Guidance for Employers
Published: 05 June 2020
As the Government provides increasing indications that the UK will start to exit lockdown shortly, it is time for businesses to prepare for the weeks and months that lie ahead by considering health and safety practices, facilitating the return of necessary employees and considering business needs for the foreseeable future.
Health and Safety
The employer has a non-delegable duty to ensure so far as is reasonably practicable, the health, safety and welfare at work of all employees under the Health and Safety Work Act 1974. Employers are facing an unprecedented challenge in having to completely change working environments and practices to ensure safety amidst Covid-19, however there are a number of ways that this can be tackled effectively.
1. Follow Government guidance and keep up to date
Taking reasonable care will most certainly involve employers taking heed of updated Government guidance and maintaining awarness of the same.
The Government has released 'Covid-19 secure' guidelines which include eight workplace settings including offices, factories, shops, vehicles and research facilities. It is advisable to carefully review the relevant guidelines in the first instance, and to monitor updates to the same.
2. Aseess risks of return to work: COVID-19 risk assessment
Employers should then consider their workplace in detail and identify the key risks facing their workforce. The most critical aspect of returning to work will be conducting a COVID-19 health and safety risk assessment. It is advisable to consult with employees on this matter, as they will be able to give a unique perspective of the challenges faced by individual roles. Risks may be different for different roles and different members of staff.
Employers are not obliged to take every possible measure to eliminate the risk of the spread of COVID-19 but they must take steps which are reasonably practicable.
If the risks cannot be avoided, consider how employees can continue to work from home, or if a staggered return could be facilitated to reduce the density of the workplace.
Employers should also consider how employees travel to work and whether arrangements can be made to avoid travel at peak times, or to encourage different, safer modes of transport.
3. Decide on effective systems
Employers will need to give considerable thought to 3 key areas:
Hygiene - consider the need for facilities to be shared, consider how these will be cleaned regularly and effectively, remind staff of the need to wash hands and to help maintain cleanliness throughout the workplace.
Respiratory Control - plan how social distancing can be accommodated in all areas, consider if face coverings should be worn by employees, consider the use of air conditioning units.
Control of Infected People/Vulnerable People - consider procedures to be adopted if staff become infected, consider procedure for those showing symptoms whilst at work, adopt a clear policy which is accessible to all.
4. Implement and Discipline
Once established, employers must implement their systems and create fair sanctions for those who do not follow the policies/procedures in place. These should follow existing disciplinary policies and best practice guidance. Employers should also consider insurance arrangements and advise their insurer of the intention to return to the workplace.
Employers will also need to give careful thought to which staff will return and when. Communication with employees will be crucial during this time to understand concerns and practicalities.
How should employers deal with extremely vulnerable staff members?
Employers will need to consider members of staff who are considered extremely vulnerable under Government guidance. Employers will need to keep up to date the advice, but as it stands, these individuals are still required to shield and therefore should not physically return to the workplace, if it can be avoided.
Employers will need to consider the options for these individuals, which may include facilitating working from home, exploring other roles the individual could manage or putting the employee on furlough leave under the Coronavirus Job Retention Scheme. For more details on furlough and how it currently operates, please visit our related articles on the Coronavirus Job Retention Scheme.
Employers should always be conscious of their duties and obligations under the Equality Act 2010. Those who are considered extremely vulnerable may suffer from conditions which meet the criteria of a disability under the Equality Act 2010. Employers must not discriminate directly, or indirectly by treating an employee less favourably because of disability or by treating an employee unfavourably because of something arising in consequence of a disability. Employers also must consider reasonable adjustments to prevent any substantial disadvantage being suffered by the employee.
How should employers deal with vulnerable staff members, or those with vulnerable families?
As above, employers will need to be aware of changing Government guidance but currently, individuals who are considered vulnerable do not need to shield but should minimise contact wherever possible.
Again, employers will need to make decisions on who returns to work based on business reasons and cannot discriminate. Employers will also need to be wary of the potential for associative discrimination under Section 13 of the Equality Act 2010, in the case of staff with vulnerable family members.
Employers should therefore carry out individual risk assessments to establish who can return to work safely and how they will be best protected in the workplace. Speaking with employees to understand their concerns and fears is likely to be the best strategy; communication is key.
If an employee is vulnerable but strongly wants to return to work, eployers should take caution given their strict health and safety duties. Again, employers need to remeber that their health and safety obligations are non-delegable. If an employer decides to allow the employee to return, they should notify their insurer and keep a contemporaneous record of the reasons for the return.
Employers will also need to keep in mind their statutory obligations to protect the health and safety of pregnant women.
What if the employee refuses to return to work?
Under the Employment Rights Act 1996, all employees have the right not to be unfairly dismissed or subject to any detriment for raising health and safety concerns, or refusing to return to work or leaving the workplace where they reasonably consider there to be a serious and imminent risk of danger. This could include concerns for a serious and imminent risk to family members, outside of the workplace.
Employers will need to discuss the employee's individual concerns and whether these can be minimised and the risk reasonably averted by taking steps in the workplace. Communication and sensitivity will be key, as well as keeping a clear and thorough record of any decisions taken. The risk assessment will be particularly useful in demonstrating to employees the steps being taken.
There has been speculation regarding the use of temperature testing or Covid-19 tests by employers. This is a decision for the employer to make but certain considerations will need to be given to data protection if testing is to be used on employees:
How will the testing be carried out?
Who will carry out the testing?
How will you obtain express consent from the individual? This is required for certain types of data under GDPR Article 9, including health data.
How will a positive test result be dealt with? What if there is a false positive?
How will you keep a record of the data collected and how long will you keep a record for?
There is also obviously concern as to how to balance the need to inform employees of any health risks identified through testing, alongside the need to protect personal data. Employers should avoid naming individuals if possible unless it is absolutely necessary.
Similarly, an employee will have control over any contact tracing applications brought in by the Government (for instance, the new “Track and Trace” application recently announced and being tested) and an employer cannot insist on seeing this private data. Employers should also take caution not to subject employees to any detriment for taking part, or not taking part in this type of software. Employers should encourage employees to heed all notifications to self-isolate and support them if advised to self-isolate – employers must not ask such employees to attend the workplace.
Furlough & Redundancies
The Coronavirus Job Retention Scheme in its current form remains available for employers to make use of throughout June and July 2020.
From 1 July 2020, employers can also start to bring employees that have been furloughed on a part-time basis, whilst still being able to claim the grant offered under the scheme for the hours not worked by the employee (subject to hitting the minimum period required under the scheme).
Employers should be aware that they will only be able to furlough new employees (I.e. those who have not previously been furloughed) until 30 June 2020. Therefore, any employees not yet furloughed will need to be furloughed by 10 June 2020 in order to be able to continue benefitting from the scheme.
From 1 August 2020, the Government will pay 80% of wages (up to a cap of £2,500) however employers will be responsible for paying employer NICs and pension contributions.
From 1 September 2020, the Government will pay 70% of wages up to a cap of £2,187.50. Employers will be responsible for paying 10% of wages (up to the cap of £2,500), plus employer NICs and pension contributions.
From 1 October 2020, the Government will pay 60% of wages up to a cap of £1,875. Employers will be responsible for 20% of wages (up to the cap of £2,500) plus employer NICs and pension contributions.
Employers therefore should weigh up the benefits of the scheme with the need for employees to carry out work for the company again.
Employers should be wary of these changes to the scheme and maintain records of those currently on furlough leave. Employers are also reminded that if an employee returns to work before their 3-week block of furlough expires, the Government grant will not be available to the employer for this individual.
What if redundancies are necessary?
If an employer needs to implement redundancies, caution must be taken to follow the usual redundancy procedures.
Employers are reminded that if they propose to make 20 or more employees redundant at one establishment within a 90-day period, they will be required to carry out collective consultation for a minimum of 30 days. If the employer proposes to make 100 or more employees redundant, the period for consultation is extended to a minimum of 45 days. The consultation needs to have concluded before any dismissals can take effect.
Employees can still be involved in collective consultation processes whilst they are on furlough leave, so employers should be proactive and take heed of the time limits.
Navigating through the current circumstances and balancing the safety of staff with business needs will be a challenge for all employers. Curzon Green is on hand to offer guidance and support to employers in applying Government guidance whilst also identifying and combatting potential employment law issues.