A Guide for UK Employers on Reopening the Workplace

Following the latest announcement by the Government, employers should begin considering  how they will reopen and reintegrate their staff. It is a good time for businesses to assess internal policies in light of the pandemic and introduce safety measures to protect their staff.

It is unlikely that employees will be returning to the same workplace environments they left as the pandemic would have an impact on a variety of issues, for example on how we commute to work, interact with co-workers and how the workplace is managed in a post-COVID-19 world. It is likely that businesses that proactively adopt and implement new procedures would be better placed to adjust to the new reality quickly. In this guide we will highlight some issues the business owners should be thinking about now.

It appears that there will be a gradual industry specific recommencement of workplace activities. You may consider adopting a split-team system by rotating certain team members in or out of the office and encourage employees to return to work while maintaining a flexible working-from-home policy.

Businesses have a duty to protect their staff and, for this reason, some special considerations are required for employees who are considered to be in a high risk category from the virus, for example older people or people with chronic conditions. It is therefore advisable to be sensitive to the employee requests and look at who can return to work on a case-by-case basis with a careful consideration given to accommodate concerns. Employers should be mindful of implementing broad policies aimed at keeping everyone in a certain category at home or at work.

Bringing Back Furloughed Staff

The Government’s Job Retention Scheme is currently expected to end on 30 June 2020. Employers will have to make a decision, depending on their circumstances, as to whether employees can return to their duties or whether a restructuring of the workforce and potential redundancies are required.

If redundancies are likely, employers should begin assessing their consultation obligations sooner rather than later. In particular, employers that may need to make 20 or more employees redundant at any one establishment should be mindful of their statutory collective consultation obligations. It may therefore be prudent to consider starting the employee representative election process in advance of the Job Retention Scheme end date.

Employers should also consider how the return of employees from furlough will be handled. While communications should take into account the particular circumstances of relevant individuals, in many cases, it will be sufficient for the employer to notify staff and inform them of its plans to reopen the workplace. It may be prudent at that point for the employer to communicate any social distancing measures it has or is planning to implement in the workplace.

Reintegrating Staff

Before staff can return to the workplace, employers should consider implementing social distancing plans and producing written policies around how such plans will be introduced and maintained. It is conceivable that having in place certain social distancing measures or a social distancing plan may be a legal requirement.

It is advisable for employers to communicate with staff early on about any planned alterations to workplace practices and how the changes will work in practice.

In addition to social distancing plans, a key consideration for employers to ensure the health and safety of the workforce is whether to conduct COVID-19 tests on staff and third parties, and if so, what type of test to conduct.

Although additional government guidance on permissible testing may be forthcoming, employers intending to implement COVID-19 testing may consider what type of test they will run, who will conduct the tests, whether the test must be performed in a clinical lab or by a licensed healthcare professional, whether input from medical professionals will be required, who will be tested, how often tests will be done, and how test results will be maintained. You will also require to obtain consent from your employees to carry out the tests. Please be mindful of the data protection rules.

Whistleblowing Issues

There has already been considerable press coverage of workers raising concerns that their employers are placing them at serious risk, including claims that government guidance is not being observed, social distancing is not taking place, face masks are not being worn, and sanitation policies are not being followed. Such complaints may qualify as protected disclosures under the UK whistleblowing law. Amongst other things, this means that workers may be protected from being subjected to detriment or dismissal on the basis that they made the disclosure.

As there is no financial cap on compensation in whistleblowing claims, this remains an area of significant risk for employers and one they should carefully consider.

When considering if a protected disclosure has been made, any relevant policies that the employer has in place should be consulted. Most policies will have a whistleblowing procedure or an applicable general grievance procedure. It may also be prudent to review the businesses’ whistleblowing policy and make sure it is accessible to staff so that issues are raised and managed within the prescribed framework.

Review of Policies and Contracts

Termination provisions in contractor and agency agreements should be considered to ensure they give the business the ability to terminate in the context of a COVID-19 or related business downturn.

This is a good time to review policies given the experience gained during this time and in light of recent legislation and guidance, for example a holiday policy. Many employees may wish to accrue holiday rather than take holiday during the lockdown. Employers may therefore need to consider whether changes to their carry-over holiday policy are required if employees return to work with significant amounts of accrued leave, particularly in light of the new flexibility for up to four weeks’ annual leave to be carried over into the next two leave years where it has not been reasonably practicable for the employee to use such leave due to the impact of COVID-19.

Businesses should assess whether their travel policies need to restrict travel to only essential business travel and/or restrictions on travelling to countries that continue to struggle with containing the virus.

Businesses may consider reviewing their current pandemic response plans and policies in light of their COVID-19 experiences. These may address what lessons have been learned and what new processes and procedures should be put in place to prepare for a potential recurrence of the virus, management succession in the event any of the leadership team is affected, and public relations messaging.

Provisions in employment contracts should be reviewed, drafted, and/or updated to ensure that the employer has the contractual right to take these steps, particularly in the event a further shutdown is required at some point in the future.

For more guidance or a free consultation please contact us on info@barnes-law.co.uk