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COVID-19: Life, and employment, after lockdown

  • Legal Development 7 May 2020 7 May 2020
  • UK & Europe

  • Employment, Pensions & Immigration

The whole country is waiting for lockdown to be relaxed and to better understand what our "new normal" will look like. With the UK Government scheduled to release its workplace guidance on Sunday, 10 May 2020, there have been some hints in the media about what will be expected based on reports of what is included in the draft guidance.

COVID-19: Life, and employment, after lockdown

Keeping the workplace safe will be at the forefront of people's minds as we come out of lock down. And with rumours that there has been a rise in health and safety cases referred to the employment tribunals this April, employers will be keen to ensure that risks are managed carefully.  This article considers the key issues employers need to be thinking about to keep their workers safe.

What restrictions can we expect?

Everyone is now familiar with the UK Government's coronavirus stay at home and away from others guidance requiring people to stay at home except for very limited purposes, and the closure of certain businesses and venues.

But these aren't the only restrictions in place.  Government guidance also requires us to self-isolate when we have symptoms of COVID-19, or if we are shielding because we are vulnerable. Most significantly, we are also required to social distance – which means working from home where possible and avoiding non-essential use of public transport.

A draft of the expected government guidelines seen by the BBC indicates that these restrictions (self-isolation, shielding and social distancing) are not going away. In particular social distancing is here to stay for some considerable time.  So even if there is a release from "lock down", on a staged basis or otherwise, the new "normal" really will be just that.  There is no going back to the "old normal" soon, or even in the medium term.

What are the main issues employers will have to deal with coming out of lock down?

Different employers have been impacted by the current restrictions in different ways.  For example, some businesses were forced to close under lockdown - most of their staff would have been furloughed.  Other businesses have been trading on a limited or different basis to usual, such as transportation and construction. Office based businesses on the other hand, have to some extent been able to carry on their businesses, with staff working from home.  We have seen great flexibility from many employers as they seek to adapt to these difficult conditions. This includes coping with staff unable to work because they're caring for children or vulnerable relatives, and choosing whether to furlough staff particularly if unable to work from home.

Equally, coming out of lock down will present different challenges for different businesses. These will range from getting staff back into the office, whether returning from furlough leave or from home working, to decisions around cutting costs and redundancies.

But common to all employers as they plan their exit from lock down will be following the most up to date government and public health guidance and making sure health and safety considerations are top of the agenda.  Also, as we emerge from lock down, employers will be under pressure to consider whether new ways of working such as home working or different working hours are needed to comply with their health and safety obligations and government guidance. The rest of this article deals with these two key issues.

Focussing in on the health and safety implications

We expect that those workplaces that have been able to work from home during lockdown to be asked to continue doing so for some time.

For remaining workplaces, the key consideration will be around how you can facilitate social distancing and ensuring appropriate risk assessments are carried out in your workplace to enable you to re-open your doors.

Employers are under a legal obligation to provide a safe place of work and a safe system of work.  We have already seen practical examples of this in action at supermarkets and pharmacies for example, where the number of people in the store is limited and workers are wearing PPE.

The health & safety issues for the workplace

Before opening up the workplace, employers should carry out risk assessments on work premises and business operations. As part of these risk assessments employers should follow all relevant government guidance. More guidance is expected imminently but key issues employers should be thinking about are

  • Whether employees can keep 2 metres apart when accessing the workplace (for example in a lift) and while working and using facilities. You should assess how person-to-person contact can be minimised at work, so that social distancing can be achieved. If you allow for flexibility on employees’ working hours, in addition to helping with social distancing, this could also help staff manage childcare until all schools and nurseries are open as normal again. It could also help staff using public transport at less busy times
  • Whether to provide PPE in the office (e.g. masks and gloves) and to require it to be worn at work
  • Whether to introduce mandatory testing. If so, what will this look like and how will you procure the testing? If testing is introduced, this will have data protection implications. The test results will be "special category" personal data so there will be additional requirements in order to process this data
  • How to ensure that the workplace is safe.Can offices be cleaned properly, using sanitising equipment (such as phones and keyboards), and can additional hand washing/sanitising facilities be made available for staff?

The health & safety issues for home working 

Many office based staff are likely to have to continue home working to some extent.  Whilst in practice employers and employees had to get on with this initially, the health and safety requirements are to ensure that a safe place, and safe system of work, is in place – and this applies to home working.  It is important for appropriate health and safety risk assessments to be put in place by employers including:

  • Checks should be made on employees' workspace and desktop equipment, and the relevant guidance followed.
  • Consider providing online health and safety modules designed for working from home, including those focussed on mental health, and keep in regular contact with staff to monitor their wellbeing.
  • Provide training and/or guidance on homeworking best practices and firm up your home working policy.

Flexible working - a cultural revolution?

Until this crisis, it was generally accepted that homeworking was possible but didn't work for many jobs on a regular basis. But maybe this crisis will lead to a sea change in this approach? Employers may see some of the benefits where there has been an increase in productivity, and they may also see the potential cost savings of reducing expensive office space provision. Staff may also see the benefits to achieve a better work-life balance or to enable more flexibility around parents sharing child care responsibilities. This is particularly so if schools see only a staggered return to normality.  

This may lead to employers proactively considering flexibility and use of office space and home-working, and may also lead to greater flexible working requests.

How should employers deal with requests?

Employers should be ready for an increase in homeworking requests as well as requests to work different hours to fit around childcare responsibilities, to minimise personal contact or to avoid crowded commuter trains and buses. Being flexible as regards home working might also help to reduce absenteeism. Absence levels are likely to be higher if staff are having to juggle childcare and work, particularly if schools only see a staggered return to normality.

Employers should consider how they will deal with these. If your preference is not to agree to such requests, ensure that you are in a position to explain why homeworking or different working hours aren't possible. Managers must have valid reasons and proper rationale as to why employees will have to come into the office.

If however you are open to agreeing to homeworking on either a temporary or permanent basis, consider if there may be any hidden costs involved, such as whether further investment in IT platforms is necessary or whether employees will seek further expenses.

What about vulnerable staff?

If possible, allow vulnerable staff to continue to work from home.  If they are returning to the workplace, consider what measures you will need to take to enable them to return. If neither of these options is viable, consider other options, such as furloughing.

Your checklist for managing the new working order

Once the health and safety risk assessments are complete, you will need to consider the practicalities of managing this new working environment:

  • Do you need any new policy documents? Do you have policies dealing with home working, flexible working, emergency volunteering leave, unpaid leave and emergency caring responsibilities?
  • Do you need to update any policies? Data protection (for testing and for additional communications due to COVID-19), sickness policy, holiday policy (eg to deal with carry forward of unused holiday due to COVID-19 issues)
  • How will you communicate the new working procedures to your employees? Consider options including one to one meetings on return with line managers and training for line managers
  • What happens if employees refuse to follow the new working practices - i.e. what disciplinary action can you take?
  • Consider whether to provide employees with a contribution towards costs of home working. During lockdown, employers have (reasonably) said that given that the situation is short-term and temporary, they will not be contributing to these costs. But if employees are incurring additional expenses (beyond normal expenses), such as increased equipment costs, employers should consider assisting employees with these costs, on an individual basis and as an exception to the normal policy
  • Mental health also falls under the remit of health and safety obligations. Employers should seek to ensure that every employee feels they are returning to a supportive and caring environment. Train line managers on holding one to one meetings at which employees can discuss any specific health and safety concerns they have on their return to work.

To conclude, most employers will have a natural focus on keeping their workers safe.  But this will also be the most essential legal requirement around considering a return to work and what the "new normal" will look like.

Written by Chris Holme and Ashleigh Nelson

If you have any questions or would like advice on any of the issues raised here, please get in touch with Chris Holme or your usual Clyde & Co contact.

For more Coronavirus (Covid-19) information please see our Coronavirus hub here.

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