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; and
- 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 guidance has a list of priority actions to take to protect the employer, staff and customers: These include completing a COVID-19 risk assessment; clean more often; ask visitors to wear face coverings; make sure everyone is social distancing; increase ventilation; take part in NHS Test and Trace (see below); turn people with coronavirus symptoms away; and consider the mental health and wellbeing aspects of COVID-19.
The advice in the guidance is that employers should ensure workplaces are safe whilst still enabling working from home. Those who can work from home are encouraged to continue to do so. Where it is not possible the risk of transmission can be substantially reduced if COVID-19 secure guidelines are followed. Employers should therefore consult to determine who can come into the workplace safely taking account of a person’s journey, caring responsibilities, protected characteristics and other individual circumstances.
Where employees do 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.
It is mandatory for employers to retain a record of all staff and contractors for 21 days in order to take part in NHS Test and Trace. The test and trace service is to rapidly detect people who have recently come into contact with a new COVID-19 case so that swift action can be taken.
Where the enforcing authority identifies employers who are not taking action to comply with the relevant public health legislation and guidance to control public health risks then they are empowered to take a range of actions to improve control of workplace risks. This includes closure of venues under the Health Protection (Coronavirus, Restrictions) (England) No.3) Regulations 2020. This would cover employers not taking appropriate action to ensure social distancing where possible.
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. The Guidance states that employers are encouraged to have individual discussions with their workers including those who are clinically extremely vulnerable. Consulting with employees will be key to ensure that the employer understands the employees’ concerns and can inform the employees of precautions in place to make the workplace COVID-secure to give them confidence to return.
- 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.
- 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.
- 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. This will include ensuring that both workers and visitors who feel unwell stay home and do not attend the premises. In addition, employers need to review cleaning the workplace and any personal protective equipment (PPE) and face coverings that may need to be provided. Depending on the sector will determine the level of protection that is required. 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; and
- 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.
Face coverings are required in enclosed public spaces where there are people that the person does not normally meet such as on public transport and in shops and in businesses that are customer facing. 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. Employers should support their workers in using face coverings safely if they choose to wear one.
The guidance also suggests that steps are taken to avoid people needing to unduly raise their voices to each other.
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.
The Department for Health and Social Care has published Guidance for employers and third party healthcare providers on testing. This provides guidance for employers wishing to provide a test to staff including issues to consider in setting up a testing programme, communicating the intention to the staff, contact tracing staff and communicating test results. For further information on the guidance see our blog post here. The guidance applies to England only although equivalent guidance is to be published for Scotland, Wales and Northern Ireland.
An employee with coronavirus symptoms can get a free NHS test. An employer can order rapid lateral flow tests to test employees with no coronavirus symptoms if the business is registered in England, the business employs 50 or more people and the employees cannot work from home.
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. Employers should check that the employees can travel to work and employees should only travel to the workplace if it is unreasonable for the employee to work from home or when the Government has indicated that employees can return to the workplace. The Government guidance suggests that employees who are able to return to work should walk or cycle where possible. Where not possible employees can use public transport or drive. If using public transport employees must wear a face covering. 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.
Where employees need to use transport then the employers should use fixed travel partners and increase ventilation when possible and avoid sitting face to face.
If workers are required to stay away from their home then the stay should be centrally logged and any employers should ensure that any overnight accommodation meets social distancing guidelines.
The Government has published guidance for passengers which includes guidance on the use of public transport.
- 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?
Workplaces may 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.
In addition, some employees may be required to self-isolate for example, because they have symptoms of coronavirus; they have tested positive for coronavirus; they live with someone who has tested positive or has symptoms; they have been told to self-isolate by NHS Test and Trace or they have arrived in the UK from a country with a high coronavirus risk. Where an employee has been required to self-isolate, the employer commits an offence if it knowingly permits a worker to attend any place other than where the individual is self-isolating. The employer will face a fine starting at £1,000. There is also an obligation on the worker to tell their employer that they are self-isolating. (The Health Protection (Coronavirus, Restrictions) (Self-Isolation) (England) Regulations 2020).
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) can return to work providing COVID-secure guidelines are in place but should work from home wherever possible. If they cannot work from home they should be offered the option of the safest available on-site role. These employees are likely to be disabled under the Equality Act 2010 and it may be appropriate for these individuals to be offered alternative roles or adjusted working patterns
- 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 advised to take extra care social distancing. 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.
- The guidance also indicates that higher risk groups such as older males, those who have a high body mass index, those who have health conditions such as diabetes and those who are from some Black, Asian or minority ethnic backgrounds should have these matters considered in the risk assessment.
- 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.
- 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.
- 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 be 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.
What are the safety and employment issues for consideration regarding the vaccines?
The Covid-19 vaccination programme in the UK is not mandatory as the UK government does not have legal power to do this. The UK Government has the power to prevent, control or mitigate the spread of an infection or contamination under the Public Health (Control of Disease) Act 1984. However, under this Act, provisions cannot be made to require a person to undertake medical treatment. It is for the individual to decide whether to get vaccinated.
Employers should consider whether the terms of the contract of employment would allow the employer to require the employee to have the vaccine. There may be a clause which covers medical examinations, which, may allow an employer to rely on this. However, this would raise human rights concerns.
Employers could seek to rely on the fact that requiring employees to be vaccinated could be a ‘lawful and reasonable instruction’. Instructing employees to get vaccinated, and taking action such as dismissal if the instruction is refused, would undoubtedly be detrimental to wider employee relations in addition to bringing a high risk of employment tribunal claims (unfair dismissal). Implementing such a requirement, either as a condition of employment or ‘reasonable instruction’ would also bring risk of discrimination claims by those with protected characteristics being the reason as to why they are unable to be vaccinated (such as disability or religion).
Whether a request to take up the vaccine is a lawful instruction and whether the discrimination could be justified will depend on the nature of the job and whether it is a reasonable means of achieving a legitimate aim. It’s possible that in some sectors, such as care work, or work undertaken in a medical setting, a requirement to be vaccinated could be validly justified in line with the role. However, the vast majority of employers are unlikely to be able to argue that taking this step would be proportionate and necessary. Employer’s should carry out the specific risk assessment for the role to consider whether a COVID-19 injection would be required as opposed to other Covid secure arrangements.
Employers can encourage and recommend that employees have the vaccination. Some employees may be encouraged or incentivised to have the vaccine as it may affect their job. For example, there have been suggestions about opening up commercial flights more widely to those who have been vaccinated, and countries easing their entry and quarantine restrictions for those who have been vaccinated. So, if a vaccination certificate is required for a traveller to enter a country, this may impact on an employee’s ability to do business in certain areas and may lead them to determine that they would need to have the vaccine.
Alongside employment issues the employers must consider specific data protection concerns, as any information regarding whether an individual is vaccinated will amount to special category data with specific requirements for processing such data. Employers will also need to review their return to work risk assessments and office configurations once vaccines are more widely available, and to factor in staff who may or may not have been vaccinated into their thinking and planning.
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