Think fast: the slow return to the workplace

With the new “Stay alert” message from the Prime Minister on 10 May 2020, we face a slow return to the workplace for many people.

What does this actually mean for employers and employees on the ground, from an employment law perspective?

We consider five areas about which employers need to stay alert as they navigate these new and rocky waters:

1. Health and safety obligations
2. Disability discrimination concerns
3. Unfairness
4. Future flexibility
5. Redundancies

1. Health and safety obligations

As employers will know, they have a duty to protect the health, safety and wellbeing of their employees. In particular, this includes preventing diseases and ill health, providing a safe place of work and providing safe systems of work.

Employers throughout the country will no doubt be carrying out risk assessments as required by health and safety legislation and consulting with workplace safety representatives.

The overlap between health and safety obligations and employment law is even more stark in the world of COVID-19. Many employers will know that their employees have the right not to be subjected to any detriment by their employer and not to be dismissed where the employee has reasonably believed that there were circumstances of danger in the workplace which were serious and imminent and which he or she could not reasonably have been expected to avert. There will doubtless be employees who will be nervous about returning to their workplace and others who will claim that they cannot return to their workplace. Where an employee suffers from severe anxiety, this could amount to a disability (see below). All employers should seek to comply with the Public Health England guidelines on safety and follow all government guidance, including guidance on social distancing and appropriate PPE. Employers will also be well advised to consider and, if appropriate, address employees’ concerns surrounding the re-opening of workplaces in order to avoid claims.

We expect Employment Tribunals to be faced with many future cases looking at this balancing exercise where employees are asked and refuse to return to work because they consider it to be too dangerous to do so but the employer argues that they have put in place all necessary protections and considers a return to work to be a reasonable instruction.

It is noteworthy that an employee does not need to have 2 years’ employment to claim automatic unfair dismissal on the grounds of failure by the employer to protect their health and safety.

In managing ongoing health and safety risks for the return to work, employers should consider measures including the following:

• Rearranging desks and workstations to ensure that these are at least two metres apart and/or not facing each other.
• Ending hot desk arrangements to avoid equipment sharing.
• Limiting staff numbers in the office at any one time. Consider splitting teams in two and alternating periods of attendance in the office.
• Providing face masks for employees to wear and providing information on how they should be used depending on Government guidance.
• Using two-metre floor markings in frequently used areas such as entrances.
• Limiting employee numbers in small spaces, such as lifts.
• Allowing flexibility to employees who have to travel on public transport to avoid the rush hour.
• Providing access to handwash and hand sanitiser and reminding employees of the recommended hygiene measures.
• Increasing deep cleaning of the office, especially for regularly touched items such as door handles, light switches and taps.

2. Disability discrimination claims

It seems likely that employees who have been infected with COVID-19 (or have someone in their household who has been infected) may well be protected under the disability discrimination legislation. This will depend on how the disease has potentially impacted day-to-day activities and the long-term prognosis of any significant impact on physical or mental health. Employers will need to take such potential disability into account.

It has become clear that people who suffer certain health conditions are at higher risk of serious illness or death if they contract COVID-19. Claims might arise where employees with a disability which they believe puts them at high risk of serious illness are required to travel to and attend work or refuse to do so and are dismissed due to their absence. Employers should seek to ensure that disabled employees are not treated unfavourably and should consider what reasonable adjustments might be required to facilitate such an employee remaining in or returning to work.

3. Unfairness

Employers need to ascertain who they require to attend the office and who can stay at home. Should and can those people be rotated so everyone gets some real face time with managers in advance of any redundancy exercise, particularly when employees may argue that face time is so vital when managers make their decisions?

The Chancellor has just announced that the Coronavirus Job Retention Scheme will continue unchanged until the end of July and available to all employers until the end of October, with greater flexibility built into the scheme from August until October.

Employers will need to consider the guidance applicable to their sector in terms of bringing staff back to the workplace and will need to ascertain who they require to attend the workplace and who can work from home or should remain on furlough. How can the employer ensure that such decisions are reached fairly? Ultimately, the employer will need to rely on fair and objective selection criteria based on the current and expected future business needs.

Every employee is unique and their home life may not be conducive to working. Who would look after their children if they are recalled to the office? Might those childcare obligations predominantly fall on the mother and, if so, could this lead to indirect sex discrimination claims if an employer insists that a working mother should return to the office when she has no childcare in place?

Some large companies are setting up staff committees to help them debate and determine these issues; some are considering whether to use any already established representatives for redundancy collective consultation or use those staff committees as possible future representatives for collective consultation.

Some smaller companies may be able to deal with the issues of fairness on a person-by-person basis.

Ultimately, there needs to be a clear line of communication between managers and their juniors, as well as an upward cascade with senior managers listening and then ensuring that their decisions are as fair as possible and the knotty issues can be ironed out.

4. Future flexibility

With employees having a glimpse into a new way of working over the past few months, there is likely to be an increased pressure on employers to adopt more flexibility in their employment practices. With this in mind, now is the best time for employers to ensure staff handbooks, policies and procedures are reviewed and updated to reflect how they see the new normal for employees at their business.

5. Redundancies

Unfortunately, declining workload may require redundancies, especially with the current Coronavirus Job Retention Scheme due to end on 31 July 2020 and a revised scheme taking effect from 1 August.

The key point for employers is to start consultation at the point they are proposing redundancies. Therefore, if employers do not consider it viable for employees to return from furlough on 31 July 2020 or furloughed employees refuse new arrangements from 1 August under any revised furlough scheme, then steps need to be taken sooner rather than later.

This is particularly important for employers proposing 20 or more redundancies in one establishment within a rolling 90-day period as collective consultation obligations require consultation to take place for at least 30 days (or 45 days for redundancies of 100 or more). Failure to comply with the required information and consultation obligations can lead to claims of unfair dismissal and a financial award for each affected employee of up to 90 days’ gross salary (called a ‘protective award’).

Employers will also need to bear in mind that, alongside the consultation process, they will also need to factor in employee notice periods, accrued but untaken holiday pay and any enhanced or statutory redundancy costs.

In conclusion, there are a myriad of complex issues and unintended employment law consequences as we move slowly from “Stay at home” to “Stay alert”, and the complexities are immense.

Further government guidelines are to be issued. To check the current position in such a fast-developing situation and for further information about anything covered in this article, please contact:

Emma Clark, Louise Grendon and Brian Palmer