18 May 2020

COVID-19: Employment Law Update

It’s hard to keep up: barely a day goes by without another change to government guidance or policy being made. This article summarises the recent key changes which employers should be aware of.

Coronavirus Job Retention Scheme

It has been announced that the Coronavirus Job Retention Scheme (the Scheme) shall be extended to the end of October 2020. This will be welcome news for the many employers who have furloughed staff over the recent weeks.

For further background about the Scheme, please see our earlier article here.

Whilst we are awaiting further guidance about the Scheme’s extension, we understand:-

  • the extension will be available to all employers, regardless of industry or sector
  • there will be no changes to the Scheme until the end of July 2020
  • from August 2020, the Scheme will be more flexible, allowing employees to return to work on a part-time basis (which is not currently permissible)
  • employees will continue to receive at least 80% of their salary (up to the maximum of £2,500 per month), although it is expected that employers will need to share this cost from August 2020. It has been reported that employers will need to cover 20-30% of salaries, as well as employer national insurance contributions.

Further, the government has now collated the various guidance notes and factsheets about the Scheme, including how employers can calculate payments and make a claim. The consolidated guidance can be accessed here.

COVID-19 Recovery Strategy

The government has published its strategy to get the country back to normal. A copy of this guidance can be accessed here.

The key points for employers to be aware of are:

  • the government says it will work with businesses and unions to enable individuals to return to workplaces safely
  • for the foreseeable future, workers should continue to work from home wherever possible
  • workers in England who cannot work from home should travel to work if their workplace is open (in fact, they are “actively encouraged”), and employers should follow any guidance on workplace safety

The guidance also sets out a number of ‘general principles’ which individuals should have regard to. These include reducing the number of people they spend time with at work, following advice given to them by employers, walking or cycling to work wherever possible and avoiding peak travel times.

Steps employers should take: COVID-19 Secure guidelines

With workers now being actively encouraged to return to work if they cannot work from home, employers should think about the steps they need to take to allow staff back safely. To assist with this, the government has produced COVID-19 Secure guidelines for workplaces.

This guidance includes general guidelines which apply to all employers and which should be implemented as soon as possible. For example:

  • keep staff working from home wherever possible
  • carry out COVID-19 risk assessments in consultation with staff or trade unions (where applicable). These are aimed at identifying and minimising risk. If possible, employers should publish the results of their risk assessment on their website: the government “expects” all businesses with over 50 employees to do so
  • social distancing of two metres should be maintained and workplaces should be re-designed to accommodate this (such as having staggered start times and creating one way walk-throughs). If a two metre distance cannot be maintained, the guidance suggests that employers could erect barriers, ensure staff face away from each other and/or create workplace shift patterns or fixed teams designed to minimise staff interaction
  • ensure proper cleaning process are adopted and that adequate handwashing facilities and/or sanitation are provided

In addition, the government has published eight workplace-specific guidance documents for employers to consider. These cover:

  • construction and other outdoor work
  • factories, plants and warehouses
  • laboratories and research facilities
  • offices and contact centres
  • other people’s homes
  • restaurants offering takeaway or delivery
  • shops and branches
  • vehicles

The guidance notes can be accessed here.

Employers should also continue to protect clinically vulnerable staff and those categorised as “extremely vulnerable” (being those who have been advised not to work outside their home). Extremely vulnerable staff are not allowed back to the workplace. Those who are vulnerable but are unable to work from home, can be asked back, but it is important that all steps are taken to protect their well-being and they should be offered the safest roles on-site.

The guidance is helpful and gives employers lots to think about. Obviously, every workplace and workforce is different, so it will be important for employers to consider the guidance in light of their actual circumstances. It seems to us that carrying out a robust risk assessment and maintaining open communication with staff will be crucial.

For further information about issues which employers should consider when bringing staff back to work, please see our earlier article here.

Data Protection

In one of our recent articles (accessible here), we looked at the data protection issues which employers should consider. The UK’s data regulator, the Information Commission, has now issued specific guidance around testing and processing employee health data during the pandemic.

The guidance can be found here. It confirms that employers should be able to process such health data, but reminds employers that such processing needs to be in accordance with usual data protection principles (such as keeping the data collected to a minimum and keeping it safe) and that they need to carry out a data protection impact assessment. The guidance also reminds employers about the need to be open and transparent with staff.

If you have any queries regarding these updates, please contact Joe Beeston, Senior Employment Associate in our Employment team for more information.

Disclaimer

The current global crisis is evolving rapidly, and the rules and guidance for individuals, companies and other entities to manage its implications are similarly fast moving. Notes such as this may be out of date almost as soon as they are published. If you have any questions prompted by this article or on any other matter relevant to you, please get in touch with your usual contact at Forsters.

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