday / unpaid leave, to enable the employee to return to work.

Workplace reintegration... which employees should return?

For many employers, any easing of the lockdown will facilitate a partial, rather than a full, reopening of their business in the short-term. With the Coronavirus Job Retention Scheme in place until the end of June, employers are likely to decide to un-furlough only part of their workforce in the initial phase. But how should that selection process take place?

For some businesses, the process will be straightforward, as entire departments will be required to return immediately (subject to any shielding requirements, below). For others, it may be the case that only a proportion of employees in certain areas are required, given a temporary reduction in the amount of work being carried out. This situation is rather less simple – some employees may be very keen to escape the confines of their home and return to work. Others may be less so.

It is clear that those employees who are shielding, in accordance with Government guidance and correspondence issued to them by the NHS, should remain at home until such time as a medical professional advises them that it is safe to leave. For those in the less vulnerable category (such as the over-70s and those with less acute health conditions), who have been advised to social distance, rather than shield, the situation is slightly less clear, as is the case for those who have childcare commitments, due to the closure of schools and childcare facilities.

Whilst employers might consider that excluding these individuals from any initial return-to-work process might be the considerate thing to do, they should avoid making generalised assumptions which, in themselves, could pose a risk of discrimination. It is likely that those with childcare responsibilities will need to remain at home during school closures, but it should not be assumed that this is the case.

In light of the above, a sensible first step might be to ask for volunteers to be un-furloughed and return to work. This minimises the risk of discrimination arising from generalised (if well-meaning) assumptions being made. It will give employees who wish to return the opportunity to do so. If sufficient volunteers come forward, there is no need to enforce a return on anyone. If employees do need to be required to return, then employers can be safer in the knowledge that they have given everyone an opportunity to return voluntarily, and have therefore not excluded individuals unintentionally by virtue of pre-conceptions.

Return to work and mental health

The last few weeks have been a struggle for many, and the change in environment, working patterns and caring responsibilities, alongside the worry surrounding the virus itself, have left a large number of people suffering with mental health issues, even those who had not previously suffered with symptoms.

Alongside this existing anxiety, a new wave of emotions may come with the prospect of returning to the "outside world", to a workplace in which social distancing cannot be guaranteed and the complications, such as commuting on public transport, that a return to work may bring. Some employees may have suffered bereavements during the lockdown, which will make a reunion with colleagues even more difficult.

With this in mind, it would be useful for employers to review their support packages, such as complimentary counselling or employee assistance programmes, and make sure that employees are aware of how to access them. If employers do not currently subscribe to any such programmes, and do not have the funds to do so at present, they could signpost their employees to any of the mental health charities, or the NHS website. Another option would be to appoint 'mental health first-aiders' – employees within the organisation who are happy to have confidential conversations with colleagues who are feeling vulnerable.

The future of flexibility... permanent working from home?

The recent weeks have shown a seismic shift in the way we work. Organisations with no working-from-home policy, whose cultures centred on 'presenteeism' and chats in the communal kitchen have, in a matter of days, shifted their entire operations online, to permanent remote working and 'virtual coffees over Zoom'. Many businesses doubted their IT infrastructure could cope but, aside from a few teething problems, it seems that office work has been brought successfully into the digital sphere.

In the longer term, we predict that many businesses will shift to remote working on a more permanent basis, particularly in areas of the country where office space is at a premium and the average commute is long. Savings in rent and increased productivity from employees can only be an advantage. The model has been trialled in the most testing of times – and it works.

However, other organisations may be less amenable to the shift. Undoubtedly, there are drawbacks to remote working. Junior members of staff learn most of their craft by listening to and observing more senior colleagues, something which cannot achieved as easily over video link. There may be less opportunity for the spontaneous sharing of ideas, than when sitting next to a colleague day-to-day, and it may be more difficult to foster the organisation's culture and collegiate atmosphere.

One thing seems certain – there is likely to be a large increase in the number of flexible working requests. Employees have seen that agile working can be successful in practice, and employers will, as a result, find it harder than ever before to justify a refusal of such a working pattern. Although the financial award in the Employment Tribunal for breach of the flexible working legislation is relatively low, the refusal of a request with a childcare or disability element comes with potential for uncapped compensation. Paper trails of decisions, and rationales for refusals, will become more important than ever.

Coronavirus (COVID-19) and redundancy

A sad, but perhaps inevitable, consequence of Coronavirus (COVID-19) is the clear impact that it will have on businesses, their revenue and, at the heart of it all, their employees. A large number of businesses are already making preliminary preparations for potential redundancies when the Government's Job Retention Scheme comes to an end.

Unfortunately, these redundancies are unlikely to be isolated pockets; rather, there are likely to be large-scale employee cuts as businesses try to keep trading in very uncertain economic times. Such widespread job losses are likely to engage collective redundancy obligations, which apply where 20 or more employees are proposed to be made redundant at one establishment within a period of 90 days or less. For between 20 and 99 redundancies, the statutory consultation period must be 30 days. For 100 or more redundancies, the minimum period is 45 days. If an employer does not recognise a trade union, and there are no other employee representatives already elected, an election process will need to be conducted prior to the start of the consultation period.

The latest iteration of the Government's guidance on the Coronavirus Job Retention Scheme has clarified that, whilst on furlough, employees who are union or non-union representatives may undertake duties involved in collective consultation. This will be of some comfort to employers, who will not have to un-furlough employee representatives in order to conduct collective consultation, and will be able to continue to claim 80% of their salary (or £2500, if lower) during this time.

Spotlight on Property… the move to a virtual office

Some businesses might already be considering the continuation of home working for the foreseeable future. But what does that mean for the leases entered into by these organisations in respect of expensive business premises, which are currently lying empty? Depending on the terms of the lease, there may be 'break clauses' which could be utilised to bring an early end to the arrangement. It is always worth having the lease reviewed by a specialist in order to understand all the options available.

If you require specialist advice in respect of your business premises arrangements, please contact Andrew Baines in Michelmores' Property Litigation team.

Coronavirus (COVID-19) testing and data protection

Testing for Coronavirus (COVID-19) is now available to all individuals classed as 'essential workers' with symptoms, as well as those who are symptomatic and carry out work which cannot be done from home (e.g. construction workers, shop workers and delivery drivers). The full list of essential workers is here, and includes those working in the NHS, social care staff, transport workers, education and childcare workers, and those individuals involved in the production and distribution of food, drink and essential goods.

Employers of essential workers are able to register and refer members of staff for tests. They can obtain a login for the official portal by emailing portalservicedesk@dhsc.gov.uk with the organisation name, nature of the organisation's business, the region, and names and email addresses of two users who will be responsible for uploading essential worker contact details. More information can be found here.

The test results received by the employer will constitute 'special category' (sensitive) personal data. Under the General Data Protection Regulation (GDPR – a hot topic alongside Brexit and COVID-19) an employer is entitled to process special category data where necessary to comply with their obligations under employment law, which includes ensuring the health, safety and welfare of their employees. However, this must be conducted in a necessary and proportionate manner.

Given that employers will have a clear legal basis for processing such data, they do not need to obtain consent, but the employee must be clearly informed that the data will be used to take decisions about their employment (such as sending them home to self-isolate), with whom the information may be shared, and that it will be retained on the employee's HR file for a period of time (which should be no longer than is necessary).

If an employee tests positive for Coronavirus (COVID-19) then their identity should not be shared with their colleagues as a matter of course, although generic information that there has been a confirmed case of the virus in the workplace may need to be shared. If it is considered necessary to share the name of the employee, we would advise that their consent be obtained in advance.

 [CONTENT CORRECT AS AT 11 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.