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Amanda Lathia examines the legal challenges of returning to work during the post-COVID-19 lockdown in WealthBriefing

  • June 01, 2020
  • By Amanda Lathia, Associate

This article was originally published in WealthBriefing and can be accessed here

Returning To Work: Post-COVID-19 lockdown

The legal challenges of returning to work during the COVID-19 pandemic cannot be underestimated. There is likely to be anxiety amongst employers, as well as employees regarding the legal boundaries for those returning to the office or indeed continuing to work from home. For example, can employees refuse to return to work because they think it is unsafe to do so? What type of disputes can arise following the easing of lockdown restrictions?

Health & Safety

The legislation is clear and unchanged with regards to health and safety at work. Employers must continue to fulfil their duties under the Health and Safety legislation. Conversely, no employee is obliged to work in an unsafe environment. The government has issued useful guidance on working safely during COVID-19: https://www.gov.uk/guidance/working-safely-during-coronavirus-covid-19/offices-and-contact-centres.

Under the government’s guidance, the first step all employers should take is to carry out a risk assessment of their workplace and ensure it fully addresses the risks of COVID-19. It is recognised that the risk cannot be eliminated, however employers must do everything reasonably practicable to minimise the risk of COVID-19. Collaboration with employees is the recommended approach to getting the risk assessment right. Employees should be involved in assessing the risks at work, both from a collaborative and holistic point of view. For businesses that employ 50 or more employees, the risk assessment results must be shared with employees. However, it is recommended that smaller employers share their risk assessment results with their employees.

The Health and Safety Executive (HSE) is now self-funded and will be doing spot checks. If HSE decides that a business has fallen below its standards, it could issue advice or even enforcement notices and if so, will charge the business for the spot check. If, for example, employees are obliged to work in conditions where social distancing is impossible, the employer would be potentially exposed to enforcement action by the HSE and personal injury claims by employees.

The next step is for employers to draft a COVID-19 return to work policy that sets out the responsibilities of the employer and employees. Employees and workers will need training to ensure they correctly carry out their responsibilities under the new policy. Employers would need to ensure that the policy is updated as circumstances change.

Practicalities and challenges of minimising risk in the workplace

In terms of the practicalities of minimising the risk of COVID-19, government guidance includes: introducing cleaning and hand-washing facilities; allowing employees extra time to wash hands more frequently; allowing employees to continue to work from home but come into the office on a rotational basis. The latter will also help ease congestion on public transport.

One of the biggest challenges will be maintaining social distancing at the workplace. Businesses that are cash-strapped may be considering or have already given notice on rented premises to save money. However, it is worth bearing in mind that extra office space would be useful during the transition period as this would help ensure that social distancing can be adhered to. Businesses will therefore need to weigh up the need for employees to be in the office and the cost-saving of no longer having to pay high rent for premises. This requires careful consideration. There is no one size that fits all.

Higher risk individuals

There is a distinction between individuals who are ‘clinically vulnerable’ and ‘extremely clinically vulnerable’. ‘Extremely clinically vulnerable’ individuals include certain cancer patients, organ transplant recipients, people with severe respiratory conditions such as COPD and those with conditions that significantly increase their risk of infection. ‘Clinically vulnerable’ individuals are those with chronic illnesses, people over 70, pregnant women, individuals with weakened immune systems due to certain treatments such as chemotherapy and those who live with extremely clinically vulnerable people. Clinically vulnerable employees should, if unable to work from home, be offered the safest available place to work on site so that they can remain 2m apart from others. If this is not possible and they cannot work remotely, they will not be entitled to statutory sick pay. The alternative for employers is to continue to pay the employees full pay or to place the employee on furlough in appropriate circumstances. Special considerations apply to pregnant employees who must be suspended on full pay if a suitable role cannot be found, in accordance with the Health and Safety at Work Regulations 1999 (SI 1999/3242).

Travel

If workers need to travel in relation to work, the employer should consider remote options first. Otherwise, they should minimise the number of individuals travelling together, encourage travel outside the rush hour, and ensure that any overnight accommodation meets social distancing guidelines.

Equality

Employers must not discriminate directly or indirectly against employees with a protected characteristic such as age, sex or disability. Employers need to consider whether any of the measures they are proposing to introduce following the easing of lockdown restrictions would be inappropriate or challenging for those with such protected characteristics who are exposed to a different degree of risk. Reasonable adjustments must be made for disabled employees and employers must ensure that new measures do not have a negative impact on those with caring responsibilities such as parents or those with religious commitments, unless they can be justified.

Employers may consider using the furlough scheme for parents until schools and childcare facilities are fully reopened. It has been reported in the press that working mothers are much more likely than working fathers to be carrying out childcare responsibilities while working from home. Therefore, if employers do introduce measures to help working parents they need to ensure that such measures do not result in less favourable treatment of working mothers, such as lower pay compared to other workers, as this could be deemed to be indirect sex discrimination. Similarly, if a working mother requests flexible hours and the employer insists that she continue to work full hours, this could also be deemed discriminatory.

Addressing employees’ concerns

Employers should consider appointing a Covid-19 officer who would be available to talk through different options with vulnerable employees or workers. Employers should also offer advice, telephone support, 1-2-1 virtual meetings and/or professional health support to those who are working from home and who may feel isolated (e.g. if most of their co-workers have returned to the office) or anxious or fearful of the transition of returning to work – perhaps because they have tragically lost a relative or colleague to the virus – or are feeling symptoms of burnout. With regards to the latter, employers could consider a ban on out-of-hours emails.

Other potential disputes

Reducing pay or placing employees on furlough could be a breach of contract if agreement is not obtained by the employee.

Decisions about who to furlough, lay off or place on short-time working must not be discriminatory.

Where an employer decides to make staff redundant, they must follow a fair and consultative redundancy procedure.

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