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 announced that it would be lifting many of the restrictions that applied from 19 July and entering into what it terms Step 4 of its roadmap. Part of Step 4 is that the government is no longer instructing people to work from home if they can and so employers can start to plan a return to the office. On 14 July the Government issued new guidance to cover working safely during Coronavirus. the revised guide suggests that during this period of high prevalence of the new variant the government expects and recommends a gradual return over the summer. Any return to the workplace should be discussed with workers, and trade unions to make working arrangements that meet both business and individual needs. The number of guides has been reduced and so, for example, there is now one guide that covers factories, plants, warehouses, labs, research facilities, offices, contact centres or operation rooms. It can be found here.
The guidance has a list of priority actions to take to protect the employer, staff and customers: These include completing a health and safety risk assessment that includes the risk of Covid-19; provide adequate ventilation; an increased cleaning regime; turn people with coronavirus symptoms away; enable people to check in at the workplace; and communicate and train.
As stated, the employer must carry out a health and safety risk assessment which covers the risk of COVID-19. 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.
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.
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?
From the introduction of Step 4 on July 19, social distancing guidance no longer applies and there are no limits on social contact between people from different households. However, the guidance is clear that Covid-19 can still be spread through social contact and so employers should take steps to mitigate the risk by reducing the number of people that workers come into contact with. The guidance makes the following suggestions:
- Review layouts;
- Use screens or barriers to separate people from each other;
- Use back-to-back or side-to-side working instead of face to face;
- Hot desking should not be used and workstations should be assigned to an individual if possible. If not possible then they should be cleaned between each user.
A great deal of importance is also placed on ventilation. This is to mitigate the risk of aerosol spread of the virus in enclosed spaces. This includes maximising the supply of fresh air, either through improving natural ventilation or using mechanical ventilation. In addition, employers should identify any poorly ventilated spaces and take steps to improve the fresh air flow in these areas.
- Provide clear guidance on how to reduce the risk of spreading Covid-19 to people when they arrive
- 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?
As mentioned above, social distancing no longer applies in the UK from 19 July. However, the risk of spreading the virus should be mitigated by limiting the number of people that the workers come into contact with. This can include by using fixed teams or partnering or cohorting so that each worker only works with a few others.
This 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.
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 any contracts 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?
As mentioned, although social distancing will no longer apply, it is necessary for an employer 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. Anyone who is required to self-isolate should do so if they, or anyone in their household has symptoms or if they have been in close contact with someone who as a positive Covid-19 result.
In addition, to reduce the risk of the virus spreading through contaminated surfaces employers need to review cleaning the workplace and advise workers to wash their hands or use hand sanitiser frequently. The use of face masks will not be mandatory, but employers can encourage the use of face coverings by workers in enclosed and crowded spaces. 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 no longer required by law. However, the government expects and recommends that people continue to wear face coverings in crowded, enclosed spaces. Employers should therefore encourage the use of face coverings in indoor areas where the workers may come into contact with people that they do not normally meet. However, employers should consider that some workers may not be able to wear face coverings and the reasons for this may not be visible to others.
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?
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.
- Consider methods of travel to the office
- Establish protocol for determining business travel
How does the prudent employer decide which employees should return to the workplace?
Although workers are able to return to the workplace, the Government has suggested a gradual return during the summer period. 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:
- Give extra consideration to those who are at higher risk. Workers who are clinically extremely vulnerable are no longer advised to shield, but an employer should continue to support those workers by discussing their individual needs and supporting them in taking any additional precautions advised by their clinicians.
- Employers have additional protection requirements with regard to pregnant women.
- Consider workers who need support around mental health and wellbeing.
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
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’. However, 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 (for example by circulating information around the benefits of being vaccinated, how to book a vaccine appointment, and outlining the positive impact vaccination will have on the workplace as a whole). Some employees may be encouraged or incentivised to have the vaccine as it may affect their job (for example, if they are regularly required to travel), as well as their daily life. As restrictions begin to relax in the UK, people who have received both of their vaccinations will not have to self-isolate even if they come into contact with a person who has tested positive for COVID-19, and will not have to isolate on return from travel to certain countries.
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. The ICO has published guidance for organisations on vaccination and Covid-19I status checks [here]. The reason for checking or recording an employee’s Covid status must be clear, necessary and transparent. 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.
What issues arise in introducing Hybrid working?
An employer in the UK can introduce hybrid working. However, before implementing any such policy the employer will need to consider the following:
- What will be the split of time between the office and the time working from home? Will this be determined by the employer or on a case by case basis? The employer must always reserve the right to call the employee into the office on days as and when required.
- Will all positions be able to take up hybrid working?
- Do the same working hours apply when working from home or in the workplace?
The employer will also need to consider whether the existing contract of employment allows for hybrid working or whether any amendments will need to be made to the contract. In particular they should review the mobility clause to ensure that they have the necessary flexibility to amend an employee’s place of work from the office to a mixture of office and working remotely. If the clause is not flexible enough then the employer will need to seek consent to the place of work. The contract may also impose limits on the employee working abroad as there may be tax, regulatory and immigration issues which arise if the employee works abroad for a period of time. Amendments may also be required to working hours and also to consider whether this will have an impact on any remuneration and expenses. The employer will need to determine what steps will be taken if the employee refuses to agree to such a change.
The employer needs to consider how any hybrid working policy fits in with the right for an employee to make a flexible working request under the Flexible Working Regulations 2014. Employees who have at least 26 weeks’ continuous service have the right to request flexible working. The hybrid model may not cover all areas of flexible working and employers must allow employees to make a request.
Employers must ensure that they do not create a two-tier workforce and employees who are working in the office shouldn’t be treated differently to those who work from home.
Employers need to provide a safe system and place of work. They will need to consider how a health and safety work station assessment will be completed and whether this will be done virtually. As a result of the assessment what tools and equipment will need to be provided to the employee? If an employee is disabled the employer has to carry out reasonable adjustments and so this may mean that adjustments are provided both in the workplace and in the home. Employers must also have in place processes to monitor employees’ wellbeing, including their working hours from home.
Any changes should either be reflected in the contract of employment or in a flexible working policy. The policy should contain information regarding:
- Who is eligible for flexible working
- Whether it is mandatory or optional
- The number of days per week that employees are expected to work in the office and at home
- Any pre-attendance requirements
- An outline of the circumstances in which employees may be required to attend the workplace
- Any limits on where an employee can work remotely
- Guidance of what is expected of employees working remotely
- Any data protection and confidentiality obligations.