Returning to the workplace was a topic of the Prime Minister’s announcement on Friday 17 July, confirming that more easing of lockdown restrictions is to take place in the foreseeable future. In particular, it was confirmed that, from 1 August, the government is going to “give employers more discretion and ask them to make decisions about how their staff can work safely”.
More discretion for employers on workers returning to the workplace
Currently, the advice and guidance from the government is that people should only be going to work if they cannot work from home – this has been the position since the imposition of the lockdown in late March.
The announcement on 17 July indicates that the government’s policy on this issue will be changing from the 1 August whereby employers can decide for themselves whether they wish to order their employees to return to work or continue with remote working. However, employers must consult with their employees on any return to the workplace and must ensure that their workplace is COVID-19 secure, with adequate social distancing in place.
What does a COVID-19 secure workplace mean?
We have touched on this topic in our existing blogs (Coronavirus (COVID-19) and returning to work), but broadly speaking there are strict measures that employers need to follow in order to make their workplace secure. These include, but are not limited to, the following:
- Carry out a COVID-19 risk assessment and share the results of the assessment with your employees, taking onboard any concerns raised.
- Observe the “1m plus” rule of social distancing. This requires employers to ensure staff are 2m away from each other in the workplace but where this is not possible this can be reduced to one metre provided additional steps to reduce transmission are taken.
- Introduce one-way systems to minimise contact.
- Frequent cleaning of objects and communal areas.
What can employers do?
From 1 August, employers will be able to require their employees to return to work and have discretion as to how their staff can work safely. From a practical point of view, this seems to leave employers with three main options.
1. Continue working from home
Employers may feel that working remotely from home has worked well so far and that, despite the announcement, the best way they can ensure their staff are working safely is to continue asking them to work from home. Employers are still entitled to do this at their “discretion” as to how they ensure safe working.
There are obvious benefits in taking this approach, namely that employers will not have to deal with any disgruntled or aggrieved employees who are reluctant to return at this stage. However, those conversations will need to happen at some point therefore it may be beneficial to start phasing their employees back to work. Remember the consultation process is the key aspect in any return to work, dealing with any employee concerns about the employer’s return plans.
2. Limited or phased return to work
This is likely to be the most popular approach amongst employers and involves limiting the number of employees returning to the workplace to those who wish to return, with the remainder continuing to work from home. Employers should have already carried out a risk assessment and consultation with their employees about a return to work, therefore they may already have any idea of any volunteers who wish to return.
This seems to be the safest approach from the perspective of minimising possible employment claims as it accommodates both those employees who are struggling from working in isolation at home, as well as those that are anxious about a return and wish to remain at home. Limiting the numbers returning will also allow employers to test their proposed working practices and eliminate any concerns early before the workforce returns in full at a later date when it is safe to do so.
3. Full return to work
Technically, employers could impose a blanket policy requiring all their employees to return to the workplace because they will have discretion to decide how they ensure safe working. However, it seems unlikely that whilst social distancing remains in place, employers will be able to facilitate a return for all employees and have a COVID-19 secure workplace.
Further still, employers could expose themselves to an influx of grievances and potential whistleblowing claims in respect of health and safety if they were to impose such a policy. Employees may also be able to reasonably point to the fact they have been able to work from home during lockdown thus far in support of any claim.
Should an employer consider any relevant exceptions?
Certain employees may need greater consideration before an employer requires them to return to the workplace. The following are the key types of employees that may fall under this:
- Clinically vulnerable employees
These individuals are no longer required to shield from 1 August and thus can also be ordered to return to the workplace. However, some of these employees may be considered disabled and a reasonable adjustment for such employees may be to continue to work from home.
Returning to work may also cause a problem for employees who live with clinically vulnerable people who feel a return would cause them danger – COVID-secure guidance also requires employers to pay particular attention to those who live with someone who is clinically vulnerable.
Please see my recent blog on shielding for more details on this issue and also the statutory rights that protect employees who refuse a return to work.
- Lack of care for dependents
Reference was made to this issue within the latest announcement, confirming that, if schools are not open and workers cannot get childcare, employers should not expect staff to return. The Prime Minister remarked that such employees should be “defended and protected on that basis” Employers should bear this in mind and try to be as flexible as possible with employees that this will affect.
- Public transport
The government announced on Friday 17th July that anybody will now be able to use public transport – including to get to work – whilst also encouraging them to consider alternative means of transport where possible. This changes the previous policy that advised people to avoid using public transport where possible.
Despite this, many people remain afraid that using public transport will expose them to the risk of being infected by Coronavirus and employers should still be wary that a number of their employees rely on public transport in order to travel to work. This should be considered by offering adjustments such as staggering working times outside rush hour, providing parking if possible or making appropriate other allowances.
If you would like to discuss any issues covered in this update please contact a member of the Employment team.
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This update was co-authored by Fred Chandler, Trainee Solicitor and Claire Merritt, Partner.