The UK government has released its roadmap, “Our plan to rebuild: The UK Government’s COVID-19 recovery strategy”, as it looks to ease the lockdown over the coming months. Here are 10 practical issues employers need to consider as they move forward.
1. Returning to the workplace
The guidance, published on 11 May 2020, states that workers should continue to work from home wherever possible, rather than returning to the workplace. This is to help minimise the amount of social contact across the country, allowing people who are required to attend the workplace to do so, while keeping the risk of overcrowding as low as possible on public transport and in public places.
According to the guidance, from 13 May 2020, all workers who cannot work from home should travel to work if their workplaces are open. The sectors that should be open for business include:
- food production,
- logistics, and
- distribution and scientific research in laboratories.
Non-essential retail and hospitality may be allowed to open from 1 June 2020, and 4 July 2020, respectively. The government recommends that all workplaces follow the new guidance, Working safely during coronavirus (COVID-19), “to help employers, employees and the self-employed understand how to work safely during the coronavirus pandemic”. The guidance includes eight guides to cover a range of different types of work environments to help ensure workplaces are as safe as possible.
As employers approach a return to the workplace, it is important to consider how many employees are realistically needed in the workplace and to explore who would be willing to come back to work in the initial stages. In this regard, employers may want to request volunteers at the outset of the process. Employers should be prepared for some employees being very keen to return to work due to their own personal health and financial situations, whilst others are likely to not be so keen, due to the challenges of childcare and travel arrangements.
It is clear from the guidance that workforces are unable to return to the workplace in their entirety, at the same time. Employers are expected to consider who is needed to be on-site and plan for the minimum number of people to operate safely and effectively. Employers may need to think about a potential phased return to work on a gradual or rotational basis, for example, splitting staff into teams with alternate days and times for attending the workplace. Consideration will need to be given to the practicality of these changes and how they can be managed. Staggering on-premises hours could be beneficial and will also reduce public transport use during peak hours.
Another important issue for employers to consider is furloughed staff. The current Coronavirus Job Retention Scheme (CJRS) is in place until 30 June 2020, however on 12 May 2020, it was announced that the scheme will be extended on its current terms until 31 July 2020. Under the scheme, employees cannot undertake any work for their employers, and the government will continue to pay 80 percent of an employee’s monthly salary, up to a cap of £2,500 per month. From 1 August 2020, to 31 October 2020, however, the CJRS will continue for all sectors, but with greater flexibility in bringing staff back to work part time. The UK Chancellor of the Exchequer, Rishi Sunak, has said that starting in August 2020, employers will need to “share with the government the cost of paying salaries” indicating that the level of support from the government will begin to decrease, however furloughed workers will continue to receive 80 percent of their wages. Full details of the updates to the CJRS are expected to be published at the end of May 2020, therefore employers may want to keep up to date with government announcements in relation to the scheme.
2. Travel to work and business travel
All employees that usually work from an employer’s business premises will need to travel to work; this obviously poses potential risks of infection, particularly where public transport is an employee’s main or sole form of travel. Employers will need to consider how to address the risks and how to offer support to employees. Employers can assess whether it is reasonable to ask employees to avoid public transport and how they might support employees in terms of alternatives and the covering of costs that may be involved.
For businesses that have highly mobile employees who often travel extensively within the United Kingdom or internationally, thought will need to be given to how alternatives to travel can be explored. The government intends to introduce a series of measures and restrictions at the UK border in order to keep the overall number of transmissions in the United Kingdom as low as possible. Along with increased information about social distancing measures at the border, the UK government will require all international arrivals to:
- supply contact and accommodation information, , and
- self-isolate in their accommodations for 14 days on arrival to the United Kingdom.
If international arrivals are unable to demonstrate where they will self-isolate, the UK government will provide them with accommodation in which to do so. Travelers will also be strongly advised to download the National Health Service’s (NHS) contact tracing app.
According to the government’s recovery strategy roadmap, “[s]mall exemptions to these measures will be in place to provide for continued security of supply into the UK and so as not to impede work supporting national security or critical infrastructure and to meet the UK’s international obligations.” The international travel measures are intended to be introduced as soon as possible.
Employers may also want to be aware of the restrictions and guidance of the different countries in which they operate and adopt a consistent approach to ensure they are aware of local circumstances. Employers may also want to take this opportunity to review the terms of their business travel insurance policies. Coverage areas to consider include the possibilities that employees could potentially be stranded abroad due to future travel restrictions or become ill whilst outside the United Kingdom.
3. Social distancing
The two-metre social distancing guidelines are likely to continue for several months; therefore when planning a return to the workplace, businesses need to plan on that basis. It is essential that employers heed to the social distancing guidance issued by the government as well as section 3 (“social distancing at work”) of the relevant guide in the Working safely during coronavirus COVID-19 guidance, in order to assist in relation to their social distancing obligations. There are significant practical issues around social distancing in the workplace and the guidance provides tailored advice for different scenarios that may arise in different types of workplace environments. The guidance highlights measures such as:
- Using floor markings to designate the two-metre distance in crowded areas, for example work entry points, bathrooms, and communal break areas. The guidance also advises employers to move workstations where possible to comply with the two-metre distancing rules.
- Requiring employees to work side-by-side or facing away from each other rather than face-to-face if possible where it is not possible to remain two-metres apart. If face-to-face contact is unavoidable, it should be kept to 15 minutes or less.
- Making regular announcements to remind staff to follow social-distancing advice and wash their hands regularly.
- Providing extra pop-up handwashing stations if possible, providing soap, water, hand sanitiser, and tissues.
- Encouraging, where possible, the use of digital remote transfers of material rather than paper, such as using emails, e-forms, and e-banking.
4. Health and safety and risk assessments
The first section of each of the eight guides from the new government guidance, Working safely during coronavirus (COVID-19), focuses on the objective that all employers must carry out a COVID-19 risk assessment. All employers “have a legal responsibility to protect workers and others from risk to their health and safety” and must take adequate steps to protect their employees when returning to work. The risk of a claim with uncapped compensation is a possibility if employers take any action that could be considered as detrimental treatment during this time, therefore before inviting any employees to return to the workplace, employers may want to carry out relevant risk assessments. Such risk assessments would include any risks posed by the business premises, working conditions (for example the proximity of desks) and the composition of the workforce, with a specific emphasis on the risk of contracting COVID-19 in the workplace. Employers can consider what adjustments need to be made to minimise the risk to their employees’ health.
Employers may find it helpful to be able to demonstrate that they have carried out the appropriate risk assessments and how the risks are being managed or reduced. Producing supporting documentation is likely to be beneficial in case of any future challenges or investigation. If possible, the government expects all businesses with over 50 employees to publish results of their risk assessments on their website. The government recommends employers display the Staying COVID-19 Secure in 2020 notice in the workplace to show they have followed the guidance.
Employee communication is incredibly important during this time and as a matter of law, employees should be provided with the specific information that identifies the risk to their health and safety and the measures put in place to protect against those risks. In this regard, employers may find it beneficial to allow employees the opportunity to express their concerns about returning to the workplace in order for employers to address any worries. In addition, employers may find it especially helpful to allow employees the opportunity to notify them of any vulnerabilities they face with regard to COVID-19. Employers may want to be patient with employees that may need time to make arrangements for dependents, if schools and nurseries remain closed. Regular employee communication is very important, and communicating with employees well in advance of any return to work should help to have a positive effect on morale, productivity, and willingness to work.
The Health and Safety Executive has published advice and guidance in relation to COVID-19 on its website, which may be useful for employers when considering health and safety measures. Employees are likely to continue to become ill with COVID-19, at least in the short to medium term, and employers may want to have strong human resources processes in place to monitor the health of staff. Any employee that develops symptoms of COVID-19 should follow the government’s guidance on self-isolating.
5. Mental health
Social distancing and self-isolation has had a huge impact on employee mental health and has also increased the levels of their stress and anxiety. Employers need to acknowledge that the lockdown has affected individuals in different ways, with some employees struggling with the isolation and having to work remotely, whilst others are anxious about returning to work, as they perceive returning to the workplace will be a threat to their health. Employers may want to work closely with their occupational health teams wherever possible and offering support to employees should be a key priority. Employers may find it helpful to be in regular contact with staff in order to communicate the practical measures they are taking and to reassure employees that their health, well-being and safety is their top priority. The government has published guidance on the mental health and wellbeing aspects of coronavirus (COVID-19).
6. Employee absence due to COVID-19
Employee absences in relation to COVID-19 are likely to continue for the foreseeable future. This could include employees that have the virus themselves, those that are vulnerable and shielding, or those that live in a household with a vulnerable person. Employers will need to consider the impact this will have on their businesses and the need to cover certain roles in the absence of some employees. Employers should also be aware of any government guidance and legislative changes in relation to employee absences, which set out pay entitlements under these circumstances.
7. Policies and procedures
Employers may want to review policies and procedures and consider whether amendments will be necessary. In particular, employers may want to consider their health and safety policies and procedures in light of the government guidance and recommendations referred to above.
Flexible working requests may be more frequent from employees with caring responsibilities or from employees that are vulnerable. Flexible working procedures may need adapting, at least in the short-term. Employees with 26 weeks service already have the right to request flexible working within the scope of a statutory regime; however, employers may need to move away from the confinements of this, at least temporarily in order to make flexible working requests open to all.
Employers may want to review telework policies to ensure that they address the issues arising out of the increased need to work from home due to COVID-19. Employers may want to consider provisions relating to health and safety, work equipment, information technology, and data security within those policies.
During the lockdown period, any performance or disciplinary issues may have been placed on hold; employers should look to reimplemeting performance management and assess how they are effectively going to deal with it going forward.
Employers may want to ensure that they have provisions in place in case of a second lockdown; the government could implement this if there is a second spike of COVID-19 in the United Kingdom. Businesses may have to close and employees may have to once again work from home. Employers may want to ensure that they are prepared for this and have all employees’ personal contact details for future communications.
8. Trade union interest
If an employer recognises a trade union, employers will need to anticipate significant interest in the management of employees returning to work. Employers may want to consider early engagement with the health and safety committee members on the proposed return to work plan as trade unions are likely to require significant reassurance on the health and safety of their members.
Trade unions may also need to be consulted with regard to any change to terms and conditions such as a change of working hours. Employers will need to balance the involvement of trade unions for the sake of good ongoing employee relationships against the need to be able to progress to a successful reopening of the workplace.
9. Annual leave
Employees may accrue paid time off while out on furlough leave. They may also take leave paid time off during time spent in lockdown, and employers may want to permit employees to take previously requested and approved paid time off, even if employees are working from home.
Due to the likely event that many employees will return to work with a significant number of accrued holiday days remaining, employers should have a clear policy to allow as many employees as possible to take annual leave during the remaining holiday year whilst maintaining key business services. To accomplish this, employers may need to relax their rules in relation to how many employees are allowed time off simultaneously.
Employers will also need to consider how to accommodate the changes to the Working Time Regulations 1998 (WTR). Under normal principles, annual leave entitlements must be taken in the holiday year to which it relates, with carry-over permitted in only very limited circumstances. However, where it is “not reasonably practicable” for a worker to take some or all of his or her statutory leave entitlement because of the effects of COVID-19, the worker is entitled to carry forward such untaken leave into the next two leave years.
10. Potential redundancies and reductions in force
The UK government introduced the CJRS to help save jobs and to help employers avoid making redundancies. The CJRS (in its current form) is due to end on 31 July 2020, after which the level of support from the government will begin to decrease. From 1 August 2020, employers will need to “share with the government the cost of paying salaries”. Therefore, employers will have to consider the impact of COVID-19 on the future need for employees and whether redundancies are in fact going to have to take place.
Where 20 or more redundancies are potentially proposed in the same establishment, collective consultation provisions are triggered. This means that consultation must begin at least 30 days before the first dismissals take effect. Where 100 or more redundancies are proposed at the same establishment, consultation must start at least 45 days before dismissals take effect. Employee representatives will also need to be elected if the employer is without a trade union.
Ogletree Deakins will continue to monitor and report on developments with respect to the COVID-19 pandemic and will post updates in the firm’s Coronavirus (COVID-19) Resource Center as additional information becomes available. Important information for employers is also available via the firm’s webinar programs.
Carrie-Ann Hopkins is a paralegal in the London office of Ogletree Deakins.
Daniella McGuigan is a partner in the London office of Ogletree Deakins.