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COVID-19: How can employers reduce litigation risk when bringing back staff to the workplace?

  • Legal Development 21 July 2020 21 July 2020
  • UK & Europe

  • Coronavirus

From 1 August, the official guidance to work at home if you can, will change. From that date, employers will be able to ask their home working staff to return to the workplace provided they have made their workplace safe after consultation with staff or staff representatives.

The updated guidance on Staying alert and safe (social distancing) can be found here.

Despite current guidance to work at home if you can, some employers have already asked staff to return to the workplace because they consider that the business works more effectively with staff in the office, even where technically they are able to work from home.  But it is probably fair to say that most large office based businesses have not yet undertaken any large scale return to the office.  Employers who have required staff to return have experienced some reluctance and concern. Reasons range from fears for personal safety (or the safety of those vulnerable people they live with) and difficulties with childcare, to those who have a simple preference for home working  - without commuting, some employees are enjoying a better work-life balance and want it to remain that way.  Until there is a reliable vaccine or the virus goes away, it seems likely that at least some members of staff will be reluctant to re-enter the workplace any time soon.

How has government guidance changed?

Guidance on home working has seen a gradual change in emphasis.  Before  4 July, the guidance was emphatic  – work from home if you can.  From 4 to 31 July, the emphasis changed: people should work from home if they can, but employers should decide, in consultation with their employees, whether it is viable from them to continue working from home.  From 1 August, the recommendation that people who can work from home should continue to do so will disappear and it will be for employers to decide how staff can work safely, with working from home just one option for doing so.   The guidance emphasises that employers should consult with employees on how they can work safely, and must ensure workplaces are safe if they are asking people to return.  But ultimately, it is for employers to decide. 

The guidance for people in England who are clinically extremely vulnerable also changes on 1 August.  They can go to work as long as they are able to maintain social distancing as much as possible and their workplace is COVID secure. However, if they can work from home, they should continue to do so.

There has been some but fairly insignificant change in the guidance on the use of public transport.  The guidance before 17 July advised walking and cycling if possible and avoiding peak times if you have to use public transport. From 17 July, the guidance says you can use public transport but it’s better to travel in other ways if possible. If you are using public transport you should follow the safer travel guidance for passengers.  It remains a legal requirement to wear a face covering on public transport.

Government guidance on self-isolation must still be followed and it may be a breach of health and safety obligations to require or allow an employee to attend at work in contravention of these guidelines.  Those who are self-isolating may be entitled to Statutory Sick Pay (SSP) even if they are well.  SSP is currently payable from day 1 of absence for those who can’t work from home and self-isolating:

  • due to COVID-19 symptoms/positive test result (but not if negative test result obtained)
  • under NHS test and trace service for 14 days
  • because  someone in their “bubble” with another household has symptoms or a positive test result

What are an employer’s health & safety duties when opening up the workplace?

Employers who wish their home workers to return to the office must ensure that they comply with their employment and health and safety obligations.  Employers have an implied contractual duty to take reasonable care for employees' health and safety and, from a health and safety perspective, have a statutory duty, so far as is reasonably practicable, to provide and maintain safe places of work, safe systems of work and adequate facilities for welfare.  

To provide a safe place and system of work the employer must carry out a Covid-19 risk assessment (in consultation with staff or representatives of staff) with a particular focus on hygiene/cleaning arrangements and social distancing measures. The government guidance on 5 steps to working safely identifies the practical steps that businesses need to take.  Employers should also refer to the COVID-19 Secure guidelines, which has numerous sector-focussed guidelines.

Can employers insist on a return to the workplace from 1 August?

From 1 August, there is no longer a requirement to work from home so, provided the employer has ensured a safe place and system of work in consultation with its staff, the employer can require its staff to return to the workplace even if the employee can work as effectively, or the business can function as effectively, if they were to work from home.  

What are an employer’s options from 1 August?

Despite this change in government guidance, many employers may decide for a variety of reasons to continue with their current arrangements, and their staff will continue to work from home.  If staff are working from home on a longer term basis, employers should ensure that home working risk assessments are carried out,  and that more safeguards are put in place to support their employees’ mental health.  There may be some employees who are experiencing difficulties with home working, and in those cases, employers should consider permitting them back to the workplace if needed.

Other businesses may choose to re-open their workplaces, either gradually with voluntary attendance, or more radically with compulsory attendance.   The former will be the more cautious option as it gives staff options and minimises the risk of grievances (and ultimately claims) from employees who are reluctant to attend the workplace.  It also gives those who find home working problematic, the opportunity for some release from the stress they may be experiencing from home working.  Where employers insist on compulsory attendance, they will need to demonstrate they have conducted the required risk assessments and have consulted with their staff.  There may still be some reluctance to return from some and employers should engage with those concerns in order to minimise the risk of grievances being raised, and ultimately claims being brought.

What other steps can employers take to minimise litigation risk  when requiring staff to return to the workplace?

Apart from undertaking general risk assessments and taking appropriate measures to make the workplace safe, employers need to be mindful of the particular needs of different groups of workers, particularly those who are protected under the Equality Act 2010.  Employers should pay particular attention to the following groups:

  • clinically extremely vulnerable people (who have been asked to shield until 1 August)
  • clinically vulnerable people (such as pregnant women,  the over 70’s or those with certain underlying health conditions) who have not been asked to shield
  • people with caring responsibilities such as childcare or those living with vulnerable adults
  • nervous but well people who are more sensitive than average to the risks of the virus

There are a number of key practical steps that employers can take in order to minimise the risk of grievances and ultimately discrimination or health & safety claims being brought against them, including:

  • Communicating with staff, providing detailed explanations about steps taken to control and reduce risks
  • Understanding and taking into account the particular circumstances of those with concerns about returning to the workplace, particularly those who are protected under the Equality Act 2010
  • Taking proactive steps to take care of mental health, whether returning to the workplace, or continuing to work from home
  • Involving and communicating appropriately with workers whose protected characteristics might either expose them to a different degree of risk, or might make any measures that might be implemented inappropriate or challenging for them
  • Considering whether there are any particular measures or adjustments which need to be put in place to take account of  duties under the Equality Act 2010; consider specific risk assessments and bespoke risk mitigation if appropriate
  • Making reasonable adjustments to avoid disabled workers being put at a disadvantage – note that many clinically vulnerable individuals will be disabled workers
  • Assessing the health and safety risks for new or expectant mothers (note that  expectant mothers are, as always, entitled to suspension on full pay if suitable roles cannot be found)
  • Making sure that the steps taken do not have an unjustifiable negative impact on some groups compared to others - for example those with caring responsibilities or those with religious commitments
  • Ensuring flexible working, home working and grievance policies are up-dated to deal with the inevitable rise in flexible working requests for home working and grievances from employees who wish to challenge the decision to return to the workplace
  • Considering alternative options such as temporarily changing role, working hours  or shift pattern (to avoid busy commuting times or busier times in the office), home working, parental leave and furlough; and taking legal advice if considering more draconian options of unpaid leave, disciplinary action or dismissal. 

 

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