As people return to work, what are the employment law issues facing employers? What policies should be in place to protect employee welfare? Award-winning lawyer and founder of A City Law Firm, Karen Holden, provides her legal insight and advice.
As the phased return to normality is likely to be rolled out over a few months, employers are going to have different needs and requirements in how to restart operations. The timescale by which they can do so will depend on the industry they are in. Similarly, employees will have their considerations and mixed feelings about returning to work, with childcare, transportation and health concerns front of mind.
In some cases, employers and employees may wish to remain working at home for productivity. Also, to enable social distancing for an extended period. Each employer’s management of this will need to take into account its operational needs together with the law and government guidance on how employees can return to work safely.
As employment law specialists, we are being inundated with questions about the return to work. So, what do you need before asking an employee back to the office?
Can an employee be forced to return to work? What if they are not comfortable to do so? On what basis can they refuse to go to work?
The government has recently advised people to go back to work only if they cannot work from home. This may change again with updated announcements. Employers should realistically undertake a Covid-19 specific risk assessment in respect of their employees returning to work.
Employers do have a legal health and safety obligation. They must ensure they are operating effective social distancing measures within the workplace. If they have not, employees have a right not to attend their workplace if there is a reasonable belief that doing so would pose a ‘serious and imminent threat’.
If an employee decides to not go back to work for this reason, they can put in a grievance to protect their employment rights and help to stop an unfair dismissal. The risk assessment will govern the business needs vs safety. However, staff must be treated fair and non-discriminatory. We strongly advise that staff are consulted and discussions take place as to their needs to avoid claims and also to motivate staff.
If you are still home-schooling or have no child care options, on what basis can you request flexible working or remain working from home?
Some workplaces will offer flexibility and on-going home working to their employees. The first port of call should be a discussion between staff and their line manager to try and come to an arrangement. Employees who have been employed for more than 26 weeks may request flexible working arrangements with their employers. This is a statutory right and the employer must deal with the request in a reasonable time frame.
There may be a greater need for flexible working so that you can cover childcare and/or home-schooling. Since the government has suggested varying start/finish times in the phased return to work, it is a practical and sensible solution for both employee and employer.
Requests must be given due consideration. An employer cannot discriminate when giving a decision but ordinarily it is not duty-bound to agree to this. However, these are not normal circumstances, so how the Tribunals may view these cases as they come through will be enlightening. More information is available here on the government’s website.
While the current remote working conditions may appear a temporary fix to help businesses continue operations during the outbreak of coronavirus and will eventually get back to standard working practice, some employees will likely want to continue working remotely. It is also likely employers will wish for staff to remain doing so to help with the staggered return to work plan. Or, for it to reduce office space requirements.
Consultations can take place about how remote working could continue, for how long, and for whom. But, the employer will need to be careful to offer this to staff in a non-discriminatory way, which is perceived as fair to all staff. It will also need to ensure it has updated work at home, GDPR, and health assessment policies in place.
Furlough
The scheme requires employees to be furlough for a minimum of three weeks. If an employer wants to extend the period, they will need staff consent to vary the agreement. From July, the furlough scheme allowed employers to bring back employees on a part-time basis to aid in the transition back to normal working life.
Usually, staff policies or handbooks are outside the employment contract so can be amended without consent and simply communicated. Staff should be informed and should review these during this period as they will be obliged to follow these procedures. Motivating staff during furlough and after, as well as those continuing to work, should be a key consideration for any employer that wants its team to pull together post-pandemic.
With a huge number of employees being furloughed across the UK – more than the government anticipated – businesses will need to be aware when reintroducing those members of staff that they may feel out of touch. They have spent significant time out of their usual working patterns and outside company practice.
Some time for them to settle in would be advisable. Perhaps a return to work interview and review of any training requirements? If you can give them training whilst on furlough or have regular touch in calls this may help them feel less isolated and assist in bringing them back into the working environment.
Furthermore, those employees who have continued to work during this time may need additional support. They have helped hold up the business during a stressful time. Considerations for additional annual leave and/or “me” days might be necessary to maintain a motivated and healthy workforce.
Skills and re-training
The golden rule of the current job retention scheme is that an employee may not provide services to, nor generate income for the employer. They may, however, undertake training. For instance, online training courses to keep up their skills. You must be paid at least the National Minimum Wage for the period you are training.
Training whilst on furlough should be reasonable, especially if your employer is contributing to the cost. Development of skills that will assist personal growth or to learn new aspects of the business would likely be the best options.
If staff are worried about receiving training, they should speak to their employer and this should be encouraged. You may also wish to check your employment contract to see how it deals with any matters of training. Your employer may be responsible for re-training if your employment contract covers this. Or, if you are a member of a professional body who has to complete certain hours of training.
When returning to work, your employer should ideally conduct a ‘return to work interview’. During this interview, re-training and other training issues should be brought up.
Will an employer be able to force an employee to take a Covid-19 test before returning to work?
It is unlikely that an employment contract would be drafted in a blanket way in which to force employees to take any such test. If an employer creates a new workplace policy that insists on this, firstly it will be impractical due to the reliability of tests, availability, and how employees obtain such tests. It will also open up concerns of confidentiality and discrimination actions.
This is a very new legal space so there is not much concrete advice yet. However, an employer has a legal health and safety obligation to provide a reasonably safe place of work. Employers should set up policies within their organisations incorporating testing.
For instance, a company may, if an employee shows symptoms, require them to leave the office immediately and not return until they have been tested. If that test is positive, the employer would then have to take measures to protect the rest of the workforce. This may include sending home all people who have had contact with the positive employee.
Not all businesses are the same. All employers must take substantial efforts to remain up to date with government and public health advice when deciding the best policies for them and take advice to ensure it’s regulated in a confidential and non-discriminatory way.
If you contract the virus at work, is your employer responsible?
An employer is only responsible if they cause your condition. This means that the employee must prove, with medical evidence, that it was highly likely they contracted the virus whilst at work; more so than any other place they have been. For example, public transport and shops.
The employee would need to consider if their employer has put in reasonable health and safety measures like social distancing. This is why a plan and policy are key for an employer to protect itself and be able to show it has taken as much effort as possible to protect its staff.
Whilst not impossible, it would be difficult to show that the virus was contracted whilst at work due to the huge amount of people contracting the illness. If the employee could show this, then they would need to consider bringing a personal injury claim against their employer.
If you are showing symptoms and come to work and infect other employees, who is responsible?
Law enforcement has been seen to be very strict on people intentionally passing on the virus through overt acts of coughing. People have a duty to protect themselves as well and not to be reckless – and this extends to their workplace.
If staff are showing symptoms it would be best to notify the employer and self-isolate before returning to the workplace. If you knowingly and willingly return to the office with such symptoms your employer can bring disciplinary proceedings. The employer may suspend you from work or even issue disciplinary. Equally, it may dismiss you if you have knowingly breached its policies on health and safety.
Likewise, an employer also has a duty of care towards its staff and other employees. If staff are showing symptoms, they must take action to protect others in the workplace. This would include sending the person home and likely all those who have been in contact with them. If they are not appearing to action a plan or policy or take action, an employer could be held vicariously liable. There can be both criminal and civil liability in terms of passing on infectious diseases.
What happens If an employee does not carry out social distancing? Or doesn’t follow the employees’ back to work policy?
If an employee is not adhering to the new business policies or government instructions then the employer may be able to dismiss them for a serious breach of health and safety and breach of contract. Clear policies must be introduced, maintained and communicated.
Is an employer required to provide PPE?
Employers have both a common law and statutory duty to ‘ensure, so far as reasonably practical’, the health and safety within a workplace. To breach this duty is both a criminal and civil offence. Employers will need to be aware of legislation relating to PPE in the wake of the Covid-19 pandemic. The PPE Regulation 1992 should now be at the forefront of all employers’ minds.
The moot point here will be what is ‘reasonably practical’. Employers should all undertake Covid-specific risk assessments. Plus, ensure they have policies in place and provide relevant training. Specific PPE requirements and guidance has been published by the government and is available on its website. Not all industries will have to provide PPE. However, it is common that social distancing, as a minimum, is adhered to wherever possible.
It will be on the employer to provide new and innovative ways to adapt its workplace in line with current advice. The HSE may perform spot checks on employers to ensure they are adhering to the guidance. A failure to adequately do so could lead to civil and criminal charges.
What would you expect an employer to be considering in the risk assessment and plans?
Staggering work times and return to work
As the UK government will want to significantly curb the number of people on public transport at one time, it will likely suggest employees who have to attend the office/workplace do so with staggered work times or days.
Staff could do two days on and three days off and office share with other staff to enable social distancing as well as vary their work operating times. This can be done, but employees need to be consulted and treated fairly as plans are put into action.
The hope is this degree of flexibility will have a positive impact on productivity. Some people work better in the morning and others later in the afternoon and evening. By staggering the work times of employees, business owners may see an increase in the volume of work produced. Also, a happier workforce and potentially personnel to cover a longer period of the day to reach clients and customers.
Social distancing in the office
Social distancing is here to stay for a while. Employers are going to need to consider how employees get to work and operate safely. Employers will need to carry out a risk assessment, update their policies, and also convey this to their employees in a clear manner. We also strongly suggest employees receive contact details and a forum to have the opportunity to discuss any concerns they may have with a member of management.
Clean office spaces
We can also expect an increase in the level of cleaning in offices to ensure reduction of any potential sickness for staff and visitors. Businesses will be under scrutiny when they start bringing employees back to work; the focus being on how they manage the health and wellbeing of their staff.
The key for everyone is careful planning and assessment, consulting, and communicating with each other to voice and address concerns. Also, that clear policies are communicated, which are both practical and agreed upon. The basics will include remote working policy; risk assessment and return to work policy for staff and access to services by clients and visitors; Data Protection and Health and Safety audit of procedures and policies; and clear communications with staff.
Karen Holden is the founder of A City Law Firm. For further information, please click here.
