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Get a Head Start with Return to Work Procedures

COVID-19 and the return to work: Health, Safety and Employees.

As the government’s Coronavirus Job Retention Scheme (CJRS) and other business support schemes reduce and cease over coming weeks and months, employers and senior management will be faced with a serious and significant task. How do you ensure a safe return to work for your employees, and how do you engage with employees that have questions or concerns about your approach? This article sets out the two key documents you should prepare, and discusses some of the more common sticking points raised by employees. Both documents are available from Ashfords in template form, with guidance on how to complete them.

What Framework do I need?

Fundamentally, the framework for dealing with COVID-19 and the return to work comes from health and safety law. It is the duty of all employers to protect the health and safety of their employees, so far as is reasonable practicable, and failing to do so is a criminal offence. The HSE has made it clear it expects businesses to fulfil that duty for COVID-19, and will take enforcement action where necessary.

The challenge facing businesses is to adapt and extend their existing health and safety approach to deal with the novel coronavirus situation. Undertaking that review and change process is the best way to ensure that your employees are protected, your business can return to work efficiently, and that you can justify the actions you have taken in the event of a future query or investigation from a regulator.

Each business is different, but every business must produce two key documents when considering how the return to work will be put into action:

  • A COVID-19 policy: this document must set out the overarching approach to be taken to COVID-19 from the leaders of the business. It will not deal with the specific steps to be taken, but will set out the broad direction of travel and who is responsible for ensuring the proper steps are taken.
  • A COVID-19 risk assessment: this document should identify the risks posed by your business and the appropriate controls. This risk assessment must be business specific – each business (and each location within that business) will have its own unique challenges and ways to overcome them. What may work for one business (or one office) may not work for all.

The importance of these documents cannot be overstated. They will guide the business’ approach to COVID-19, reassure employees and the public that the business is safe to operate and visit, and are the first line of defence against any regulatory investigation. They are also opportunities – a well conducted risk assessment will ensure that the return to work is smooth, efficient and practical; the sudden discovery of a “missed risk” could significantly derail the return to work.

If you have any queries regarding these documents, or would like support in updating your return to work systems, our specialist health and safety lawyers can provide you with a template Covid-19 Policy, a template Risk Assessment (with indicative control measures) and a 10-step guide to implementing your arrangements. We can also review your existing documents and systems, and provide business-specific advice on how best to return to work.

Employees and the return to work.

One particular issue facing businesses is where employees raise queries or concerns regarding “the plan” to return to work. These queries are entirely understandable in the context of COVID-19, but can raise complex issues where employment law and health and safety law overlap. There are two common issues:

  1. Employees may be reluctant or unwilling to return to work until further safety provisions are put in place; and
  2. Employees may be keen to return to work from furlough and to full pay, but your safety analysis may not consider that possible (for example, because the employee is more vulnerable to the effects of COVID-19).

Employee engagement at an early stage is key to resolving these issues efficiently and reducing the need for unnecessary (and potentially expensive) conflict. Clearly explaining the steps you have taken and why will often solve the problem at an early stage, and a robust policy and risk assessment process can help you in that regard. Many employees will have individual circumstances which shape their views on returning to work; in most cases listening to their concerns and suggestions will enable an approach to be taken that all parties can accept.

It is crucial however to ensure that the approach you take is consistent with both employment and health and safety law. For example, allowing an early return to work at the employee’s request may result in you contravening your risk assessment. This is a common cause for HSE investigation, and could place you at risk of criminal liability. Conversely, sticking too rigidly to an existing risk assessment where employees raise valid concerns or improvements could result in employees raising grievances and even claims such as constructive dismissal or disability discrimination.

These are new and complex waters to navigate, and will often require a case by case approach. If you identify these issues within your business our team of employment and health and safety lawyers can engage with your employees and provide you with the support you need to engage with your employees and develop a justifiable, lawful, and practical solution.

If you have any questions regarding the above please contact Jack Baumgardt or Ben Derrington.

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