Today sees England move to Step 4 of the Government’s COVID roadmap. Social distancing and mask wearing rules are no longer mandatory in public spaces, but the Government has failed to clarify what steps it expects employers to take before welcoming staff back to offices and other workplaces. Managing a successful return to the workplace will be far from straightforward.
Employers are under a duty to protect the health and safety of all employees and others who may be affected by their business and must follow Government guidance (from 19 July 2021 https://www.gov.uk/guidance/working-safely-during-covid-19/offices-factories-and-labs. This guidance is sector specific and emphasises the need for a new risk assessment to be conducted before staff return to the workplace. The Government has updated its general guidance on how people should stay safe going into Step 4 (https://www.gov.uk/guidance/covid-19-coronavirus-restrictions-what-you-can-and-cannot-do) however, this does not provide any further specific guidance for employers.
As well as following Government guidance, employers will face practical issues such as:
Communication and Planning
Messaging to staff needs to be clear and communicated in good time. Formulating a communication plan with clear timescales will be key. Don’t forget that plans should include those on sick leave, family leave or furlough and should be reviewed regularly in case circumstances change.
Staff questionnaires could help with employee engagement but consider whether these should be repeated to assess the success of return to work plans. If homeworking will become a staple of the working week, review homeworking and flexible working policies – are they still fit for purpose? Could or should the employer contribute to an employee’s expenses, such as office equipment, electricity and heating bills?
Virtual office tours may help to highlight where things are different (particularly from a health and safety standpoint) and calm the nerves of those who remain apprehensive about a return to work.
Health and Safety Considerations
Employers should review guidance from the Health and Safety Executive (HSE) prior to requiring employees to return to the workplace (https://www.hse.gov.uk/coronavirus/roadmap-further-guidance.htm). This guidance is periodically updated by the HSE and provides the latest information on changes relating to working safely during the pandemic. Whilst HSE guidance is not legally enforceable, it can be used in proceedings against employers who fail to comply with it.
For the time being, the basics remain: regular cleaning and handwashing and good ventilation continue to be important.
Risk assessments will need to be updated and employers will have to choose whether to continue to apply other restrictions post 19 July. Some may find themselves in an unenviable position, managing the inevitable tension between those who consider 19 July to be “Freedom Day” and those who remain apprehensive about the virus.
Maintaining one-way systems and staggering working hours and break times may be “easy wins”. Mandatory wearing of face masks in well-travelled areas (receptions, lifts and so on) may be faced with resistance by some and employers should consider how to treat non-compliance. If disciplinary action could follow, employees should be made aware of this in advance. Mandated regular lateral flow testing in advance of days worked from the office could also help to manage risk.
Special consideration should be given if an employee is particularly vulnerable because of a health condition. Employers should assess how best to ensure these members of staff are kept safe and consulting with the employee at an early stage will be important.
What other adjustments might employers make?
- A phased return to work to limit staff numbers;
- Continuing with home working arrangements on a temporary basis;
- Offering car parking spaces to reduce reliance on public transport; and
- Offering emotional support, through an employee assistance programme for example.
Contracts of Employment
Contracts of employment should be kept under review. Some may need to be updated to reflect new patterns of work or employer benefit schemes (are travel allowances or season ticket loans needed?) Where changes are needed advice should be sought to ensure a fair process is carried out.
Vaccination status – No jab, no job?
Vaccinations are widely available but not everyone is able (or wants) to be vaccinated. Vaccination status will undoubtedly continue to be a hot topic in the coming weeks and months.
Recent guidance from the Government about vaccination (COVID-19 vaccination: guide for employers – GOV.UK (www.gov.uk)) is limited to recommending that employers strongly encourage employees to have the vaccine. Beyond this, there are many competing concerns to be taken into account when deciding whether to mandate vaccination and / or require staff to disclose whether or not they are vaccinated.
There are issues of discrimination, for example if someone can’t be vaccinated because of a health condition, but also potentially (and we would very much be in unchartered waters) discrimination because of a philosophical belief against vaccination.
There are also data protection considerations – although the Information Commissioner’s Office has said that conducting a visual check of a vaccination passport (or NHS Covid Pass) would be ok, retaining information about vaccination status would undoubtedly be processing sensitive personal data (or special category data) so employers would need to think very carefully about (i) whether they actually need the information; and (ii) how they intend to safeguard it.
The Risks of Getting it Wrong
Aside from employee disengagement, employers may face employment tribunal claims if a return to work is poorly managed. Where employees refuse to return to work on health and safety grounds, they may have a remedy in respect of any resulting detriment or dismissal under sections 44 and 100 of the Employment Rights Act 1996 (“ERA”).
These sections apply where an employee (or a worker) reasonably believes there is a serious and imminent risk to health or safety and so does not attend their workplace. Recent cases brought under these sections have demonstrated just how fact specific these cases are. However, one key theme we have identified is that when considering the risk of attending the workplace an employee is likely to take account of the extent to which their employer has implemented covid secure measures as recommended by the Government.
Discrimination claims could also follow if an employer fails to make reasonable adjustments for those with disabilities (perhaps by allowing them to work from home or not requiring them to wear a mask if they suffer from anxiety). In the worst cases, personal injury claims could follow if an employee catches the virus at work, though in many cases this may be difficult to prove.
These risks make it all the more important for employers to carefully consider how to manage the return to the workplace. A well thought through process will need to be flexible, adaptable and will ideally involve employee engagement.