Managing the return: key issues for employers

Although the Prime Minister’s announcement on Sunday evening left many questions unanswered, the detailed guidance released afterwards filled most of those gaps. The change in emphasis is clear. Employees unable to work from home, particularly in manufacturing and construction, though not previously restricted from continuing to work are now “actively encouraged” to work as normal. They are required to continue to maintain social distancing in doing so, however, including on the commute to work.

With this change of emphasis, and the government’s roadmap for a gradual lifting of the UK lockdown, businesses are now having to grapple with the complexities around opening their workplaces when some employees may still be nervous about commuting, may still be shielding or unwell, and when their workplaces have not yet been reconfigured to deal with continued social distancing. Equally, some employees may actively want to return to the office.  Balancing these competing interests is likely to be challenging in many workplaces.

The announcement was supplemented on Monday by two types of guidance: a general update on the government's plans for a staged release from lockdown, and a series of more detailed guides for employers across eight different sectors.

The "work" section of the government’s guidance released on Monday 11 May reads as follows (emphasis in the original):

For the foreseeable future, workers should continue to work from home rather than their normal physical workplace, wherever possible. This will help minimise the number of social contacts across the country and therefore keep transmissions as low as possible. All those who work are contributing taxes that help pay for the healthcare provision on which the UK relies. People who are able to work at home make it possible for people who have to attend workplaces in person to do so while minimising the risk of overcrowding on transport and in public places.

All workers who cannot work from home should travel to work if their workplace is open. Sectors of the economy that are allowed to be open should be open, for example this includes food production, construction, manufacturing, logistics, distribution and scientific research in laboratories. The only exceptions to this are those workplaces such as hospitality and non-essential retail which during this first step the Government is requiring to remain closed.

As soon as practicable, workplaces should follow the new “Covid-19 Secure” guidelines, as set out in the previous chapter, which will be published this week. These will ensure the risk of infection is as low as possible, while allowing as many people as possible to resume their livelihoods.

It remains the case that anyone who has symptoms, however mild, or is in a household where someone has symptoms, should not leave their house to go to work. Those people should self-isolate, as should those in their households.

Given the continued emphasis on working from home, those organisations that are able to function on that basis should plan for it to continue for a significant length of time. Limited exceptions are provided for in the specific guidance for offices and contact centres which recognises that, even for those businesses, certain categories of employee may be required to have a physical presence on-site. Though employers are still expected to plan for the minimum number of people needed on-site to operate safely and effectively, two groups of employees are offered by way of example, as follows: 

  • workers in roles critical for business and operational continuity, safe facility management or regulatory requirements that cannot be performed remotely; and 
  • workers in critical role that might be performed remotely, but who are unable to work remotely due to home circumstances or the unavailability of safe enabling equipment. 

The eight sets of detailed "Covid-19 Secure" guidance look at the particular issues in the following sectors:

They address the key points for employers to consider when designing a return to work plan. The Q&As in this note describe the existing health and safety at work regime which provides the context in which the detailed guidance must be read. 

Further insight into the government’s thinking and strategy behind the gradual release from lockdown can be found in our separate article.

1.
What are an employer’s basic health and safety duties?

The fundamental obligation is to ensure, as far as reasonably practicable, the health, safety and welfare of all employees. The duty, found in the Health and Safety at Work Act 1974, is supplemented by the common law, which allows for personal injury and negligence claims where an employer falls below a reasonable standard, causing injury.

Regulations require health and safety consultation with employees or their representatives. The details vary depending on whether the workplace is unionised, but the basic consultation obligation remains the same – see the next question for further details.

2.
Are we required to discuss reopening plans with staff?

All employers have an obligation to consult their employees on health and safety measures. In non-unionised workplaces, this can be with elected employee representatives, or the employer may choose to consult with the employees directly.

The precise scope of any consultation will depend on the measures each business intends to adopt, but would be likely to include:

  • plans for social distancing;
  • any personal protective equipment that may be required;
  • whether shift times and patterns should be altered;
  • whether remote working should be maintained, and to what degree;
  • how visitors to the office should be dealt with;
  • what wellbeing services are available for staff; and
  • whether contact tracing apps or temperature-taking is to be required.

Although employees have no formal right to claim compensation if an employer fails to consult over health and safety measures, employers should note:

  • the health and safety protections for employees discussed in question 8 below; and
  • the possibility of enforcement action (fines and/or prosecution) by the Health and Safety Executive (HSE).

The detailed guidance underlines the possibility for intervention by the HSE, so organisations should ensure they consider how best to address consultation at an early stage. 

3.
Does Covid-19 give rise to any additional legal obligations?

The government has maintained the existing legislative regime largely unchanged during the current crisis.  The only amendments have come from its order that some businesses (such as pubs) have been required to remain closed during the lockdown period. Notably, the government has not proposed any formal legislative protection for employers from claims simply on the basis that employers have followed government guidance.  Employers therefore need to be mindful of the risk of claims even if they have implemented that guidance. 

One significant change is in relation to risk assessments. Under the Management of Health & Safety at Work Regulations 1999, employers are required to carry out risk assessments. The detailed guidance stresses that obligation, notes the duty to share it with employees/employee representatives as part of consultation and – in a change to the existing regime – recommends that this be published online. Indeed, the guidance notes the government’s expectation that large employers (50+ employees) should publish their risk assessments.

4.
Can employers be liable if employees contract Covid-19?

This is very difficult question to answer in definitive terms. As noted above, the fundamental obligation on employers is to do all that is reasonably practicable to ensure the health and safety of its staff. 

Inevitably, adherence to government guidelines with respect to the release from lockdown, interpersonal contact and social distancing, along with other measures such as temperature checks, are bound to be factors considered by a court when assessing whether an employer has met its obligations.  Equally, it is likely that any failure to follow guidelines may be evidence of breach of an employer’s obligations. 

When assessing whether an employer has taken all reasonably practicable steps to avoid harm to its employees, the courts will ask whether the costs of implementing health and safety measures were grossly disproportionate to the benefits of so doing. The courts interpret this test strictly, and have emphasised that employers must demonstrate that everything reasonably practicable has been done to ensure that the harm was reduced. This is inherently a question of fact and degree in relation to each specific case and the financial costs of implementing safety measures will be one of the relevant factors to take into consideration.

The government has tended to position its guidance as recommendations rather than mandatory steps. Since guidance can never anticipate every possible set of circumstances, employers should ensure they take any relevant guidance into account, but supplement or adapt it to fit the specific risks in their particular workplace or sector. It cannot be guaranteed that even strict adherence to government guidelines will be enough to prevent any risk of liability.

5.
All firms carry employer’s liability insurance. Does that mean firms can ignore Covid-19 risks?

The short answer is no. Most policies insure firms against injury sustained in connection with work, save where injury is caused by a deliberate act of management. Employers should read their individual policies carefully, and discuss with their insurers or brokers how Covid-19 risks should be dealt with.

In particular, employers should check whether:

  1. disease is included in the concept of injury;
  2. new pandemics are not excluded;
  3. the reopening of a workplace will not void cover; and
  4. the risk of contracting disease during the commute is covered.
6.
Do we need approval from the government before reopening?

No notification to government or any regulatory body is required.

7.
Should firms allow employees a free choice, or require attendance when buildings reopen?

Employers have generally approached the unique strains imposed by the Covid-19 pandemic in constructive and sensitive ways, recognising that each employee may well take a different approach to risk, and be in different risk categories. It would be prudent to maintain this stance during the return to work phase. Some employees may have ongoing caring responsibilities if schools remain closed, may have health conditions which make commuting more dangerous, or may simply be more nervous. Equally, some employees may have experienced real difficulty in working from home and may be eager to return to work and a sense of normality. 

By engaging in meaningful consultation at an early stage, and by building in as much scope for individual variation as possible, employers should be able to ensure staff remain committed and productive. Employers should explore all alternative options before issuing any mandatory instruction to attend the workplace. Maintaining an ongoing dialogue with employees is likely to be a key management task as this unprecedented crisis continues to develop.

8.
Can employees be sanctioned if they disobey a request to return to work?

Employees must obey reasonable instructions. But in addition to protection from unfair dismissal, UK law affords an extra layer of protection for employees who are dismissed or subjected to a detriment (e.g. disciplinary sanctions) where they refuse to return to their place of work "in circumstances of danger which the employee reasonably believed to be serious and imminent". Whether an instruction to return to the workplace is reasonable, and what amounts to serious and imminent danger are clearly fact-sensitive questions that will need to be looked at in each case.

The death toll and number of people hospitalised shows that Covid-19 is extremely serious and the immediate risk of transmission suggests it is also imminent. The focus will likely fall on the reasonableness of each employer’s instruction to return to work. An employee concerned about a lack of suitable measures to protect against coronavirus transmission at work who refuses to return to work until appropriate measures are in place might well qualify for protection. The issue becomes even more difficult where the employer considers that it has provided a "Covid-secure" working environment and so requires employees to return to work, but where employees refuse to do so because they have to use public transport in order to come to work. 

Since health and safety matters are included in the list of topics about which whistleblowing concerns can be raised, employees may enjoy protection from this source as well.

9.
How should commuting be dealt with?

The government has posed some very challenging questions for business. It insists employees who cannot work from home should be encouraged to attend work as normal, but it requires social distancing on public transport, which inevitably reduces capacity very significantly. It recognises the ongoing health risks associated with public transport and so it suggests employees should drive, cycle or walk to work instead.

Employee consultations will need to engage with commuting issues. Firms will need to grapple with a number of difficult questions, including:

  • whether staggered shifts might be feasible, to ease the rush hour pressure;
  • whether adequate parking facilities exist if larger numbers drive to work;
  • whether adequate bike storage and shower facilities are in place if the volume of cyclists and runners increases;
  • whether shower facilities can be made compliant with social distancing;
  • what longer commute/changing times might mean in terms of the working day and productivity;
  • whether PPE should be provided to those who have to continue to use public transport; and
  • whether grants or loans should be made available to assist those who would like to cycle.

In many cases, an employee survey to gather data on people’s concerns, and their ability to commute by different means, might be a sensible first step.

10.
How should employee communications be handled?

The government has acknowledged that some employees may be anxious about returning to work. Employers are therefore encouraged to keep staff informed to alleviate these concerns. Acas guidance supports a consultative and flexible approach.

Prudently, firms should therefore adopt a full and frank approach to employee communications so that staff buy-in to whatever health and safety protocols are ultimately decided upon. Although there is no mandatory requirement to inform staff of an organisation’s plans, the law imposes a duty in all contracts of employment to maintain the trust and confidence inherent in the employment relationship. Ordering a peremptory return to work without having communicated a clear plan to employees might well breach that term.

11.
What practical steps might help to reduce the risk of liability, and encourage employees back to the workplace?

As noted above, what is a reasonably practicable step to ensure health and safety will vary for each workplace, and the best advice remains to follow relevant government guidance. Some of the themes emerging from the detailed guidance include:

  • identifying which roles cannot properly be performed from home, as part of the wider risk assessment;
  • staggering arrival and departure times to reduce rush hour movements;
  • using floor markings and additional signage, or introducing one-way flow at entry and exit points;
  • using contactless entry systems, such as fobs, rather than touch-based keypads;
  • providing additional handwashing facilities at entry and exit points; and
  • reducing movement by discouraging non-essential trips within buildings and sites.
12.
How might social distancing apply at work?

The detailed guidance stresses the vital importance of social distancing. At work, this could include:

  • making regular announcements to remind staff and/or customers to follow social distancing advice and wash their hands regularly;
  • encouraging the use of digital and remote transfers of material where possible rather than paper format;
  • using floor markings to mark the distance, particularly in crowded areas;
  • re-organising to ensure staff work side by side, or facing away from each other, rather than face to face;
  • minimising the number of face-to-face meetings;
  • minimising visitors;
  • asking staff to use stairs rather than lifts; keeping teams of workers together without crossover with other teams; and
  • keeping teams as small as possible.

Where the social distancing guidelines cannot be followed in full in relation to a particular activity, organisations should consider whether that activity needs to continue for the business to operate, and, if so, take all the mitigating actions possible to reduce the risk of transmission between their staff.

The government’s detailed guidance gives further examples for employers in each sector to consider.