Easing lockdown and planning for a return to the workplace: key considerations for employers

We are all now having to grapple with the easing of lockdown restrictions. For some UK employers this means turning to the difficult task of reopening their workplaces and considering what ‘normal’ should look like after the end of lockdown. At the forefront of this will be protecting the health and safety of staff coming back to work. 

What duties do employers have?   

Every employer has a duty, so far as it’s reasonably practicable, to ensure the health, safety and welfare at work of all its employees. This means that employers will need to do all they reasonably can to set up a safe work environment for their staff to limit the risk of them contracting Covid-19 in the workplace.

Whether businesses are envisaging a return to work for their staff as early as this week or later in the year, they will need to take the following key steps to comply with their legal obligations:

• Continue to follow government guidance. The government has announced that for the foreseeable future, workers should continue to work from home rather than their normal physical workplace, wherever possible. Where homeworking is not possible, the government is now encouraging employees to go to work (with the exception of the hospitality and non-essential retail), whilst still maintaining social distancing. Further guidance to make the workplace Covid-19 secure has now been released, which should be followed as soon as practicable (see here). Further updates will follow, but employers should bear in mind that following guidance is not, on its own, all they will need to do to comply with their health and safety obligations.
• Conduct a risk assessment tailored to the dangers of coronavirus. Employers will need to consider (i) what the risks of people working together at the office are and (ii) how the risk can be avoided. Individual circumstances of staff will also need to be considered.
• Consult with employees or their representatives (including unions where appropriate) about what a “safe system of work” should look like and the measures being proposed.  Employers have a duty to consult with their employees, or their representatives, on health and safety measures and involving employees will also contribute to better decisions, stronger commitment to implementing decisions, and greater co-operation. Following the risk assessment, results should be shared with employees and, if there are over 50 employees, shared on the organisation’s website. Employers should display the five steps to safer working together notice in their workplace to show they have followed the guidance (see here).
• Implement and maintain a safe system of work.  Any safe system of work will be likely to require both a change in staff behaviour as well as changes made to the physical workplace itself.  Employers are responsible not only for implementing changes but ensuring that a safe system is maintained. A safe system of work may include:
• Varying and staggering the hours staff are required to be in the office;
• Arranging for staff to split their working week between home and office working; 
• Phasing the return of different parts of the workforce;
• Removing hot-desking and ensuring there is sufficient space so that staff can stay 2 metres away from each other;
• Providing additional hand-washing facilities such as hand sanitizer on desks and ensuring there is an adequate supply of soap and hand sanitizer at all times;
• Increasing the frequency of cleaning in the workplace and ensuring that appropriate cleaning techniques are used, such as damp dusting;
• Ensuring effective ventilation is in place;
• Setting up one way routes around the office;
• If employees need to come into the office and social distancing cannot be maintained, providing suitable personal protected equipment (“PPE”). However, the government guidance states that workplaces should not encourage the precautionary use of extra PPE to protect against COVID-19;
• Encouraging employees to wear face coverings; and
• Reminding employees to self-isolate if they have Covid-19 symptoms.

Further guidance for a safe workplace can be found in the government’s Covid-19 secure guidance.

• Continuously review developments surrounding covid-19 and government guidance and update their safe work plan accordingly.

Some key questions going forward

Can employers ask their workers to self-declare Covid-19 symptoms? How much information can be disclosed to other workers?

Employers can ask employees to self-declare symptoms. However, they should make clear that this is to protect the health and safety of staff and ensure that adequate privacy safeguards are in place for the safe storage of this data. Employers are unlikely to be able to insist that employees self-declare.  

If a staff member has Covid-19 symptoms or has tested positive, relevant staff should be told that they may have come into contact with a person affected by Covid-19.  No further details about the affected person should be given. Disclosure of the identity of an infected worker to others should only occur when absolutely necessary for health and safety reasons, in compliance with data protection regulations, and only to the extent necessary (including on a “need-to-know” basis).

What if an employee does not want to return to the office?

If government guidance allows, and a safe work place has been set up, employers can require staff members to return to the office. If an employee refuses to engage with and does not return to the office, an employer could consider disciplining the individual. However, it should be borne in mind that employees who refuse to attend work due to a reasonable belief in serious and imminent danger are protected under employment law from what is known as a “health and safety” detriment or dismissal (regardless of length of service).    

An employee may want to continue staying at home because of pre-existing health conditions or may be reluctant to return to the office because they live with a vulnerable person or have other caring responsibilities.  Requiring them to return to work, or disciplining them for not doing so, may further expose an employer to claims under health and safety and discrimination legislation. 

In all circumstances concerns raised by employees about health and safety at work should be taken seriously and carefully considered. Employers should seek legal advice before proceeding down any disciplinary or dismissal route.

What should employers be considering in the long term?

Many employers whose employees can work from home will be taking this opportunity to reconsider their ways of working, the use of their office space and their organisational structures more generally.  Employers should reflect carefully on the implications of more permanent changes that they (or their staff) will want to introduce, including:

• Are employment contracts and policies still fit for purpose or do they need to be amended? 
• What are the data protection and health and safety implications of the changes proposed?
• What are the tax implications of more permanent homeworking arrangements?
• What consultation will be required with staff in respect of any proposed changes, and what are the consequences of employees not agreeing with some of the changes? 
• How will performance reviews, supervision, staff motivation and team building be carried out under a more permanent socially distanced work structure?

Bates Wells will be organising a series of webinars focusing on managing work place returns, dealing with cash flow and financial concerns and longer term restructures around office space and new ways of working.

On 14 May at 10am, we are hosting the first in this series, COVID-19 – Planning for an uncertain future: An essential guide for HR professionals and senior managers. Click here to book.