Post lockdown return to work – Employment Law Update

The UK government will announce a “roadmap” for the country’s exit from lockdown by no later than the end of this week. Published reports suggest that we should expect to hear that the lockdown will be extended until the last week of May although the exact timing is “a live issue” according to government sources quoted in media reports.  While the timing and the specifics remain uncertain, it is advisable for our clients to start making preparations for what is likely to be a staged return to the workplace.

Health and safety

An employer’s obligation to meeting health and safety requirements in the workplace is always of paramount importance but it is arguably now more important than ever given the increased risk of employee related health and safety claims in a post-lockdown world.   Trade unions have already issued stark warnings to employers that inadequate measures to protect employees from contracting Covid-19 upon a return to work may result in legal claims.  This could be particularly difficult for companies to sustain that are already under financial pressure from the crisis.

Employers should begin with carrying out a risk assessment that evaluates the risk of infection and transmission in the workplace and then develop plans to minimise those risks which incorporate the Health and Safety Executive’s latest information and advice and the government’s latest Coronavirus guidance for employers.

In summary, an employer’s plans will likely need to include:

  • Social distancing and shielding – social distancing requirements will almost certainly remain in place in workplaces.  Employers should consider changing the work patterns of employees to stagger start times though we note employees will need to be consulted about this particularly as they have legal rights in respect of their existing contractual working hours.  Additionally, employees may have caring responsibilities which will need to be carefully considering, particularly to avoid possible discrimination claims.  The reorganisation of workstations may be required along with closing or strict protocols for common areas such as kitchens and photocopying rooms.  Restrictions on third parties entering the workplace, non-essential meetings and social events will likely be further appropriate measures.
  • Hygiene – additional hygiene measures may need to be implemented to minimise the spread of infection such as the provision of hand sanitisers, hand-washing protocols, and increased frequency of professional cleaning.  Employers may also need to think about providing personal protective equipment (PPE) and training on use depending on the nature of the workplace.
  • Mental health management – we know from statistical data that the management of employees’ mental health has been one of the most challenging aspects of the crisis.  Some employees may have experienced illness from the virus or lost loved ones, others may have endured isolation alone. Employers should offer access to mental health support programmes such as counselling and closely monitor their employees’ mental health and be prepared to offer reasonable adjustments to employees where possible.
  • Travel – international travel is likely to remain restricted and employees may have concerns about travelling to countries where the risk of contracting COVID-19 is higher than here in the UK. Business travel should therefore be minimised to the greatest extent possible with business meetings conducted by video conferencing.
  • Re-induction meetings – it may be appropriate for management to conduct one to one meetings with returning employees to discuss and document their concerns around health and safety and mental well-being.  Such meetings are an opportunity to discuss any adjustments and ongoing support employees may need in returning to the workplace, particularly those who were furloughed during the crisis.

Recalling furloughed staff

If the needs of an employer’s business warrant the recalling of furloughed employees, reasonable written notice of the return to work will be necessary.  If some but not all staff will be recalled, employers will need to give careful consideration to the decision-making processes through which employees are recalled.  Fair and objective criteria should be used in deciding who is to be recalled so as to avoid future discrimination claims and each decision carefully documented.

Particular care will need to be taken in the recalling of vulnerable employees and the duty to make reasonable adjustments will apply.  The return of furloughed employees with caring responsibilities for children or others will need to be carefully managed to prevent sex discrimination complaints.

Further furloughing and reduced working hours

The government’s Coronavirus Job Retention Scheme (CJRS) is set to end on 30 June 2020.  Some employers may find that timescale does not suit the needs of their business and they would like to continue to keep employees furloughed for a further period of time.  Employers can continue to keep employees furloughed on the same terms as the CJRS though we note employees would need to maintain the same terms with the employer bearing the costs of those terms (i.e. 80% of an employees’ wages, employer NIC’s etc.). Employers are advised that they should seek agreement from employees who they wish to keep furloughed for a further period, assuming the furlough letters initially sent to employees contained an end date for the period of furlough.  Employees should be written to as soon as practicable setting out the employers’ proposal for a further period of furlough.

Another option for employers whose business needs are reduced post-lockdown is to seek the agreement of employees to reduce their working hours on a temporary basis but this option carries risks including future claims for breach of contract and/or the eroding of relationships with employees who have helped the business to carry on as a going concern throughout the crisis.  Such a decision should be done in close consultation with our employment law team.

Redundancies

If recalling furloughed employees or amending their current terms is not feasible, employers may need to take difficult decisions to make employees redundant and may consider doing so before other employees start to return to the workplace.  Again, this should be done in close consultation with our employment team in order to reduce the risk of employment claims arising from an unfair redundancy process being followed.  The correct legal processes must be followed including consulting with staff and collective consultation periods in certain circumstances involving significant numbers of employees. For those employees who are at risk of redundancy and are already furloughed, it is possible to hold consultations during the furloughed period. Clients are reminded that employees are who made redundant will still need to be paid their contractual entitlements including notice pay or payment in lieu of notice, holiday pay and redundancy pay which will be at the cost of the employer.

Should you require any assistance with your employment arrangements during this difficult period, do not hesitate to contact the co-head partners of our employment department.  Ewan Keen can be reached at 020 3206 2724 or ewan.keen@smab.co.uk or Tamara Ludlow at 020 3206 2739 or tamara.ludlow@smab.co.uk.