Getting your workforce back to work

12th June 2020

This blog sets out considerations for businesses as the workforce returns to working from business premises on what is expected to be a gradual basis where feasible.

The first thing to point out is that as at 11 June 2020 the government guidance is still that any work that can be done from home should be done from home. This blog sets out considerations for businesses as the workforce returns to working from business premises on what is expected to be a gradual basis where feasible.

1. Risk Assessments

All employers are required to have a risk assessment in place however the risk posed by Covid-19 needs to be specifically addressed and as such risk assessments should be updated to address the current situation. It is advisable for employers to share their risk assessments with employees and to invite them to comment. Employers with 50+ employees are expected to put their risk assessment on their website.

Guidance from the Health and Safety Executive can be found here:

2. Communication

Communication with employees is key to a co-operative workforce. Advise employees what measures have been put in place to protect their health and safety before asking them to return and invite them to comment or make suggestions. Workers can leave the premises or refuse to attend if they reasonably believe someone is in serious and imminent danger link to previous blog. You can minimise the risk of this happening by ensuring that they understand how any risk has been minimised.

3. Providing a safe working environment

Employers are under a duty to provide a safe working environment. The biological threat posed by Covid-19 is a risk employers need to minimise to reduce the risk of breaching this duty. Employers must assess the workplace with a view to reducing the risk of contamination. As the virus can survive on surfaces for extended periods depending on the conditions it will be important to reduce clutter (for want of a better word) for example by introducing (or enforcing) clean desk policies, increasing the frequency at which surfaces are cleaned, having deep cleans more often, and reducing the number of people using communal spaces or equipment.

4. Facilitating and enforcing social distancing

The current requirement is for people who do not live together to remain two metres apart (although this may change in the near future). This will cause problems where workstations are closer together than this. Employers will need to move workstations so that they are further apart and so that people do not work face to face unless there are screens between them. It is advisable to put distance markers on the floor and to implement a one-way system where possible. If possible, increase the number of people gradually so that such systems can be assessed and adjusted if necessary. It is also a good idea to stagger start and finish times and if a rota system is implemented to have the same people working together on each occasion to minimise the number of different people encountering one another.

However, having systems in place is only half of the solution, a good system is only any good if it is followed and enforced. Workers should be made aware of the importance of complying with the systems, the reasoning behind them, and the consequences of not following them. Harsh though it may seem, these systems are being implemented for health and safety reasons and employers ultimately are responsible at a criminal level for ensuring health and safety. As such, those that do not comply should be subject to disciplinary procedures.

5. Carrying out temperature checks

Temperature checks are a bone of contention and an option that needs to be considered carefully. Somebody’s body temperature is special category data and employers need a legal basis for processing that data or risk being in breach of Article 9 of the General Data Protection Regulations 2016 (as implemented by section 10 of the Data Protection Act 2018). The size and nature of your business is likely to be a factor to consider, this measure may be more appropriate where large portions of the workforce cannot work from home. One low risk but possibly costly option is to provide workers with a personal thermometer and require them to take their own temperature before they leave home for work with a requirement that if their temperature is elevated, they must remain home and report to HR. It may be appropriate for them to retest themselves an hour later to see if anything, such as physical exercise or a hot flush, was causing the increase temporarily.

If it is decided that temperatures are going to be checked on site considerations include whether to store the results of the tests (preferably not), who will take the temperature measurements, and what will the protocol be if somebody has an elevated temperature. It is advisable to consult on this issue with the workforce before it is implemented to understand any objections or concerns.

6. Flexibility

Employers and their workforce have had to adapt and be flexible over the last three months and realistically this will need to continue going forward whether that is in respect of the place of work or the working pattern. It is likely that more workers will want to continue working from home at least part time and that employers will need workers to continue working from home to minimise then number of people attending the workplace. Going forward it is advisable to have this clearly documented to protect both parties. Where this is not intended to be permanent this should be stated including how often or in what circumstances this will be reviewed.

Employees with more than 26 weeks service are entitled to make a flexible working request for a permanent change to their place of work, the number of hours they work, or the times of work once every 12 months and employers are required to genuinely consider the request. Employers are likely to find it harder to turn down requests for home working or alternate working patters than pre-Covid-19 if the employee can show that it has been working during the period of lockdown. For an employer to turn down such a request it must be able to justify it under one of the grounds set out in section 80G of the Employment Rights Act 1996 and to reduce the risk of being defeated in a claim, have evidence that it has considered it and genuinely cannot accommodate the request.

Where the workforce will be working more remotely it is important to have a homeworking policy setting out the expectations on hours, equipment, workspaces, the right of the employer to enter the home to assess risk or to install, fix or remove equipment.

7. Flexible Furlough Scheme (FFS)

The Coronavirus Job Retention Scheme continues in its current form until 30 June. From 1 July the FFS means that employers can bring back workers on a part-time basis and still claim support from the government to top up wages for the hours not worked. Workers must be paid 100 of their normal rate of pay for any work undertaken but can remain furloughed on at least 80 of pay for the remainder of their normal weekly hours. It is likely that the agreements used to furlough staff previously will need to be updated to reflect the fact that the requirement is no longer not to work, but to work flexibly, as and when required by the employer between 1 July and 31 October 2020 when the CJRS will cease to exist. Such a requirement will be a change in terms and conditions of employment and must be permitted by the contract of employment or agreed with the worker to avoid a breach of contract.

Employers can only access the FFS in respect of workers that have been furloughed for a minimum of three weeks prior to 30 June which means it is now too late to furlough those that have not been furloughed previously.

From 1 August 2020 the level of financial support is being reduced so that the cost to employers is gradually increased on a monthly basis until 31 October when government financial support is expected to cease completely.

8. Extremely vulnerable workers

Those that are extremely vulnerable due to underlying health conditions (as listed on the gov.uk website) are strongly advised to continue shielding until at least 30 June 2020. As such they should be permitted to continue working from home or, where that is not possible, kept on furlough leave or statutory sick pay. If alternative duties can be found that would enable a vulnerable person to work from home that should be facilitated. Often those defined as extremely vulnerable people will meet the definition of disability as set out in section 6 of the Equality Act 2010. If a disabled person is put at a substantial disadvantage as a result of a provision, criterion or practice, or a physical feature of the workplace, the employer us under an obligation to make reasonable adjustments to remove the disadvantage and a failure to do so may result in a claim for disability discrimination being brought. Reasonable adjustments should not be imposed on workers, so it is important to discuss the options with the disabled person before any decisions are made.

9. Transport to work

For those that must attend the workplace avoidance of public transport is advised. This may see an increase in people walking, running, cycling and driving to work than before. Employers should consider whether they can accommodate an increased number of bikes safely, and whether they can subsidise parking or perhaps make arrangements between those that previously drove and are now working from home and those that need to attend work but previously used public transport. Where there are changing facilities consideration will need to be given the to the cleaning of these facilities and employers should consider providing cleaning products and requiring staff using those facilities to clean them after use with a full daily clean by cleaning staff. It will also be necessary to consider where staff are permitted to put their travel clothes during the working day. For those that must use public transport some flexibility in working hours is advisable to reduce the need to travel at peak times.

10. Ongoing review and adaptation

Whilst nobody can say how long we will live in this new normal it is safe to say that the world has changed and is likely to continue changing for the foreseeable future. Employers need to stay on top of government guidance and review and adapt their processes regularly. Communication will be key to ensuring workplace health and safety and an engaged workforce. Involve employees, update them regularly and keep a record of what has been done and why.

For further information please contact Kelly Gibson at kelly.gibson@tayloremmet.co.uk or 0114 218 4307.

Please note that there are different rules in force in the different counties within the UK. This guidance note is relevant to England.

This guidance note does not constitute legal advice and specific legal advice should be sought to deal with specific issues.

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