COVID-19 - Government's "plan to rebuild" 12 May 2020

Following the Prime Minister's address to the nation on Sunday 10 May 2020, the accompanying guidance detailing the Government's Coronavirus (COVID-19) "recovery strategy" was published at 14.00 yesterday (Monday 11 May 2020).

At 60 pages long, it's a substantial document. We have summarised the key points for employers, below.

Government Recovery Strategy: Step 1

Step 1 will be effective in England from Wednesday 13 May 2020.

Who should return to work?

For the foreseeable future, people should continue to work from home rather than at their normal physical workplace, wherever possible.

All workers who cannot work from home should travel to work if their workplace is open. This will only include sectors or industries which have been permitted to remain open during the lockdown, such as food production, construction, manufacturing and distribution. Those sectors, such as hospitality and non-essential retail, which were required to close from 23 March 2020, will need to remain shut until further notice.

The phrase "should travel to work" seems to have replaced the Prime Minister's earlier mantra that employees should be "actively encouraged" to return to work. Both are rather opaque, and further comment on travelling to work is provided below. However, neither changes the legal landscape of health and safety law and an employee's right to refuse to attend their place of work if it is not safe to do so.

We discuss this in our recent "Returning to work" digest. Certainly, a comprehensive risk assessment and a rigorous policy on cleanliness and social distancing will minimise the risk of any successful claims.

Workplace precautions

Workplaces should follow the new "COVID-19 Secure" guidelines. The recovery strategy states that these will be published later this week. However, late on Monday 11 May 2020, eight guidance documents were published, which are tailored to the following sectors / businesses:

  • Construction and other outdoor work.
  • Factories, plants and warehouses.
  • Work in homes.
  • Labs and research facilities.
  • Offices and contact centres.
  • Restaurants offering takeaway or delivery.
  • Shops and branches.
  • Work in vehicles.

It is unclear whether these constitute the "COVID-19 Secure" guidelines, or whether there is more to come. However, in the meantime, these are the only "roadmaps" available to employers. The full guidance documents can be found here. There are five key points which are common to all eight guidance notes, and should be implemented as soon as possible:

  1. Those employees who cannot work from home should return to work.
  2. A COVID-19 risk assessment should be carried out, in consultation with workers or trade unions.

The guidance requires that employees should be consulted during the risk assessment process, in order that appropriate workplace guidelines are put in place. Employers should publish the results of their risk assessments on their website, and all businesses with over 50 employees are "expected" to do so. It is not clear whether there will be any consequence for failing to adhere to this. Although there is an "expectation", it does not appear to be mandatory.

  1. Maintain social distancing of 2 metres, wherever possible.

Workplaces should be reconfigured in order to maintain a two metre distance between each employee. Particular pinch points should be avoided by staggering start times, creating one way walking systems, utilising all available entrances and exits, and changing seating / desk layouts.

  1. Where 2-metre social distancing is not possible, manage transmission risk.

This could be effected by installing barriers in shared spaces, ensuring employees are facing away from each other, or creating "fixed" shift patterns to minimise social contact.

  1. Reinforce cleaning processes.

Workplaces should be cleaned more frequently, particularly those high-contact objects such as door handles and keyboards. Handwashing / sanitising facilities should be installed at all entry and exit points. The guidance includes a downloadable notice, which the Government instructs employers to display in their workplace as an indication that they are following protocol.

The Government has indicated that the guidance is an important "first step", which will not provide every answer at this stage. Our recent "Returning to Work" digest suggests a large number of measures which could be adopted in order to minimise the risk of transmission of the virus.

Travelling to work

When travelling to work, all employees should avoid public transport wherever possible, and cycle, walk or drive. The Government will provide new statutory guidance surrounding the widening of pavements, the creation of "pop-up" cycle lanes and the closure of some roads to traffic, in order to encourage more people to choose alternative means of travelling to work.

It is recognised that, particularly in urban areas, public transport may be the only route to work. The Government has indicated that transport operators will need to follow the "COVID-19 Secure" guidelines (presumably, those relating to transport will be published later this week). How these will work in practice remains to be seen, particularly on modes of transport such as the Tube, where social distancing would be difficult, if not impossible.

Childcare / Schooling

Given the change in direction regarding those employees who cannot work from home, some had hoped that schools would return, even partially, to alleviate the possible childcare issues generated as a result. However, there is no immediate plan to reopen schools on a more general basis. As a compromise, the Government has clarified that paid childcare (e.g. nannies and childminders) is permitted subject to compliance with the "Staying safe outside your home" guidance.  It is hoped that this will enable more working parents to return to work.

The Government has stressed the importance of vulnerable children (including those with an Education, Health and Care plan) and the children of key workers attending school as is currently permitted. It is noted that a very small proportion of children who are vulnerable and/or the offspring of key workers are currently attending school in person, and the Government has asked that local authorities and schools urge more children in these categories to do so. However, this is not mandatory.

Employees showing symptoms of COVID-19

The recovery strategy makes clear that if anyone has symptoms of COVID-19, however mild, or lives in a household where someone has symptoms, they should not leave their house to go to work. Everyone in the household should self-isolate in accordance with the existing Government guidance.

Employees in the vulnerable / extremely vulnerable groups

The advice on this has not changed. Those individuals over 70, with pre-existing health conditions, or those who are pregnant, should continue to minimise contact with others outside their households (although they do not need to be shielded).

Those in the extremely vulnerable group (who should have received a letter from their GP or from the NHS) should continue to stay at home at all times and avoid any face-to-face contact – otherwise known as "shielding".

As a result, individuals falling into the above categories should continue to remain away from the workplace for the time being.

Government Recovery Strategy: Step 2

This will be brought into effect no earlier than Monday 1 June 2020. The precise date may be subject to review, depending on the most up-to-date assessment of the risk posed by the virus. However, changes will be announced at least 48 hours before coming into effect.

Phased return for schools

In our recent update we indicated that the Prime Minister's announcement included plans for primary school children in Reception, Year 1 and Year 6 to return to school, in smaller class sizes. The recovery strategy makes clear that the Government's ambition is for all primary school children to return to school for a month prior to the summer break. There may also be some "face-to-face" contact with secondary pupils in Years 10 and 12, although it is not clear whether this contact could take place remotely, over a video conferencing platform.

The recovery strategy states that the Department of Education will engage closely with schools and early years providers to help facilitate the Government's measures. As yet, we have no detail as to how schools should achieve social distancing in such challenging environments, particularly when the pupils set to return are some of the youngest in educational settings.

Opening of non-essential retail

Once again, this will be subject to demonstrating compliance with the "COVID-19 Secure" guidelines. For now, the only available document is the "shops and branches" guidance referred to above. The Government has indicated that it will issue further guidance on its intended approach to a phased return, including which businesses will be covered in each phase, and the timeframes involved.

Government Recovery Strategy: Step 3

This will be brought into effect no earlier than 4 July 2020. Again, the precise date may be subject to review, depending on the most up-to-date assessment of the risk posed by the virus.

Reopening of remaining sectors

This third phase includes a planned reopening of at least some of the following: hairdressers, beauty salons, pubs, places of worship and cinemas. Once again, this will be subject to compliance with the "COVID-19 Secure" guidelines.

The Government's plan is to "pilot" the reopening of such businesses, in order to test their ability to adapt to the new guidelines, as well as following closely the effects of reopening similar businesses elsewhere across the globe.

[CONTENT CORRECT AS AT 12 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.