14 May 2020

Life after lockdown guide for employers – returning to work

Here we answer your questions on how employers can prepare for a post lockdown return to work.

How can businesses prepare for reopening?

Answered 13 May 2020

The Government has now published eight online guides intended to help employers and workers to work safely as lockdown is gradually eased.

We strongly recommend that employers undertake a comprehensive risk assessment exercise in good time, in order to consider how best to approach reopening. Aside from complying with government guidance on social distancing, businesses and organisations will differ in how they operate post-lockdown.

Employers should consider factors such as:

  • staff numbers
  • staff with underlying health conditions which make them additionally vulnerable with Covid-19 (e.g. asthmatic employees)
  • the size and layout of workplace buildings and departments
  • staff transport (both to/from work and during the working day, where applicable)
  • general working arrangements
  • the provision of hand sanitiser at entry/exit points and elsewhere within the workplace
  • any other relevant and reasonable protective measures.

These risk assessments should be working documents, regularly reviewed and updated in line with government advice. We would recommend keeping an archive of all risk assessment versions, so that it is easy to look back and show why certain decisions were taken at a precise point.

How should employers manage social distancing?

Answered 13 May 2020

Employers should follow government guidance on social distancing at all times. We anticipate that workers (those who are currently away from the workplace, either because they are homeworking or where they have been furloughed) will be returning to work on a phased basis. This should make it simpler for employers to implement social distancing techniques.

The concept of social distancing may be tricky to implement for some employers. As part of any risk assessment, employers will need to consider matters such as:

  • the physical flow of employees in the workplace
  • staff who could reasonably continue to work from home, to reduce the employee number on site
  • desk, office and seating arrangements
  • staggered break times
  • how many staff are allowed in one area (including bathrooms, kitchens, communal areas etc.) at any one time
  • whether certain activities cannot be currently carried out safely and any reasonable alternatives to these
  • social distancing measuring guidelines taped on the floor
  • visitor policies.

Should employees be provided with PPE?

Answered 13 May 2020

Employers should follow the appropriate government guidance on PPE, as released and updated from time to time. There may be individuals for whom it would be more appropriate to provide PPE; for example, customer-facing receptionists or any workers involved in providing personal care. However, it is unlikely to be necessary for all staff to wear PPE, provided that businesses and organisations are following social distancing rules.

Some workers may be concerned about their safety (or, indeed, the safety of their families) and wish to wear PPE in the workplace. We recommend talking with these employees to understand their concerns in the first instance, with a view to seeing how you can reasonably support them at work.

Will all employees/workers return to work at the same time?

Answered 13 May 2020

This is an issue for each employer to manage, within reason. It is possible, or even likely, that employers will not require their full workforce to return all at once.

For example, a large accountancy firm may not need its full complement of cleaners if the offices are not fully occupied while some accountants continue to home-work. Similarly, it may be that some employees are able to continue to successfully work from home, with both the employer and employees preferring this.

Once government plans for a phased reopening and a “new normal” have been fully fleshed out, employers should consider (and regularly review) their respective workforces and determine who they need in the workplace and when.

What if workers are unable to return to work because they are shielding?

Answered 13 May 2020

Under the current Public Health England guidance, clinically vulnerable individuals should shield themselves until the end of June 2020. This may mean that certain employees are unable to return to work, if workplace reopening was permitted before the shielding period ceases. Employers are strongly advised to respect this, in the light of the fact that it is integral to an individual’s health and safety.

Some shielding employees may be able to continue to work from home; this should be discussed with them before any decisions are taken. Alternatively, shielding employees can also be furloughed under the Coronavirus Job Retention Scheme (CJRS) which is now due to continue in some form until the end of October 2020. Furloughing shielding employees is, of course, particularly useful where they are unable to perform their role from home.

There may also be employees who have children or dependants who are shielding and this prevents them from returning to work for care reasons, even where individuals are not shielding themselves. It is unlikely that wider members of their family will be able to help with care giving, in the current circumstances.

What about vulnerable or pregnant staff; should they return to work?

Answered 13 May 2020

Employers should discuss concerns with vulnerable workers to determine whether they are comfortable returning to work. Employers must take steps to address the risks for vulnerable members of staff, including those that are pregnant. This may include considering the provision of PPE for the benefit of these individuals, which should form part of an employer’s risk assessment before reopening the workplace.

Vulnerable workers may be reassured that appropriate steps have been taken in line with government guidance. However, we recommend providing these individuals with the opportunity to discuss any concerns they may have from the outset. Open communication between an employer and its workforce is key.

Where appropriate and if possible, employers may decide that vulnerable staff can continue to work from home, in the short term.

What if workers are reluctant to come to work because a family member is shielding or is vulnerable?

Answered 13 May 2020

Employees with vulnerable family members at home may, understandably, be concerned about returning to work.

Employers have the option of furloughing workers whilst the CJRS remains open or, alternatively and where appropriate, workers may be able to work from home. Employees may also want to take some annual leave or dependency leave, in order to assist them and their family member during the adjustment period. Employers should discuss any concerns with staff and seek an agreed way forward.

Prudent employers should also document how a certain decision has been reached (including what, why, when and how) and keep this on the employee’s personnel file.

What if workers have caring responsibilities that prevent them from returning to work?

Answered 13 May 2020

Some workers may be unable to return to work straight away, if their child’s school or nursery has not yet reopened. As nurseries and schools will be reopening on a phased return basis, workers may need to work variable hours (or continue to work from home, where possible) until their children are able to return fully to school or nursery.

As set out above, employers have the option of furloughing workers whilst the CJRS remains open. Workers may also want to take some annual leave or dependency leave to assist them during the adjustment period. Employers should discuss any concerns with staff and seek to agree a way forward. As mentioned previously, documenting any decision making is sensible.

How should we deal with a member of staff who is refusing to return to work?

Answered 13 May 2020

Open employer/employee communication is of paramount importance. Employers should take time to discuss concerns with the employee to determine if there are any particular vulnerabilities or risks that the employee is concerned about and which could be addressed before they return to work.

Employers should also reassure workers that they are following government guidance and have undertaken comprehensive risk assessments to safeguard the health and safety of their employees and those who come into the workplace.

Ultimately, staff have a contractual obligation to provide services to their employer, but employers should seek legal advice on how best to enforce their contractual position in order to minimise the risk of claims.

Can we ask workers to self-declare Covid-19 symptoms?

Answered 13 May 2020

We consider that this is possible, provided employers are clear as to the reason for the self-reporting requirement: namely, to protect the health and safety of others. To ask this of its workforce, employers should have adequate privacy safeguards in place. However, employers cannot currently insist that this information is provided.

Can we continue to furlough staff once our workplace re-opens?

Answered 13 May 2020

The CJRS is in place until the end of October 2020, although the terms on which furlough will be available from August 2020 onwards are not yet clear. Employers are able to take advantage of the scheme and furlough qualifying staff, as required, for as long as it is available.

We recommend employers refer to the Government guidance (available here) and to our furlough FAQs guidance note (available here) in the first instance.

How should employers prepare for a rise in flexible working requests or requests for home working?

Answered 13 May 2020

Flexible working requests must be dealt with in accordance with the usual statutory process. It is likely that there will be an influx of applications when workplaces re-open; staff may now be used to working from home and, in some cases, working different, or more flexible, hours. Employers should have a flexible working policy and should follow this when considering any request for flexible working from their workforce.

Applications for flexible working can only be refused if one of the eight prescribed grounds applies (for example, an inability to reorganise work among existing workers, or the burden of additional costs). Where employees have successfully worked from home during this time, employers may find it difficult to identity statutory grounds to refuse such an application. If in doubt, employers should seek legal advice when they receive an application and certainly before making any decision.

How should employers address a reduction in workload?

Answered 13 May 2020

Employers should continue to consider their financial viability and staffing requirements in the usual way. Employers are likely to have carried out an assessment of finances at the start of the pandemic, in order to determine whether redundancies needed to be made when workplaces were closed following the government’s instruction.

Employers could continue to take advantage of the CJRS (while it is open) to save costs, or consider redeploying staff to busier areas of the business or organisation.

However, employers should consider taking legal advice to consider their options. If workloads have decreased significantly, and are unlikely to pick up in the short term, then redundancies or seeking to change employees’ terms and conditions of employment (for example, by reducing pay and/or hours) may be necessary.

In these scenarios, employers should be consulting with the affected employees and, depending on the numbers affected (and the period during which any redundancies may be carried out) the employer may need to consult collectively, as well as with individuals. This brings with it a whole host of specific considerations and legal obligations.

In the event that redundancies and/or changing the terms and conditions of staff (whether temporarily, or otherwise) appears the only option, we strongly recommend seeking legal advice.

Should employers be providing specific support to employees who have been bereaved or who are struggling with their mental health?

Answered 13 May 2020

As a minimum, employers should follow their usual processes for supporting the welfare of staff. Issuing a reminder to staff of the support available to them, ahead of their return to work, is likely to be helpful.

It may also be that employers need to respond to employees on a case by case basis. Whilst some employers will have policies dealing with this type of scenario, bereavement is, inevitably, a very personal matter which affects everyone differently. Although employers should treat their workforce fairly and equally, we recommend that employers are flexible in their approach with any employees who have lost loved ones during this difficult time.

Similarly, those suffering with mental health may find that their material symptoms have worsened. Developing and nurturing a supportive workplace culture of open communication and positive staff morale has, arguably, never been more important.

What should employers do about annual leave when staff return to work?

Answered 13 May 2020

As annual leave continues to accrue whilst on furlough, it is likely that employers will have some staff who will want to take their annual leave as soon as the workplace re-opens. This is likely to be inconvenient for employers, particularly as this will be the moment where businesses are getting back on their feet and, accordingly, a strong, available workforce is essential to ensure operational efficiency.

Employers can require an employee to take statutory annual leave (5.6 weeks or 28 days for full time staff) on particular days, provided it gives the employee the appropriate advance notice. Further information can be found here.

How should employers handle grievances?

Answered 13 May 2020

Employers have had to respond to the significant impact of this global pandemic quickly and decisively. Workers may feel that they have not been treated fairly, or may disagree with the way something has been dealt with. Accordingly, employers may see a surge in the number of grievances they receive.

For example, some employees may resent that they have continued working normal hours, whilst some of their colleagues have been furloughed and are therefore at home and not working, either on 80% pay or, quite possibly, full pay (where the employer uses its discretion to top up the additional 20% pay).

Alternatively, a disabled employee may feel that their employer has failed to make reasonable adjustments to take into account the employee’s new homeworking environment.

Businesses and organisations should have grievance and disciplinary policies in place and will need to respond to any grievance by following their internal policy. This should include:

  • responding to the grievance promptly
  • requesting further information (if required)
  • arranging a grievance meeting with the employee (and allowing them to be accompanied by a colleague or trade union representative)
  • allowing them to appeal against the employer’s decision.

It is also worth noting that staff may raise issues in informal ways (possibly with their immediate line manager) and may not lodge formal grievances. Line managers should be prepared to respond promptly, arranging to speak with the aggrieved employee and clarifying whether the employee wishes their concern to be treated as a formal grievance.

Should employers be unsure of the steps required when handing a grievance and/or if they do not have a disciplinary and grievance policy in place, we recommend taking legal advice.

ACAS has published its own guide in relation to dealing with disciplinary and grievance processes during lockdown.

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About the Author
Michael Stokes, Partner, Head of Employment and Immigration Team

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