Lifting the lockdown: what employers should be thinking about

The pandemic has brought about numerous challenges for employers and with the continued easing of lockdown measures, it is unlikely that these will disappear anytime soon. As businesses re-open and staff begin to return from furlough leave, employers will need to consider various issues. This article considers some of the key employment law and health and safety issues in this area.

Recap on current position

Following government announcements in May 2020, those who cannot work from home should attend their workplace if it is open (which now includes many retailers, pubs and restaurants), and employers should follow the relevant “COVID-19 Secure” guidelines to help keep their workplaces safe. These can be accessed here.

Health and safety

The government has also advised all employers to do the following:

• Carry out COVID-19 risk assessments in accordance with the Health and Safety Executive’s (HSE) guidance.
• Develop cleaning, handwashing and hygiene procedures.
• Take steps to help people who can work from home.
• Where possible, maintain a two metre distance between individuals.
• Where maintaining a two metre distance between individuals is not possible, do all that they can to mitigate the risk of transmission (such as erecting divides between desks).

Practically, therefore, employers will need to consider matters such as:

• Whether their office space needs re-configuration, for example, to move desks further apart or to enable protective screens to be erected.
• Whether they need to split their workforce into teams which work on a rotating basis to reduce the number of employees in the building at any one time or consider strategies to make working from home arrangements more permanent.
• What to do about office space which is shared with other tenants.
• Whether they have enough of the ‘basics’ (such as protective equipment).
• How they can implement one-way flow routes through the building.

This government guidance does not supersede employers’ normal legal obligations relating to health and safety, employment or equalities, so employers should continue to have regard to these. However, adherence to the guidance will very likely be taken into account when considering whether an employer has complied with their general health and safety obligations.

Generally, employers have a variety of statutory and common law duties for health and safety, and the steps they need to take will, to a degree, depend on the industry in which they operate. That said, the Health and Safety at Work etc. Act 1974 places a general duty on employers to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all their employees. Employers with more than five employees are also required to have a written health and safety policy.

Mental health

Linked to health and safety, staff with stress, depression or anxiety are likely to have been adversely impacted by the ‘lockdown’ (and the thought of returning to work) and employers should support such employees as much as possible. In particular, it is important to communicate effectively with staff to keep them informed and help alleviate any concerns.

Consulting with staff

Employers are required to consult with their employees about health and safety matters. Such consultation can be with the employees directly or with elected employee representatives. If an employer recognises a trade union, the relevant trade union representatives will need to be consulted with too. The HSE has published guidance on consultation obligations during the pandemic, which is available here.

Staff travel

Many individuals who commute to work will be, understandably, worried about returning to commuter life on crowded tubes, trains and buses. Employers should think about their staff’s travel arrangements and consider whether steps can be taken to mitigate the risks. Changing an employee’s start and finish times so that they do not travel at peak hours seems an obvious option and is required under the draft government guidance. It might also be appropriate in some cases to arrange separate travel for vulnerable staff (such as those who are pregnant).

Employers with internationally mobile employees who travel a lot should re-think their working practices given international travel is (and likely to be for some time) restricted. Employers should also check that any insurance policies for international travel provide adequate cover.

Policies and procedures

This is a good time for employers to review their policies and procedures to ensure that they are fit for purpose, especially those relating to flexible working, home working and IT security, which are pertinent in the current climate. Provided such policies and procedures are non-contractual (as most will be), employers will not need employee consent to make any changes; however, it’s important that any updates are properly communicated to staff.

Annual leave

Employers should assess employees’ annual leave entitlements and decide how and when employees should take leave (assuming most employees won’t have voluntarily taken leave during the ‘lockdown’ or whilst on furlough leave). Employers will want to ensure that they have sufficient staff numbers to operate their businesses once they have re-opened, so they might want to put new holiday rules in place. The government has confirmed that employees can carry over some of their annual leave entitlement for two years where they have been prevented from taking leave due to the pandemic, which might help with this.

Amending salaries and benefits

Employers who have introduced salary cuts and pay deferrals to help manage their cash-flow will need to decide whether the measures remain necessary and for how long. It is important that employers handle these matters delicately (and, where appropriate, consult with staff) to ensure that they do not give rise to breach of contract claims.

Redundancies

With the furlough scheme coming to an end on 31 October 2020, many employers are now considering their future staffing requirements. Employers wishing to make redundancies need to ensure that they follow the correct procedures and deal with them fairly. See our earlier note on making redundancies here.

If you have any queries or would like to discuss employment law issues related to coronavirus, please contact, Joe Beeston, Senior Employment Associate in our Employment team.

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.