Returning to the workplace - UK

Question

Points to note

What does the law say about the employer’s duty of care as employees return to work?

Employers have a legal duty to ensure, so far as is reasonably practicable, the health, safety and welfare at work of their employees and anyone else who may be affected by the employer’s business. This would include conducting regular risk assessments in consultation with any recognised trade unions (as appropriate) or workers to identify COVID-19-related risk and appropriate measures to control that risk, and reviewing them on an ongoing basis. Employees also have legal responsibilities: to take reasonable care for their own and others’ health and safety and to cooperate with their employer to help them meet their duties 

Are there official constraints on employers as they plan to reopen workplaces? 

Yes, some business closure restrictions currently remain  and should be observed until lifted. Guidance on working safely has been issued by the Government and Health and Safety Executive. Employers should refer to the latest guidance in their planning (including devolved guidance and restrictions in Northern Ireland, Scotland and Wales as they currently differ), when carrying out risk assessments and implementing measures. The ‘COVID-19 secure’ government guidelines currently highlight five key steps: work from home, if employees can (this is subject to change); carry out a COVID-19 risk assessment, in consultation with employees or trade unions; maintain a two metre social distancing wherever possible; where people cannot be two metres apart, manage transmission risk; and, reinforce cleaning processes.

Has the employer put in place a Health and Safety (H&S) COVID-19 protocol before reopening?

A protocol/policy, which reflects the employer’s COVID-19 risk assessment measures, the latest guidance and the employer’s key aims, will support the detailed planning required before workplaces reopen. As well as setting core principles to guide managers, such a protocol might include measures such as training employees on protective behaviours and the use of any PPE, undertaking regular H&S inspections, health screening (see further below), social distancing rules, instituting regular cleaning and encouraging frequent hand-washing, avoiding or limiting business travel and in person meetings, limiting employee and visitor numbers in the workplace, guidance on the limited use of public transport, staggering commuting times, staggering shift/opening/break times, considering arrangements for ‘queuing’ to enter premises, reviewing the operation and use of refreshment areas, washrooms and other common areas, instituting signage on social distancing and hygiene, etc (the ‘COVID-19 secure’ guidelines has extensive workplace examples). Ensure any proposed measures are first consulted upon with any trade union H&S representatives or workers and, once adopted, are applied reasonably, fairly and consistently.

How has the employer communicated with employees?

Employers must consult employee representatives or staff directly on measures to ensure health and safety at work. The guidelines states that employers should share the results of their risk assessment with the workforce and there is an expectation that all businesses with over 50 employees publish it on their website. Some employees may not want return to work due to health fears and, by involving any recognised unions or workers in risk assessment planning, and communicating openly with staff on measures adopted to safeguard their health, employers can build employee trust, ensure a smooth transition back to work and reduce the risk of any employees having lawful grounds to refuse a return to work (see below).

Can an employer require employees to attend work when it reopens?

An employer may require staff to attend their workplace if: the work can’t be done from home; the organisation has not been instructed to close; the employer can meet current guidance (e.g. protecting the vulnerable, those shielding and on social distancing/hygiene) and the employer ensures, as far as is reasonably practicable, the health and safety of their employees and makes adjustments for those with conditions that amount to a disability. Care should be taken to avoid making assumptions which expose the employer to potential discrimination claims (such as whether or not an employee is ready or able to return or making arrangements which unjustifiably and detrimentally affect some groups, such as those with caring responsibilities).

Following the guidelines, addressing COVID-19 risks and communicating mitigating measures to employees will reduce the likelihood of any employee reasonably believing that returning to work places them in serious and imminent danger to their health. Employers should plan how they will protect people who are at higher risk, such as disabled, vulnerable or shielding employees (or employees with such people in their household) and, for the duration of the Coronavirus Job Retention Scheme (CJRS), they may be eligible for, or should remain on, furlough leave (see our CJRS Q&A). Assess the risks for new or expectant mothers who may be entitled to suspension on full pay if suitable roles cannot be found. Refer to the latest guidance, listen to the reasons for employees’ concerns, try to find an agreed resolution and keep records. However, if the employee does not have reasonable grounds for his/her refusal and the employer has complied with H&S duties and current guidance (as outlined above), employers should act carefully and sensitively, balancing individual employee support, broader employee relations, risk and reputational aspects.

The guidelines stress the need to maintain social distancing in the workplace wherever possible and sets out practical examples when accessing work, moving around, in meetings and common areas, etc. A radical re-think of the working environment is therefore necessary, including access, layout, conditions of use and more.

A phased or partial return to work will inevitably involve an element of selection, such as which employees return from furlough ahead of others. Employers should ensure that fair, objective criteria are adopted, such as business-driven and skills-based, when selecting employees to return and any recognised unions are involved, as appropriate. Keep employees informed and communicate the process and timescales.

Thought should be given as to how breaches of these policies should be treated and with what level of severity. Disciplinary procedures should be clear on this point, well-communicated and sanctions should be proportionate and consistent.

Depending on how carried out, it is likely that testing/other screening will involve use of personal data and should then take account of data privacy requirements (read the ICO guidance), regulatory and government guidance (which is continually evolving). Specific advice should be taken and a DP impact assessment may need to be considered. This is because information about an individual's health is a 'special category' of personal data and should only be processed in limited circumstances. In all cases, personal data collected and processed must be limited to what is necessary (in line with general data minimisation requirements). In particular, a lawful basis is required for each purpose for which the personal data will be processed (eg used, shared etc); and an additional lawful basis is required for the processing of special category personal data. The applicable lawful bases in each case will be dictated by the factual circumstances. Reliance on consent for staff screening would be problematic and should be avoided wherever possible.

Employers can require that staff report if they are infected or have been exposed to infection, via dedicated communication channels. Policies should address how to deal with employees who appear sick upon arrival at work or who fall sick during the day.

Statutory sick pay is available in both instances (and company sick pay, depending on the employer’s policy). Alternately, for those infected, for the duration of the CJRS and depending on the length of sickness, employees may be eligible for furlough leave (see our CJRS Q&A guide). The employer’s approach should be considered in the context of what is expected according to the contract of employment. We expect that many employers will wish to encourage employees to stay away from the workplace during the period when they should be self-isolating, to reduce the risk of infection, and may decide to maintain full pay in order to achieve this. Official guidance setting out minimum periods for quarantine/self-isolation must be observed. Read our briefing on Test and Trace.

Despite taking all reasonable preventative measures outlined above, there will be a risk of infection amongst workers having returned to work. While employers should act to prevent this happening in the first place, they should also have a rapid response plan, for dealing with an outbreak, in place before they reopen.

While the guidance is changing to permit more employees to return safely to the office, higher levels of homeworking are expected to continue. Employers should review their legal responsibilities for ensuring a safe place of work at home and that working time requirements are met, to ensure that employees continuing to work remotely are able to function effectively and have suitable financial, practical and mental health support. For further information on homeworking, read our briefing.

For the duration of the CJRS, employees who are unable to work because they have caring responsibilities resulting from COVID-19 can be furloughed (see our CJRS Q&A guide). If the caring reasons are unconnected with the virus, the employer should seek a resolution such as agreement to unpaid or emergency dependent leave, reduced hours etc.

This will depend on the nature of the change (whether it is a contractual change), the contract of employment and/or any relevant policies. Employers should check whether there are express or implied terms entitling them to require staff to work from a different location or in an altered role. Even if such a term exists, any such request would need to be a reasonable one. If not, any changes will need the agreement of individual employees or recognised unions representing them under collective bargaining. Read our briefing on adapting the workplace for further information.

This will depend on the terms of the furlough leave, for example, whether it involved a temporary change to employment terms. Where employees simply return to their pre-furlough employment contract, this should be confirmed in writing. However, some employers may be seeking further contractual change as part of a partial return or cost-cutting. Looking ahead, employers may wish to consider seeking agreement to revisions of employment contracts to allow for further periods of lockdown (e.g. lay-off clauses or other emergency measures to vary terms)