Unlocking Lockdown: 10 issues employers should be thinking about now

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.

1. Ending Furlough

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:

whether plans to end furlough are consistent with what has previously been agreed with the employee. If not, employers will need to seek further agreement from the employee and this may need to be handled sensitively;
how long the employee has been furloughed, and whether returning them to work will affect the employers ability to claim under the CJRS;
whether all employees on furlough need to be return to work at the same time, with consideration given to work levels, a safe working environment and the employee’s individual circumstances. Deciding who to return and when could impact on employee relations so will need to be carefully considered. This is explored further in point 5.

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.

2. Redundancies

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.

3. The Covid-19 Risk Assessment

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.

4. Are existing contractual terms, policies and procedures fit for the current purpose

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:

a Coronavirus-related Health and Safety Policy setting out all the steps which the employer intends to take to mitigate the potential harm to employees on their return to the workplace (as well as other visitors to the workplace);
a new or enhanced home-working policy;
a general policy and procedure for dealing with:
- people who refuse to return to the workplace, or withdraw because they do not consider it to be safe;
- people who flout or ignore health and safety and social distances policies; and
- a policy for dealing with newly identified cases of Covid-19 where that employee has been in the workplace.

5. Planning for who should return to work, and when

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:

the business’s needs, both in general and in relation to each employee’s specific role;
the specific risk assessments required for certain categories of the workforce, such as young persons and pregnant mothers;
the operation of existing (non-Covid-19) risk-assessments (where certain employees have safety-related duties);
the specific needs of anyone with primary childcare responsibilities;
anyone who is shielding, or is otherwise in, living with, or caring for, a group of people identified by the Government as being of particularly high risk from Covid-19;
travel arrangements to and from the workplace, and the additional difficulties likely to be caused by public transport restrictions and reduced services; and
any other reasons which people give for not being able to return to the workplace, which are likely to be varied.

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.

6. Maintaining social distancing

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:

limiting the number of staff in the workplace at any one time;
rearranging workstations to make sure that they are at least 2 metres apart;
using back-to-back or side-to-side (rather than face-to-face) working whenever possible;
installing barriers, screens or dividers to separate people;
staggering employee start and end times so as to avoid congestion on exit and entrance points;
introducing one-way walk through systems; and
splitting the workforce into teams who alternate attendance in the workplace.

Employers will also need to discuss issues relating to shared areas of their workplaces with their landlords.

7. Managing transmission risk

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:

ending hot desk arrangements and other equipment-sharing practices;
ceasing activities which breach social distancing, or where that is not feasible, limiting the duration of those activities to short time periods (such as internal meetings, social get-togethers, making drinks and so on);
installing additional handwashing and sanitiser facilities throughout the workplace including at entry and exit points;
permitting and encouraging the use of face coverings or other PPE in line with Government guidance at the relevant time;
increased cleaning processes with a focus on hot contact areas such as door handles, lights switches and taps.

8. Monitoring the mental health and wellbeing of the workforce

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:

some staff may have suffered the illness themselves, known someone who has survived the illness, or they may have even lost a loved one;
others may have had to continue working whilst balancing child-care and home-schooling responsibilities alongside their day-to-day work activities;
others may feel divided from their colleagues, creating low morale due to the continued need to work from home, or due to the need to split the wider workforce into rotating workplace teams.

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.

9. Data Protection

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.

10. Future flexibility

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: