With the Government having published its post COVID-19 recovery strategy, setting out a ‘road map’ for eventually easing the lockdown, it is now time for employers to start planning for a return to work.
Over the past two weeks, we have seen a very slight easing of restrictions. Government guidance currently states that “for the foreseeable future, workers should continue to work from home rather than their normal physical workplace, wherever possible”. Those who cannot work from home should travel to work if their workplace is open, and sectors of the economy that are not forbidden from opening have been told they should do so. It has also been announced that non-essential retail, for example, will be permitted to re-open on Monday 15 June. Sectors such as leisure and hospitality, however, remain closed for the time being, but some venues and outlets are anticipated to be open as early as July 4th, subject to social distancing rules.
While the government’s easing of restrictions will be welcome news for the majority of employers, the subsequent return to work in the COVID-19 environment presents a number of potential pitfalls in employment law terms.
Companies may not be in a position to employ the same number of staff on the same terms as before the lockdown. Therefore, employers may wish to make structural changes to their business in preparation for the return of their employees. Alternatively, employers may want employees to return to work and gauge the level of demand and productivity before deciding on the type and extent of changes to the workforce that are needed. Employers may want to consider:
- Changing the hours of employees
- Changing the shift patterns of employees
- Placing employees on ‘part time’ furlough
- Reducing the salary of employees
- Reducing the number of employees
The laws of England and Wales require formal consultation procedures to be followed when changing the terms of employees’ contracts of employment (even temporarily). The position is similar for redundancies. The processes for varying employment terms are designed to obtain employee agreement to the proposals before the changes are bought into effect. Unilateral changes to employees’ terms and conditions of employment often lead to disputes and claims in the Employment Tribunal, and are therefore not advisable. In the current fast-changing environment quick business decisions may of course be necessary, however, seeking advice before embarking on such changes will inevitably reduce risk.
Return to work
Employers remain under a duty to provide a safe working environment to all staff. Failure to comply with this obligation is a criminal offence. Employers must comply with existing health and safety legislation, using government advice as guidance on how to reduce the risk of employees contracting COVID-19 at work. Employers will need to consider the following:
• Return to work: Which employees will return to work? On what basis will the employer decide who returns to work?
• Social distancing: Is maintaining a two metre gap between employees at all times possible? If not, what are the solutions?
• Cohorting/ staggering: To reduce the density of employees in a single workspace, employers may want to consider varying shift patterns and rotate teams of staff. Will the employer need to gain consent from employees in order to do this?
• Hygiene and infection transmission: What systems and policies will need to be put in place to minimise the risk of infection? How will these policies be circulated to employees? How will the employer ensure employees comply with these policies?
• Re-induction: Support systems for employees returning to work are imperative. Employees may be returning to work with poor mental and physical health. How will vulnerable employees be supported on their return to work?
• Managing employees who refuse to return to work: Employers must discern whether employees are reasonably or unreasonably refusing to return to work, and the risks associated with demanding all employees return to work.
Employers will need to ensure that COVID-19 policies, procedures and risk assessments are robust before the resumption of work in the workplace, ensuring the safety of workers and others visiting company premises. In the event an employee does accuse their employer of failing to provide a safe working environment, it will be essential for the employer to have clear and comprehensive policies in place as evidence that government guidelines had been followed. An employer will also need to provide written evidence that risk assessments were carried out and all possible precautions were taken to provide the employee with a safe working environment. Forewarned is forearmed.