In this section:
The guidance documents published on 11 May are:
With regard to employment, the announcement involved a subtle change. Previously, the government’s position during the lockdown had been that everyone should work from home if they can and only go to work if they must.
Following the announcement, the position is now that people should continue to work from home if that is possible but for anyone who can’t work from home they should be actively encouraged to go to work – “work from home if you can, but go to work if you can’t”.
So, what has actually changed? Many businesses had already adjusted their practices where necessary to enable staff to work from home and have been doing so successfully. So for those businesses that have adjusted, the position will continue to stay the same. The main changes will most likely be seen by industries such as manufacturing and construction, where employees have been unable to carry out their work from home.
However, all employers should be reading the guidance and planning for the future. So what does the guidance say?
Government guidance – “Our plan to rebuild”
The document confirms the position that individuals should continue to work at home wherever possible. All workers who cannot work from home should travel to work if their workplace is open but should, where possible, avoid using public transport.
Government guidelines – “COVID-19 Secure”
The government has published the new “COVID-19 Secure” guidelines to ensure that workplaces are safe in order to minimise the risk of infection. These guidelines comprise eight separate guides tailored to different types of business, which have been produced after consultation with stakeholders, unions, industry bodies and the devolved administrations. The guides cover the following sectors:
Following the publication of these guides, employers should speak with staff about when (or if) they plan to reopen their premises and have staff return to work.
Following the Prime Minister’s announcement, it is likely that the first businesses to return to work will be those in the construction, engineering and manufacturing industries. For other businesses such as those providing professional services, many may have adjusted effectively to working from home.. In any event, employers should be as clear as possible with staff on whether they anticipate a return to work or whether, for now, it is ‘business as usual’.
The eight separate guides contain information specific to a certain type of business and therefore employers would be well advised to consult their relevant guide before any staff return to work.
Carry out a COVID-19 risk assessment, in consultation with staff or trade unions
This requirement operates within the ambit of the health and safety legislative. The government also encourages employers to publish the results of the risk assessment on their website (they expect all businesses with over 50 employees to do this). Read our section “Health and safety – Health information and data protection” for more information.
Maintain 2 metre social distancing, wherever possible
Employers may need to redesign their workspaces so that the social distancing rules can be adhered to. This will involve rearranging an office layout and seating plans, and using floor tape or paint to mark out areas to help workers to keep two metres apart.
Where the two metre rules cannot be met, employers should reduce the risk of transmission
This could be done by installing protective barriers to shield individuals, or ensuring all staff face away from each other if they have to work in close contact.
Minimising contact or interaction between employees
Employers are advised to minimise the opportunity for employees to come into contact with each other. You could stagger start and finish times so employees do not all come into the workplace at the same time, have different teams working in the office at different times, reduce the need to move around the office (e.g. have phone calls rather than face to face meetings), and introduce one-way systems in the office.
Minimise contact with third parties (e.g. customers)
Therefore, wherever possible, meetings with customers should take place remotely. Where contact is required, e.g. a site visit is necessary, then social distancing should still be observed.
Cleaning the workplace
The workplace and any equipment should be cleaned frequently, in particular high contact surfaces like door handles and keyboards. Hand washing facilities and sanitisers should also be provided at entry and exit points, with signs and posters to build awareness and maintain personal hygiene standards.
The guides also say that there are only a few circumstances when wearing a face covering may be marginally beneficial, for example in enclosed spaces where social distancing isn’t possible.
Some employees will be nervous or reluctant about returning to work. This needs to be treated on a case by case basis. Read the section “The reluctant (or impeded) employee” for more information.
In this section:
Employers have obligations under the Health and Safety at Work Act 1974 to ensure that, so far as reasonably practicable, the health and safety of employees is maintained. This includes ensuring that staff are provided with sufficient information in relation to health and safety, and that working environments are maintained in a safe manner without risk to health. These obligations still apply with staff working at home. You still have to consider individual circumstances regardless of where the workplace is located. Read our blog “COVID-19: The legal issues of working from home” for further guidance on working from home.
Employers need to carry out COVID-19 risk assessments which identifies the necessary risk and establish sensible measures to minimise them. This has got to take into account their individual work place, particular areas for risk and also dealing with clinically vulnerable and extremely clinically vulnerable staff.
If an organisation has less than five workers, or an individual is self-employed, nothing needs to be recorded in writing as part of the risk assessment. However, for all other employers a written risk assessment is required. The government also encourages employers to publish the results of the risk assessment on their website and they expect all businesses with over 50 employees to do so.
Employers should actively engage and consult with their staff (or health and safety representative/recognised trade union) when conducting risk assessments and should share the results.
It is absolutely vital that employers implement these risk assessment processes.
Employees should feel able to highlight any concerns they have upon returning to work to their employer. If the problem persists, and employees are not satisfied with the health and safety measures,, they can report the issue to their local authority or the Health and Safety Executive who, upon review, can force the employer to act.
Employees are protected from detriment and dismissal as a result of “whistleblowing”. This includes raising concerns about health and safety, or raising concerns about breaches of data protection legislation.
We anticipate that this will be an area of increased concern for employers. There may be many employees that have genuine but unfounded concerns. There may also be employees looking to use whistleblowing as a reason not to return to work. It will involve careful management of these concerns to avoid potential Tribunal claims.
The key will be managing grievances properly and sensitively. It will also be extremely helpful to have your risk assessment in place and logic for all your attempts to minimise risk. It may also be helpful to get information on the employee’s particular concerns and also rely on your internal health and safety experts or external consultants for evidence of the reasonable steps you have taken.
The COVID-19 crisis does raise issues in relation to health data. It is classed as ‘Special Category Data’, which means it is more sensitive than other types of personal data. This data must be even more carefully protected..
So when might employers need to store and process health data? Some examples:
On 28 April 2020, the amount of NHS testing that can be carried out was significantly extended. This means more staff in the work place have the option of being tested by the state. You may wish to encourage staff to take this option if they can and also ensure they can return to work quicker. You need to be careful about storing this data and also who you share it with.
You may wish to store information about an employee who has had a positive diagnosis of COVID-19. You may wish to keep this for future records or to risk assess the potential of them having some immunity going forwards. This will all depend on the scientific evidence that emerges over the coming months. You must notify the employee that that is how you intend to use and store your data. Data protection law does not prevent you from taking the necessary steps to keep your staff safe, but it does require you to ensure you have a lawful reason for storing this data and to inform the employee.
You may also have issues with data protection if you decide to test your staff before they return to the work place (such as temperature testing). The temperature of an employee is still sensitive health data about the employee. This, therefore, has to be dealt with carefully as special category data.
In the future you could also be looking at antibody testing for staff. This will need particular consideration and delicate management.
You are likely to be able to process this testing for the legitimate interests of preserving health and safety in the work place. However, it is important that employees know how their data is going to be processed and used. We would suggest that you update your privacy notice to include information about how you are going to deal with the temperature testing and potentially antibody testing. This needs to be communicated to staff in advance of any testing.
It would also be sensible to undertake a data protection impact assessment on the activity being proposed. We would suggest that this includes:
It’s really important that you minimise the retention of this data., Most employers will have robust processes for storing personal data and special category data, but this does need to be looked at in the light of COVID-19.
You have an obligation to maintain confidentiality for all staff. This is balanced against your obligations as an employer to ensure the health and safety of all employees. You can therefore share data with authorities for public health purposes or the police where it is necessary and appropriate.
You may also share this data in the workplace if it’s absolutely necessary and goes no further than needed. It would be sensible to undertake a risk assessment in relation to who needs to know about this information. For example it may be necessary for employees to know that someone has tested COVID-19 positive in their work place. This will no doubt also be complicated by COVID-19 tracking app which may notify a number of your employees at one time in relation to a potential COVID-19 contact.
There may be times when, as an employer, you want independent medical evidence either to do with the vulnerability of an employee or, to judge whether the health and safety steps that have been put in place are reasonable. Occupational health will be able to look into the individual circumstances, the work that’s undertaken and consider the best course in relation to protecting the employee from COVID-19. A referral to occupational health is common in most work places where you have an individual with particular health needs and certain steps need to be made. It is also common to consider if an employee is disabled within the meaning of the Equality Act and your obligations for reasonable adjustments. Ultimately, the emphasis here is that the employee should return to work as best possible. This is a balance between their needs and the ability to minimise any risks to them in the work place.
We would strongly advise that any referral to occupational health is well considered and detailed, so as to get the absolute best information from the medical experts. Each referral and report will be different and this is why the COVID-19 crisis will create a lot of work for employers in storing and processing health data. There will not be a one size fits all solution. Employers therefore need to be prepared to deal with complexity of individual situations but with a larger volume of employees affected by the situation than ever before.
In this section:
We are already getting questions about employees being referred to as “reluctant returners”, which describes people who, for one reason or another, cannot or should not return to work. The phrase reluctant returner suggests that a conscious decision has been made by the worker, but it is more nuanced than this. Reluctant returners will fall into a number of categories, including the following:
In all of these cases, a problem only arises if the employee cannot work from home. If the employee can work from home then the guidance has not changed. It would not be reasonable to force a worker to come to work if he or she could work from home.
Some employees will be, or will consider themselves, unable to return to the workplace due to health reasons, falling into the category of people referred to as “vulnerable” by the government. Vulnerable people are currently split into two groups:
Clinically vulnerable people are advised to take particular care to minimise contact with others outside of their household. Clinically vulnerable employees can, in principle, return to the workplace, subject to guidance such as offering them the safest available on-site roles. We suspect people falling into this category will often be reluctant to return for good reason. Employers will need to think carefully before issuing instructions to work to vulnerable employees.
Extremely vulnerable people are strongly advised to stay at home at all times and avoid any face-to-face contact. This is called “shielding”. Shielding employees will not be able to return to the workplace even under the latest plan/guidance. The guidance also says that employers should pay “particular attention” to people who live with extremely vulnerable people. Such people may be very reluctant to return to work. Offering such employees the safest on-site roles (i.e. treating them like clinically vulnerable employees) appears to be the government’s intention.
Employers will have employees who are not vulnerable or shielding, but who cannot return to the workplace because of other responsibilities. This is likely to relate to parents of young children where they are not able to return to school or pre-school (or post-school) care. An employee who is unable to work due to caring responsibilities will need to agree the basis for their continued absence. The options will include:
Employers should be sympathetic to employees facing caring responsibilities. The government is trying to open the economy and get business moving before the education and caring sector gets back. This is always going to cause tension and difficulties.
There will also be a category of employees who will not send their children back to school even when they first re-open. There is currently talk about allowing certain age groups to return to school before the school summer holidays. However, we are already seeing posts from parents who say that they will not be sending their children to school even when the schools re-open. This raises an interesting question as to whether the worker is genuinely impeded from working. There is no legal impediment to them sending the children to school; instead it’s a conscious choice. Employers should discuss the employee’s concerns and try and work out a way to assist the employee to work. The options will include those referred to above.
The guidance is not to travel using public transport but instead to use a car or bicycle, or to walk. Some employees rely on public transport and will not have a car and may be too far away (or may feel they are too far away) from work to cycle or walk. This raises an interesting point. Some people positively relish a long cycle to work; others may struggle or not be confident with a few miles of cycling.
There will also be employees who could catch a bus or train to work but would prefer not to, or are fearful of the health risks. An employer will need to consider the extent such employees can be instructed to come to work. Each case will need to be looked at on its own merits. and the options to offer or deploy will depend on the employee’s reason for not being able to get to work.
There will also be a category of people who are not vulnerable, shielding, carers or with transport issues, but will be worried about leaving their homes to return to work. We refer to these as “concerned others”. An employer will need to decide how it treats concerned others and options will include:
The same principle may also apply more broadly, such as to employees who are refusing to take public transport or making a positive choice to not let their children return to the education system. However, these cases will depend very much on their particular facts and it’s not possible to address every type of objection or circumstances an employer will face.
An employee must comply with an instruction from an employer which is reasonable and lawful. If an employee refuses, it is a matter of misconduct and can lead to a disciplinary warning or dismissal. We have been involved in many cases like this over the years. A number of these were met by unfair dismissal claims. The focus here will therefore be on what the instruction is. and whether it is reasonable and lawful. In many cases, this will depend on:
It may be reasonable and lawful to instruct a healthy employee without caring responsibilities to return to work., It may not, however, be reasonable to give the same instruction to another worker. An employer really does have to look at each case on its own merits.
Another interesting aspect will be pay. A basic principle of common law is the wage-work bargain. An employee must be ready and willing to work in order to be entitled to wages. If an employee refuses to work without a lawful reason then the employer may not have an obligation to pay the employee. This is another aspect which comes with a huge “handle with care” warning sign. Advice should be sought if an employer is thinking about making a deduction from pay due to an employee refusing to work.
Disciplining or dismissing an employee who refuses to come to work due to a reason relating to COVID-19 will need extreme care. An employer should take specialist advice because it will raise issues including:
It is also important to consider any potential discrimination complaints arising out of any blanket instruction to return to work. Complaints could be brought under various areas of the Equality Act 2010 such as:
It is an implied term in all employment contracts that an employer must not act in a manner calculated or likely to destroy the trust and confidence that exists between employer and employee. A breach of this term can lead to constructive dismissal claims. Employers need to be wary of this. We predict an increase in such claims as we start to come out of lockdown. Employees may argue that trying to force them to work in what they believe are unsafe condition is a breach of this implied term.
Employers should not just tell employees to return to work on a given date. Employers should consult with employees about a return and this will allow a discussion to start about any concerns or impediments.
Employers have a legal duty to consult with employees in relation to the introduction of any measure at the workplace which may substantially affect the health and safety of those employees. Employers who recognise trade unions will be consulting the union. However, if there is no union, it does not mean an employer is not required to consult. Consultation is then either direct with employees or with elected representatives.
Employers will (or should) want to explain any strategies it has put in place to minimise risk, i.e. as a result of the risk assessment that the employer will do (or should have done).
In summary, this is going to be a minefield in which employers will need to navigate and tread very carefully.
If you would like us to call you at a convenient time, please fill in the form below.
For more information on how we deal with your personal information please see our Privacy Notice.