Returning to work – What are the implications for employers?

Please contact Gill by email, gill@bradleyhayneslaw.co.uk or on 01905 900919 if you need any employment or HR advice on these or any other issues related to the COVID-19 pandemic.

On 11 May 2020, the government published its roadmap for recovery detailing its phased response to dealing with the virus. We are now seeing a slow but phased return of businesses to the workplace but what are the implications for employers? The CIPD (Chartered Institute of Personnel & Development) is urging businesses to ensure they can meet three key tests before bringing their employees back to the workplace:

• “Is it essential? If people can continue to work from home they must continue to do that for the foreseeable future. If they cannot work from home, is their work deemed essential or could the business continue to use the Government’s Job Retention Scheme for longer, giving them the time needed to put safety measures and clear employee guidance and consultation in place?

• Is it sufficiently safe? Employers have a duty of care to identify and manage risks to ensure that the workplace is sufficiently safe to return to. Employers should take their time with gradual returns to work to test health and safety measures in practice and ensure they can work with larger numbers before encouraging more of their workforce back.

• Is it mutually agreed? It’s vital that there is a clear dialogue between employers and their people so concerns, such as commuting by public transport, can be raised and individuals needs and worries taken into account. There will need to be flexibility on both sides to accommodate different working times or schedules as ways of managing some of these issues.”

If a workplace is open, employers will have to follow the new working safely guidance provided by the government which has sector specific information. https://www.gov.uk/guidance/working-safely-during-coronavirus-covid-19

Returning to the workplace is raising a lot of employment and HR issues and here Gill Wooldridge considers some of the frequently asked questions by employers.

How much notice should an employer give employees that they are required to return to the workplace following furlough?

If no notice period was specified in the furlough agreement then the employer should aim to give reasonable notice depending on the particular circumstances of both the employer and the employee.

The Acas guidance states that there is no minimum period for furlough, but employers should talk to staff about any plans to end furlough as early as possible and encourage staff to raise any concerns or problems about returning to work. For example, how they would travel to work or should they work from home.

Where an employer intends to change employees’ terms of employment on return from furlough on either a permanent or temporary basis, it should take into account any time required to consult with employees and employee representatives regarding the proposed changes in order to seek to reach agreement.

The Acas guidance advises that, wherever possible, employers should speak to staff before making a decision or putting plans in writing, and that this can help staff understand, and feel included in, decisions.

What information should an employer provide when it notifies an employee that their furlough period is due to end?

In addition to confirming the date the employer wishes the employee to return to work, employers should consider providing information on such things as:

• The steps the employer has or is taking to ensure that it is safe for employees to return to work in the workplace. Has a risk assessment been carried out and do employees understand all the safety related measures that have been put in place?
• Potential temporary or permanent contractual changes which the employer is required to impose due to government restrictions. For example, different working hours and break times, changes to job descriptions/duties and mobility clauses.

If there is a phased return to work from furlough, how should an employer select which employees should return ahead of others?

The Acas guidance states that employers should regularly review furlough agreements to decide when to bring furloughed staff back to work. Employers should consider, for example:

• Which job roles and skills are needed in the workplace.
• If all furloughed staff are needed back at the same time.
• If any staff might be kept on furlough because they’re temporarily unable to work, for example if they’re caring for someone or are shielding.

When selecting which employees to return to work from furlough and which employees to keep on furlough, an employer should ensure that no discriminatory criteria are applied for example keeping a pregnant employee on furlough to avoid health and safety obligations towards her.

Can employers lawfully conduct temperature checks on employees?

The ICO Workplace testing guidance states that, as long as there is a good reason for doing so, employers should be able to carry out health testing on employees as data protection law allows employers to take the necessary steps to keep their employees and the public safe during the pandemic. However, employers must handle its employees’ personal data with care and in line with their data protection policy.

Employers should consider the testing options available, to ensure that they are only collecting results that are necessary and proportionate. Employers will need to be able to demonstrate their reason for testing employees and obtaining the results from tests.

Can an employee be dismissed or disciplined if they refuse to work on health and safety grounds?

It is possible that an employee’s refusal to attend work due to a belief that they will be at risk of contracting COVID-19 could be protected under section 100 of the employment rights act 1996.  This legislation protects employees from dismissal for health and safety reasons and is one of the automatically unfair reasons for dismissal.  If employees have a reasonable belief that attending work would put them in serious and imminent danger, then they may be protected from dismissal.

This underlines the importance of effective communication with employees in terms of the measures taken by the employer to minimise the risk. It would also be dependent on the current status of the pandemic (the serious and imminent danger test may be less likely to be met where the level of cases has dropped significantly). The employees own health may also be relevant for example an employee with a suppressed immune system would be more likely to be in serious and imminent danger.

Can an employee be dismissed or disciplined if they refuse to attend work because of health and safety concerns about their commute?

It is less clear whether an employee who reasonably believes that their commute to work represents such a danger is entitled to the same protection. In many areas it will be difficult to maintain the required level of social distancing on public transport necessary to minimise the risk of contracting COVID-19. An employee may have a reasonable belief that their commute represents a serious and imminent danger but the employer couldn’t reasonably expect to avert the danger.  If an employee can’t continue to work at home, it would be prudent to consider whether there are alternative means of commuting to work, or if the employer could allow flexibility to travel at off-peak times then any danger may, depending on the circumstances, be reduced.

Do employees have the right to be notified if colleague/customer develops the virus?

The Data Protection Act 2018 defines information about an employee’s health as a “special category of personal data”.

Employees must be notified of the infection risk as soon as possible but the identity of the individual should not be disclosed if possible.  The employer should not provide more information than is necessary but should advise that an employee who has been in the workplace has been infected and that appropriate precautions should be taken.

Who should remain at home and not return to the workplace?

Any employees who are advised to stay at home under existing government guidance. This includes anyone who has symptoms of COVID-19, anyone in a household with someone who has symptoms and anyone who is advised to self-isolate in accordance with the government’s test and trace strategy.  They would be treated as incapable of work for statutory sick pay (SSP) purposes. In addition anyone who is extremely vulnerable (shielding) is strongly advised not to work outside of home or can be treated as incapable of work for SSP purposes. There are other situations which should be treated with care,  such as parents with children who are home schooling, employees who live within someone who is shielding and employees suffering with anxiety over returning to the workplace.

Please contact Gill by email, gill@bradleyhayneslaw.co.uk or on 01905 900919 if you need any employment or HR advice on these or any other issues related to the COVID-19 pandemic.