We are told that on Sunday of this week, Boris Johnson will reveal a “roadmap” out of lockdown and industry specific guidance documents will be released by the Government – in due course – on how to get people back to work. Guidance documents will be issued for the following sectors (hotels & restaurant staff, factory workers, shop workers, office workers, people working in other people’s homes, people working outdoors and people working in vehicles).
It would appear that now is therefore the correct time for businesses and employers to start considering how, when and if they start to re-introduce their employees and workers back into the workplace.
What steps do you need to consider as employers?
- As employers, you owe your employees and workers a duty of care and you must observe health and safety statutory guidelines. Attention must be given to carrying out a suitable and sufficient risk assessment, given that COVID19 is a novel hazard not otherwise provided for in most Health & Safety policies. That risk assessment should include a documented action plan to reduce risk to as low as reasonably practicable, which should cover:
- Reviewing systems of hygiene to make sure they provide appropriate protection (staff should be encouraged to regularly wash their hands with soap, carry and use tissues and sanitising hand gel):
- Regular cleaning of hard surfaces especially phones and door handles; and
- Identifying high risk groups (those who have a high level of contact with others).
- One of the areas a business will need to review is whether social distancing can be achieved in the workplace and current guidance from the Government and ACAS should always be considered (alongside taking legal advice where necessary and if you are unsure of the legal position).
On 7 April 2020 the Government helpfully issued new guidance (for businesses in England) on social distancing for certain sectors during coronavirus – BEIS Guidance: Social distancing in the workplace during coronavirus (COVID-19): Sector Guidance. The Sector Guidance provides advice on social distancing for the following sectors:
- Shops running a pick-up or delivery service.
- Tradespeople and working in people’s homes.
- Manufacturing and processing businesses.
- Logistics businesses.
- Outdoor businesses.
- Farming: visiting farms for animal health and welfare
- Fishing or other short-term offshore work
- Cargo-shipping or other long-term offshore work
- Transport businesses.
- Waste management businesses.
Employers will need to spend some time with health & safety reps (or equivalent) in the workplace to devise a best practice for their industries and to configure a working model where social distancing is adhered to (you must currently avoid crowding and maintain a distance of 2 metres between individuals) In some workplaces this may not be possible, but employers will need to consider all reasonable options before it asks workers to continue working in an environment which does not adhere to such practices bearing in mind its duty of care to employees.
- It is also worth revisiting the World Health Organisation’s (WHO) global guidance (published 3 March 2020): “Getting your workplace ready for COVID-19”, which lists simple ways to prevent the spread of COVID-19 in the workplace. The guidance advises on low-cost measures which will help prevent the spread of infections in the workplace (make sure workplaces are clean and hygienic, promote regular and thorough hand-washing by employees), how to manage COVID-19 risk when organising meetings and events and things to consider when travelling abroad (probably not possible now). It also has useful content on and getting your workplace ready in case COVID-19 arrives (remind employees that they must only come into work if they are well and no one in their house is self-isolating).
- Some employers are also considering whether it will be necessary to conduct temperature checks on employees, workers or visitors.
If an employer wishes to take the temperature of an employee or worker, they will need their consent. In theory, at least, to proceed with temperature checking without consent could be classed as a repudiatory breach of contract in respect of employees, entitling them to claim constructive dismissal, and for both employees and worker, common assault.
In most cases, however it’s thought that consent may not be an issue. In the majority of cases if employees and workers consent to the temperature checks, as they may be reassured that the employer is taking necessary precautionary steps in the workplace. All employers must make sure appropriate hygiene safeguards are in place when taking temperatures.
Thought also has to be given to the current stance of the Government and WHO, which is that taking temperatures is not a recommended measure for an employer to take in respect of its workforce.
- Another step employers may wish to consider is whether their employees and workers should wear masks at work. Current Government guidance does not advocate the wearing of masks in the workplace and recommends frequent handwashing to staff and customers together with the regular cleaning and disinfecting of objects and surfaces. Similarly, WHO guidance does not currently recommending masks be worn in the workplace either. Therefore, care needs to be taken if you are seeking to make the wearing of masks compulsory at work. An employer seeking to so may not be able to justify taking such steps, when it is currently not obviously medically effective. However, the Government’s position and WHO’s position may change, so up to date information should always be sought before rejecting or initiating a face mask wearing policy at work.
- As employers, you also need to be aware of specific provisions in the Employment Rights Act 1996 which protects employees from being subjected to a detriment or being dismissed for either raising health and safety concerns in the workplace or taking certain actions in relation to health and safety concerns in the workplace.
- The practicalities of employees and workers retuning to work might not be the only consideration for some businesses as the financial support provided by the Government’s furloughing scheme (or CJRS) comes to an end on 30 June 2020. Instead, redundancy might also be at the forefront of the management team’s mind. A recent survey carried out by the Association of Practising Accountants (APA), reported that seven in 10 businesses had lost at least half their revenue during the current pandemic, cutting employee numbers might be the first port of call for some businesses.
How should a business coordinate a redundancy exercise? It goes without saying that the Human Resources Team should be involved early in any discussions regarding any potential reduction in the headcount number, as any employee whom is made redundant will have to satisfy the legal definition of redundancy (one of which could be the reduced requirement for employees to carry out work of a particular kind).
Employers will also need to estimate the number of proposed redundancies as it is worth remembering, that if20 or more redundancies are proposed at one establishment within 90 days, collective consultation obligations will be triggered under Section 188 of Trade Union and Labour Relations (Consolidation) Act 1992. It will also be necessary – within the correct statutory framework – to notify the Secretary of State (via a HR1 form) of the proposed redundancies.
If fewer than 20 redundancies are being proposed then it will still be necessary to follow a fair procedure in relation to each employee at risk of redundancy.
A common question arising from employers has been whether they can still commence a redundancy consultation process when their employees are on furlough leave. If an employer is legally obliged to commence collective consultation obligations, then representatives can still be elected and consulted with during a period of furlough leave.
Generally in the redundancy process, attention must always be given to:-
- Warning the employees of the proposed redundancies:
- Consulting with employees or their representatives:
- Identifying the appropriate pool of employees if selection is necessary:
- Establishing a proposed set of objective selection criteria if selection will be necessary:
- Drawing up a list of alternative vacancies:
- Considering whether there are any employees who are pregnant, or on maternity, adoption or shared parental leave as special rules apply to them on redundancy; and
- Offering the right of appeal if an employee is dismissed.
Whilst there are still areas of uncertainty, we hope that this note is helpful. Do contact Rachel Hatton of Knights plc on firstname.lastname@example.org or 07973 897 267 with any queries you may have regarding this article.
The law is constantly changing and the position set out in this note may not be current. You should not rely on this note as a comprehensive statement of the law. Please contact us if you require specific legal advice on your situation.