United Kingdom

15 Jul 2020
What risk mitigation efforts should the prudent employer take before employees return to the workplace?

Employers have both common law and statutory duties relating to the health and safety of their employees.  At common law employers have a duty to take reasonable care for the health and safety of their employees and must provide a safe system and place of work. The Health and Safety at Work Act etc 1974 stipulates that it is the duty of every employer to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all its employees. Under the Health and Safety at Work Act etc 1974, associated regulations and codes of practice, an employer must ensure:

  • Provision and maintenance of plant and systems of work that are so far as reasonably practicable, safe and without risks to health.
  • Information, training and supervision to ensure the health and safety of employees at work;
  • Carry out a risk assessment which identifies the risks and decide how likely it is that someone will be harmed

The UK Government has published guidance on Working safely during coronavirus (COVID-19) to assist businesses in England in making their workplace COVID-secure. Separate guidance is provided for Wales, Scotland, and Northern Ireland. The UK Government website also provides guidance to employees in different sectors and different sectors are added as the business opens up.

The advice in the guidance is that all reasonable steps should be taken by employers to help people to work from home. However, if the employee cannot work from home and the workplace has been permitted to reopen then the employee should go to work.

Where employees can attend the workplace, the employer must carry out a COVID-19 risk assessment. As mentioned above current health and safety legislation and equality legislation requires employers to carry out risk assessments. Employers should therefore carry out a risk assessment in consultation with workers or trade unions. Simply complying with measures suggested in the Government guidance may not be sufficient for employers to meet their obligations under health and safety legislation if they have not assessed the risks in their own workplaces and put appropriate control measures in place. Once a risk assessment has been carried out employers should put in place protections to minimise any risks, put reporting mechanisms in place and monitor the situation. The Government expects that all businesses with over 50 employees should publish the results of the risk assessments on their website.

 
Who should be involved in the decisions to return to the workplace?

One of the key aspects in determining the risks is to ensure that the correct team is in place to review the proposals for implementing the return to the workplace. HR, Legal, IT and business leaders should all be involved. The number of steps required will depend on the nature of the business. 

There is an express duty under UK health and safety legislation for employers to consult with employees on measures which affect their health and safety. Employers therefore need to consult with any existing trade union health and safety representatives or elected employee representatives where there is no trade union. If there are no elected representatives then the employer can consult directly with employees. Consulting with employees will be key to ensure that the employer understands the employees’ concerns and can inform the employees of changes made to the workplace to give them confidence to return. 

Practical tips:

  • Consult with employees and representative bodies
  • Consider whether public relations should be involved
 
What can the prudent employer do to ensure physical distancing in terms of the work space?

The UK Government guidance is that employers should maintain, social distancing guidelines (two metres, or one metre with risk mitigation where two metres is not viable) between workers, customers and visitors. The steps that will be required will depend on the nature of the workplace and will be a part of the risk assessment carried out. The Working safely during coronavirus (COVID-19) guides make the following suggestions:

  • Review layouts and processes and use floor tape or marks to help workers maintain the distance. 
  • If it is not possible to move workstations then people should work side by side or face away from each other rather than face to face. 
  • If it is not possible to move workstations further apart, screens should be used to separate people from each other.
  • Hot desking should not be used. 
  • Employers should also consider the occupancy for lifts and stairs.
  • Only holding meetings where absolutely necessary and if so attendees should maintain social distancing throughout and be in well-ventilated rooms.
  • The use of other facilities, such as canteens should be regulated, for example by providing packaged food. 

It will also be important to check what sub tenants/contractors/outsourced services are doing and make sure that employees are protected.

Practical tips:

  • Consider industry specific guidance on modifications to the workplace
  • Encourage virtual meetings
  • Use signage to develop flow of travel through the office
  • Consider ventilation in the offices
  • Inform and train employees in the use of the workplace
 
What can the prudent employer do to ensure physical distancing in temporal terms?

Maintaining physical distancing may also require other changes:

  • Staggering arrival and departure times at work to reduce crowding
  • Changing shift requirements
  • Dividing the workforce into teams
  • Using fixed teams or partnering to limit the number of people each employee has contact with
  • Ensuring all senior leaders don’t return to the workplace at the same time.

Changing hours of work to stagger arrival at the workplace or creating new teams or different shift patters may require changes to the employees’ terms and conditions. The best way to proceed with this is to obtain each employee’s express consent to the change. For those employees currently on furlough, employers need to factor in obtaining their consent remotely. If it does not obtain express agreement then the employer can terminate the contract and rehire the employee on new terms. This process may require collective consultation under s 188 Trade Union and Labour Relation Consolidation Act 1992. The legislation applies where an employer is proposing to dismiss as redundant 20 or more employees at one establishment in 90 days or less. The definition of “redundancy” for these purposes is wider than the meaning in the Employment Rights Act 1996 (ERA 1996) and includes situations in which the employer intends to dismiss and re-engage employees on new terms and conditions.

If an employee fails to obtain consent for changes to working time and pay then this is likely to amount to a repudiatory breach of contract. The employee can then resign and claim constructive dismissal. 

In addition to changing terms and conditions employers may need to update policies such as sickness and health and safety policies.

Practical tips:

  • Determine changes to working hours that may be required
  • Determine the groups of staff and schedule groups to work together
 
What protections should the prudent employer consider implementing, in addition to physical distancing?

The UK Government guidance is that where people cannot maintain physical distancing then it is necessary to manage the transmission risk. Again, this will be something that should be discussed as part of the risk assessment. In addition, employers need to review cleaning the workplace and any personal protective equipment (PPE) and face coverings that may need to be provided. The Working safely during coronavirus (COVID-19) guides make the following suggestions:

  • Consider what deep clean needs to be done before re-opening;
  • Does any adjustment need to be done to any air conditioning system;
  • Ensure that there is frequent cleaning of work areas;
  • Reminding employees of increased handwashing frequency and setting clear guidance for any such facilities;
  • Providing hand sanitiser, particularly near exits and entrances.

Whether employees should be provided with PPE will depend on the nature of the workplace and will be recommended as part of the risk assessment. For most workplaces PPE will not be required, unless its use has been recommended by Public Health England. 

The guidance advises the use of face coverings in enclosed public spaces such as on public transport. The guidance highlights that the use of face coverings is not a replacement for other ways to manage the risk, such as maintaining social distancing and increased hygiene. Employers should therefore not rely on face coverings as risk management. In the UK wearing a face covering is optional and although it is required in certain public spaces, it is not required in the workplace. However, employers should support their workers in using face coverings safely if they choose to wear one.

 
How can an employer screen its employees, including temperature testing, COVID-19 testing and questioning? 

If considering carrying out any health screening on employees there are various issues that need to be considered:

  • Employee’s medical information is a special category of data under the GDPR and there are therefore strict conditions that apply as to when the data can be collected and processed. Some guidance has been provided by the Information Commissioners Office (ICO) on balancing the processing of such data and the public interest in safety.
  • Before implementing any testing it is useful to consult with employees and employee representatives. Any such testing must be carried out sensitively and proportionately, and the employer should ensure that they update or publish a new privacy notice.
  • Also consider whether the employer can require the employee to disclose whether they or someone in their household has symptoms. Again, if that is required, the data protection implications of this need to be considered.
 
What are the requirements regarding travel – either to or from the office or business travel?

Employers will need to consider how employees will travel to and from work. The Government guidance suggests that employees returning to work should avoid the use of public transport wherever possible. If an employee has no alternative but to use public transport then the employer should consider staggering office hours so that the employee can avoid the busiest times. In addition, the Government has suggested that employers should expand bicycle storage facilities, changing facilities and car parking so that the employees have different ways to travel to work.

The Government has published guidance for passengers which includes guidance on the use of public transport.

Practical tips:

  • Consider methods of travel to the office
  • Encourage use of virtual meetings to limit business travel
  • Establish protocol for determining business travel
 
How does the prudent employer decide which employees should return to the workplace?

Most workplaces will only need a limited number of staff to return to the workplace. Employers will need to ensure that they do not adopt discriminatory selection criteria in determining who should return to work. The guidance is clear that employers should not discriminate and should take into account the obligations under the Equality Act 2010 (EA 2010) and so need to understand and take into account the particular circumstances of those with protected characteristics; communicate with workers whose protected characteristics might either expose them to a different degree of risk; and consider any particular measures or adjustments. However all these steps do have to be balanced against any unjustifiable negative impact that the steps will have on some groups compared to others. 

An employer will need to be aware of different protected characteristics of employees and individuals within an employee’s household. In particular, employers should consider the following:

  • Those who are clinically extremely vulnerable (those who have specific underlying health conditions that make them extremely vulnerable to severe illness if they contract COVID-19) are strongly advised not to work outside the home during the pandemic peak and only return to work when community infection rates are low. The employer should therefore consider if they can work from home. These employees are likely to be disabled under the Equality Act 2010
  • Those who are clinically vulnerable (those who may be at increased risk from COVID-19, including those aged 70 or over and those with some underlying health conditions) have been asked to take extra care in observing social distancing and should be helped to work from home, either in their current role or in an alternative role. If this is not possible they should be offered the option of the safest available on site roles, enabling them to stay 2m (or 1m with risk mitigation where 2m is not viable) away from others. If social distancing cannot be maintained, an employer should carefully assess whether this involves an acceptable level of risk. Failing to do so could lead to disability or age discrimination claims.
  • Employers have additional protection requirements with regard to pregnant women.
  • Reports have suggested that older employees and black and ethnic minority workers have suffered disproportionate harm from the impact of the virus. Employers should balance trying to protect those workers against the risk of age or race discrimination claims if they furlough these workers on reduced pay or change their duties.
  • Those who have caring commitments due to childcare responsibilities. These employees may be willing to return to work but practically cannot do so without childcare.

Where employees are disabled, employers have a duty under the EA 2010 to consider what reasonable adjustments should be put in place for them. As well as claims for direct or indirect discrimination, an employer must be careful to avoid any claims for associative discrimination which could be relevant where a member of an employee’s household is disabled.

Practical tips:

  • Employers must therefore ensure that they are clear on the medical evidence and Government guidance to support any decisions they make on who should return to work
  • Consult with employees regarding the return to the workplace to understand any issues they may have
  • Consider allowing for volunteers to return to work
 
What if an employee refuses to return to the workplace?

An employer must be mindful of employee’s concerns regarding returning to work. It must also consider the reasons why the employee does not want to return. If the employee does not fall within one of the vulnerable groups referred to above, is not specifically at risk or shielding someone at risk, employers need to consider how they will respond to such a refusal. 

Consultation with the employee would be the best approach to explain the steps which the employer has taken.  Dismissal should be a last resort on the basis that the employee refused to comply with a lawful instruction. If the employee reasonably believes that their workplace poses a serious and imminent threat to their health under s44 (1) (d) and s100 (1) (d) ERA 1996 they are protected from being subjected to any detriment or being dismissed for exercising their right not to return to the workplace. It is the employee’s reasonable belief that is important, so the more that an employer can do to show that they complied with the Government guidance and consulted and responded to employees’ concerns the less likely it is that a tribunal will deem the belief reasonable. The serious and imminent threat is in relation to the workplace and it is therefore unclear whether an employee’s concern regarding public transport to get to the workplace would give them the protection under the ERA 1996.  

A claim under s100 ERA 1996 is for automatic unfair dismissal. Even if the employee cannot prove that there was a serious and imminent danger they could still argue that there is a breach of the implied term of trust and confidence and resign, claiming constructive dismissal. Whether any dismissal is fair would be judged on ordinary principles and would require consideration of alternative measures. 

Refusal by some employees to return, may mean that those who do return to work are required to carry out additional work and employers will need to be careful that any additional work does not breach working time under the Working Time Regulations 1998. 

Employers should also bear in mind the effect of the lockdown on employee’s mental health. If there are employee assistance programmes available these should again be drawn to the employee’s attention.

Practical tips:

  • Ensure consistent and transparent approach to any refusal to return
  • Consider claims that might arise if the employee is dismissed or is treated to a detriment
  • Make it clear to the employee that unreasonable refusal to return could be treated as a disciplinary matter
 
What other considerations should the prudent employer is thinking about at this time?

Employers may find themselves with many more requests for flexible working both to change hours of work and to work from home. In the UK employees with at least 26 weeks’ continuous service with the employer has a statutory right to make a request under the ERA 1996 and the Flexible Working Regulations 2014. The employer must deal with such requests in a “reasonable manner”. The employer can only refuse a request on one or more specific grounds set out in the regulations. If the employer fails to comply with its duties under the ERA 1996 then the employee may complain to an employment tribunal. The employee may also be able to bring a claim for discrimination. Employers may find it more difficult to refuse an application if operations have run smoothly during lockdown. In addition, employers should ensure that they have a flexible working policy which provides them with guidance on how to deal with claims, particularly how to deal with multiple requests.

Employers may also find that they are facing more grievances from employees, for example regarding furloughing arrangements under the Job Retention Scheme or selection for returning to work. Employers need to ensure that they have a consistent approach to handling the grievances and a good paper trail with clearly documented decisions will help in ensuring the reasons for differential treatment and so address the grievances. Employers will also need to comply with the organisations disciplinary and grievance policy and also with the Acas Code of Practice on disciplinary and grievance procedures.

 
Contact

Paul Griffin
Head of Employment, London
paul.griffin@nortonrosefulbright.com
+44 20 7444 2169

Amanda Sanders
Knowledge Of Counsel
amanda.sanders@nortonrosefulbright.com
+44 20 7444 2518