A Guide for UK Employers on Reopening the Workplace
10 MAY 2020
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.
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.
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.
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Yulia BarnesManaging Partner
Yulia Barnes is our Managing Partner. She is an experienced solicitor and advises on a wide range of contentious and non-contentious matters for both private and corporate clients.Yulia started her legal career at a large international Magic Circle firm. She then became a partner at a regional law firm and headed a Dispute Resolution Department. She then moved in-house before starting her own Boutique practice, Barnes Law, with the aim of providing exclusive services to high net-worth individuals and privately-owned businesses. More details can be found on her LinkedIn profile.
Expertise Yulia and her team are widely recognised for their professional and practical approach to matters. She is committed to ensuring that her clients’ objectives are achieved in the most cost-effective way possible.
Approach Yulia has a wealth of experience working with businesses of all sizes: from large multinational corporations to start-ups. She has particular expertise in a hospitality industry, investment funds, private and corporate clients, and focuses on startups and technology-driven companies. Yulia brings the same level of attention to detail, professionalism and a personal touch to every case and client, and truly immerses herself in her clients’ businesses. She prides herself on her problem-solving, commercially astute approach and her track record of partnering with clients to help them achieve their strategic objectives.
Will joined Barnes Law as an Associate Solicitor in Spring 2023, shortly after qualifying in September 2022.
Will works mostly on real estate and corporate/commercial matters. Will enjoys providing advice on transactional matters.
Away from the office, Will can be found reading or playing golf. While he played rugby until university, and rowed throughout his degree, he now tends to watch both from the sidelines. During the winter he can also be found skiing.
Will plans to continue developing his legal skills and experience at Barnes Law, under the expertise and guidance provided by Yulia.
Mark is an experienced solicitor whose practice areas include intellectual property (IP), IT, data protection and general commercial law.
Mark advises businesses of all sizes – from sole traders to corporations. Among his clients are: clothing and lifestyle brands, restaurants and food suppliers, IT companies, banks, hedge funds and venture capital firms, education providers, medical and pharmaceutical brands.
Outside of his practice, Mark also advises members of the Institute of Directors as part of its Directors’ Advisory Service.
- Prosecuting a UK trademark application on behalf of an education provider and representing them in related UK IPO opposition and revocation proceedings;
- Advising a publisher and a delivery business on data protection matters, B2B and B2C Ts & Cs of sale, website and app Ts & Cs, all aspects of global brand protection;
- Advising footwear brands, alternative asset managers and hedge funds on their global brand protection, including overcoming various refusals, representing them in opposition proceedings and settlement negotiations;
- Representing a central bank in opposition proceedings before the UK IPO;
- Advising a lifestyle brand concerning trademark clearance and protection, negotiations for a website/app development and maintenance agreement.
Ioulia TatawatFamily Law Adviser
Ioulia has a solid background in family law and offers guidance, clarity, and support to clients during one of their most challenging times in their life.
She advises on all three pillars of separation: divorce, children matters and financial settlements. Ioulia is a member of Resolution and is keen to try to settle matters at early stages.
Ioulia is dedicated to assisting clients and navigating them through their legal matters with clarity and support.
Alex joined Barnes Law in September 2023 after finishing his master’s degree in law. Prior to joining Barnes Law, Alex worked in property litigation at Ashfords. Alex assists Yulia on a variety of both contentious and non-contentious matters.
Outside of the office, Alex enjoys reading and hiking. Prior to working in law, Alex was a competitive tennis player.
Alex continues to develop his skills in legal practice under Yulia’s guidance, he plans to sit the Solicitor’s Qualifying Exams (SQE) in 2024.
Mehves joined Barnes Law in August 2023, right after graduating from Queen Mary, University of London (LLB Senior Status). As part of her qualification journey, Mehves is currently pursuing her Legal Practice Course (‘LPC’) at the University of Law. She also holds a degree in European Union Law from Maastricht University, Netherlands.
Mehves works closely with Yulia on a variety of contentions matters and also writes Barnes Law’s legal blogs, manages social media accounts and is responsible for marketing.
Outside of work and studies, she enjoys running, tennis and yoga.
Mehves is looking forward to developing her legal skills at Barnes Law.
Julia PodgornovaInvestor Relationship Manager
Julia guides clients in making important business decisions based on comprehensive risk assessment and strategy. She supports investors in devising strategies designed to maximise each business’s potential from pre-seed to IPO.
Julia’s particular area of expertise are IT start-ups at different stages. Julia supports business through their fund-raising journey. As an Investor Relations Manager, Julia communicates with investors to facilitate a smooth round and legal part of each transaction.
In her free time Julia enjoys sailing, ballroom dancing, art exhibitions and travel.