On 10 May 2020, the Prime Minister announced the first steps the country will be taking to unlock lockdown, in the road to a “new normal”. The Prime Minister’s announcement included encouraging those who cannot work from home to return to the workplace, provided social distancing measures could be maintained.
Following that announcement, the Government issued eight sector-specific guidance manuals designed to make workplaces as safe as possible when they re-open following the Covid-19 pandemic.
Whilst reopening the workplace may be some way off for many employers at the moment, given the message remains to work from home where possible, this time can be put to good use in preparing their business for life after lockdown.
We recognise that every business is different and therefore returning the workforce to the workplace safely will mean different things to each employer. Here at Ashfords, we are well placed to give this advice on consideration of each business’s individual needs. However, as a starting point, we have set out 10 general steps which employers should be thinking about now in anticipation of returning employees to the workplace.
Since the introduction of the Covid-19 Job Retention Scheme (CJRS), it is estimated that 7.5 million employees have been furloughed. For some employers, the entirety of their workforce will have been furloughed, and for others only some. Regardless, it will be important to consider how businesses move towards returning furloughed employees to the workforce.
Employers will need to carefully consider:
Due to the ongoing effects of Covid-19, employers will also need to consider whether employees going to be able to return on the same terms and conditions, or whether amended terms and conditions will need to be entered into. This is explored further in point 4.
Sadly, the effect of lockdown on the functioning of many businesses, including during the economic aftermath, will likely mean that redundancies will be unavoidable in order for some businesses to survive.
Any redundancy process will need to be approached carefully and in accordance with the law, not only to reduce the risk of legal claims but also in terms of morale for the remaining workforce and the reputation of the business moving forward.
A key consideration for employers will be when to start consultation if redundancies are proposed. If employers already know that there will be a need to reduce their workforce prior to the expiry of the CJRS as we know it now, or in its amended form from 1 August 2020, then it would be in the employer’s interest to take steps in the redundancy process sooner rather than later.
Early action will be particularly important for employers who are proposing to make 20 or more employees redundant from one establishment, in a rolling 90-day period, as collective consultation obligations will be triggered, which will dictate a required minimum consultation period.
In light of the financial support currently provided by the CJRS, and the Government’s current guidance on use of the scheme in redundancy situations, employers may want to consider any assistance the scheme could provide in alleviating the financial strain that comes with completing the consultation period and any subsequent notice period.
On top of an employer’s normal duties to protect the health, safety and wellbeing of their employees, employers will need to carry out and write up a specific Covid-19 Health and Safety Risk Assessment before allowing employees to return to the workplace.
This Assessment should be carried out in consultation with trade unions, or, if the workplace is not unionised, with employee representatives, so that guidelines can collectively be established and put in place. The results of the Assessment should also be shared with the wider workforce prior to their return to the workplace.
An employer’s obligations will not stop there: they will need keep up to date with the Public Health England guidelines on safety and follow all government guidance as it is issued in relation to Covid-19.
The types of measures which may be identified in such an assessment, or recommended in guidance, are touched upon in points 6 to 8 of this Article.
As a result of the impact Covid-19 has had on the business, it may be that employees’ contractual terms no longer reflect the realities of the work landscape and need to be adapted.
Alternatively, it may be that, in an attempt to avoid redundancies, employers will need to implement contractual changes for the survival of the business, such as short-time working and/or pay cuts.
When looking to introduce any type of contractual change, employers will need to carefully review each employee’s contract to establish whether the existing contractual terms are sufficient. If not, the employer will need to carefully consider how to introduce these changes in order to obtain the necessary consent from the employee.
In addition, it is likely that employers will need to introduce new policies and procedures to reflect the change in work practices forced upon them by Covid-19. These may include:
Once employers are satisfied that they can move through these steps, they will need to consider who should return to work and when.
As the country moves out of lockdown, and adjusts to a new normal, it may be that not all of the workforce will be required back in the workplace straight away. This will likely be for a variety of reasons, such as the safety of the workplace or a decline in work. Regardless of the reason, employers will need to make sure they use fair and objective criteria when selecting who to return to work, and when.
Employers will need to consider:
This process will be difficult for many employers, as every employee and their personal situation will be unique.
To minimise the risk of unfair dismissal and discrimination claims, it will be important to use a fair and considered approach when making such decisions.
In order to comply with the ongoing need to maintain 2 metre social distancing, which appears likely to remain for the foreseeable future, employers will need to redesign their workplaces to accommodate this requirement wherever possible.
Practically, this could include:
Employers will also need to discuss issues relating to shared areas of their workplaces with their landlords.
Employers will also need to consider introducing other methods of managing the risk of transmitting Covid-19. This will be especially important in industries where it is not possible to maintain social distancing at all times.
Possible further steps that could be implemented include:
It is not only the physical wellbeing of employees which employers will need to consider when returning the workforce to the workplace. The mental health and wellbeing of many employees will have been affected by the pandemic, with many feeling lonely, anxious or depressed as a result of lockdown. It will be important for employers to appreciate that each member of staff’s experience of Covid-19 will be different. For example:
Employers should consider whether they have sufficient support mechanisms in place to deal with the impact that these situations could have on the workforce, and to try to improve them where possible.
It would be a good idea to introduce support mechanisms such as mental health first-aiders or a confidential counselling support helpline during the transition period.
If an employer is considering collecting additional personal data to assist with fulfilling its duty of personal care, or to assist with plans on returning the workforce to their normal setting, such as taking employees’ temperatures, the employer will need to be sure that this data is collected and processed within the parameters of data protection law.
The processing of sensitive personal data, which includes information relating to an employee’s health, is subject to stringent protections and employers will need to tread carefully when implementing any initiatives to collect and process such data.
Employers will need to document the decisions they take from a data protection perspective in relation to the collection and retention of data, including the legal grounds for doing so. In practice, employers are likely to rely on “legitimate interest”, but must ensure that internal records and policies demonstrate that all appropriate steps are being taken to ensure compliance with data protection requirements.
After months of agile and flexible working, employees may be reluctant to give up their new-found freedoms or the hours they have recouped by not having to commute to the workplace, which may lead to increased requests for employers to adopt and maintain the more flexible working practices that lockdown has forced upon them.
It will be important for employers to review their agile and flexible working policies and procedures, to make sure that they are up to date, and are understood by those making flexible working request decisions.
These steps are only a few examples of what employers will need to consider when looking to return workers to the workplace. It will be important for employers to be conscious of the impact Covid-19 will have had, and may still be having, on those employees it is looking to allow back in the workplace, so managing this transition against employees’ expectations, whilst also protecting the reputation of the business and minimising the risk of legal proceedings, will be key.
In light of the significant impact Covid-19 has had on how businesses operate on a day to day basis, and the anticipated post-lockdown economic impact, it is vital to move swiftly to take advantage of the time available to prepare for returning the workforce to a more “normal” setting. Preparation will be key to a smooth transition back to normality, and to help minimise the risk of claims in the Employment Tribunal as well as in the Civil and Criminal Courts.
We are well placed at Ashfords to assist businesses with the complex issues they are likely to face as the Government continues to unlock lockdown, and the country moves towards a new normal. If you require any advice on the topics touched upon in this article then please contact:
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