Preparing for the end of lockdown – key issues for employers

Published 5 May 2020

With the UK Government considering an “exit strategy” it is now time for employers to start doing the same. Here we look at the possible lockdown exit strategies and the key practical issues for employers to consider.

Planning for the Return  – If not now then when?

It is important that employers begin to plan how to manage the return to the workplace when the Government starts to ease the lockdown. The guiding principle will be to safeguard the health and safety of your workforce and customers/clients. The leaked Government guidance documents give us an indication of the Government proposals to get people back to work in the coming weeks. The TUC has published a paper setting out the steps it wants the Government and employers to undertake, making it clear that no easing of restrictions should take place until adequate measures are in place to protect the health and safety of working people.  We already have the first European case on this with a French court’s ruling that an employer failed to recognise its obligations regarding the health and safety of its workers, in respect of physical distancing, hygiene and cleaning of its warehouses. We can expect to see similar challenges in the UK both on an individual and collective basis to precipitate attempts by employers to achieve workplace “normality” and this is likely to be accompanied with significant adverse reputational consequences. 

This briefing looks at some of the issues under three heads: considering health and safety measures, looking at the other workforce issues associated with a return to work and finally addressing where an employer may consider it is not economically viable to allow employees to return to work in the way they were before the lockdown.

Health and safety measures

Despite returning to work, the risk of infection and resurgence of Covid-19 remains. Employers are under an obligation to ensure they take reasonable steps to provide employees with a safe place of work. This will  mean undertaking  appropriate risk assessments and implementing controls to mitigate identified risks. While we can expect sectoral guidance from the Government, this will not remove the obligation on employers to consider their specific circumstances.

Relevant issues to consider will include:

Social distancing will fundamentally involve consideration of managing the minimum number of staff necessary to be present in the workplace at any one time. Appropriate steps to reinforce social distancing may include: displaying appropriate signage and floor markings to remind employees/customers to observe social distancing guidance, wherever possible; continued working from home for some staff; staggering start and finish times; a rota system for being present in the workplace and/or reduced hours. Some measures may require a change to staff terms and conditions and the mechanism by which such changes are achieved will need to be considered before implementation.

Physical layouts: Does the layout of workstations allow for social distancing, can one flow pathways be created through buildings that allow for this, with, for example, separate entry and exit points from buildings/ floors? Can the physical features of the workplace be changed to maximize protection for staff and customers/clients?

Travel arrangements: Can an employer minimise staff commuting at peak hours and encourage using modes of transport which reduce exposure to others? Consideration may need to be given to whether the business can support this financially, for example by offering free/ subsidised  parking or cycle or walk to work schemes. If workers need to share vehicles to carry out work, can such use be minimised?

Additional hygiene requirements will need to be considered. Along with the familiar reminders to handwash frequently employers may need to consider whether PPE or simple facial masks should be worn in the workplace.

Testing, Screening and Credentialing: More controversial options for managing the risk include the use of temperature testing and the Covid-19 antigen test if an employee or someone in their household suffer symptoms.  Employers may also consider the use of antibody tests and tracing Apps if/when these become available or requiring employees to obtain and carry health credentials confirming they have recovered from Covid-19. Any requirement for such testing/ credentialing  will need to be carefully considered in light of prevailing government guidance. There will also be significant contractual and data protection issues to work through before introducing mandatory measures.

Insurance: employers will need to check their insurance arrangements to ensure they have appropriate cover in place and notifying their broker / insurance provider of the plans to return staff to workplace may be necessary.

Workforce measures

In parallel with considering the health and safety issues, employers will need to address their mind to associated employment/ workforce issues:

Who should return and when? Should you have a staggered start to build up to a full return? Is there a requirement for certain roles to be represented in the office? Can / should staff continue to work from home? If you do not require all staff back immediately how do you select staff to return in the first wave? One option could be to ask for volunteers. Employers may also consider allowing employees to stay at home if they are vulnerable (in such a case an individual risk assessment should be considered) or have caring responsibilities. Until schools and nurseries are open, staff will continue to have issues around working whilst accommodating childcare responsibilities. All decisions relating to selection for return should be based on objective business reasons to avoid discrimination risks.

What happens if an employee refuses to return? It is anticipated that some staff will be worried about coming back to work and may refuse to do so. Such concerns should be managed sensitively and employers should seek to understand the reasons for the objection to returning to the workplace.  As well as the duty of care to take reasonable steps to protect the health and well-being of staff, employers should be aware of their duty not to victimise those who have raised genuine health and safety concerns (which could be protected under the whistleblowing legislation as well as specific provisions in health and safety cases).

Communication of the return to work. Employers should review previous communications / agreements reached with staff regarding furlough or working from home. These may refer to notice or other provisions required for a return to work. Employers should bear in mind that if any staff are being asked to return before they have had 3 weeks’ of continuous furlough under the Government’s Coronavirus Job Retention Scheme (CJRS) they will not be able to claim the Government grant in relation to that individual.

Communication, engagement and support In relation to both health and safety and workforce planning it is recommended that employers have early engagement with Union or employee consultative bodies. This will assist development of proposals and employee buy-in. Transparent and regular communication of plans to employees will also be important. A “Coronavirus return to work policy” may be helpful to provide guidance on the measures the business is putting in place, what is required of staff, and the support available. It should also deal with the consequences of staff not following the policy and how staff may raise any potential concerns.

Reviewing annual leave entitlements may be necessary if staff have a significant amount of untaken leave which may disrupt business during the remainder of the year. Consider requesting that some leave is taken during furlough periods and/ or that a percentage of leave entitlement is taken by a point in the holiday year or in subsequent holiday years. Providing contractual and statutory requirements are followed an employer may give an employee notice of dates to take annual leave. Legislation has also been introduced which gives some flexibility to carry over leave for 2 years where an employee has not been able to take this for a Covid-19 reason.

Dealing with employees suffering with Covid-19 symptoms after return to work  This is likely to continue to be an issue for workplace planning until we have a vaccine. An employee who is unable to attend work due to illness will be entitled to sick leave and pay as per statutory and contractual entitlements. Employees with Covid-19 symptoms will need to stay at home but a number of additional complex issues may arise. For example, what if they need to self-isolate because a member of their household has symptoms or is shielding – what implications will this have for pay? What if an employee has symptoms whilst in the workplace? In addition to deep cleans of the premises, contact tracing and potentially asking close colleagues to not come into the work place may be needed. It is better to have a clear policy on how such situations will be dealt with rather than leaving it to the discretion of individual managers which might result in inconsistent practice and expose staff to avoidable risk.

Changes to the workforce  / Furlough exit strategies

There is ongoing uncertainty as to what the future holds. Currently the CJRS is due to end on 30 June 2020. Many employers have called for an extension of the CJRS or more flexible transitional measures to enable staff to work reduced hours whilst furloughed. Certainty is required as soon as possible given the time required for collective consultation. In the meantime many employers will need to consider possible cost cutting steps in order to ensure the sustainability in the longer term. Employers will be familiar with the usual considerations that apply here. These include:

Alternatives to redundancy Options include; bringing people back on normal hours but reducing pay; reducing hours and corresponding pay; voluntary redundancies; voluntary pay cuts; extending furlough without the benefit of the CJRS grant, offering unpaid or part paid sabbaticals. Some of these may be offered on a voluntary basis. Where these alternatives require a change to terms and conditions of employment, collective consultation requirements (see below) may apply.  If employees do not agree to the change, an employer may, as a last resort, need to consider dismissing employees and re-engaging them on new terms.

Redundancies A need to make redundancies will trigger individual and potentially collective consultation obligations. Employers will need to bear in mind the timing of such consultation if redundancies are possible at the end of the CJRS. Where an employer proposes to dismiss as redundant 20 or more employees at one establishment within a 90 day time period, the employer is required to consult for a minimum of 30 days. Where 100 or more redundancies are proposed the requirement is extended to 45 days. This process needs to be concluded before any dismissals can take effect and notice of dismissal cannot be given until after the end of meaningful consultation (although it is possible to serve notice within the statutory consultation period). Current Government guidance on the CJRS is permissive of collective consultation being conducted with staff representatives who may be furloughed themselves.

None of the matters discussed above are straightforward and the current Covid-19 situation will undoubtedly test employers relationships with their employees. The employers who come out of this difficult situation best are likely to be those who have planned carefully the steps they have to take, the reasons for those steps and have taken their employees along with them.

If you have any questions on this briefing please contact your usual DACB contact, Udara Ranasinghe or Joanne  Bell.