On Monday 11 May, the UK Government published its strategy to bringing the UK out of lockdown, together with eight guides for different types of work on working safely during the coronavirus (COVID-19). There is a distinct message: it is important for businesses to carry on. Workers have been encouraged to work from home where they can but, where this is not possible, they should travel to work if their workplace is open.
As employers diligently prepare to return to the workplace, the Government has announced an extension to the Coronavirus Job Retention Scheme (CJRS) until October 2020. It has been reported that there will be no changes until the end of July; however between August and October employees on furlough leave can return part-time, with employers paying a percentage of their salaries. This additional support from the Government will give employers much needed flexibility to ensure their workforce can return to work safely.
In these unprecedented times, it is clear that there will not be an immediate return to business as usual as it was before the COVID-19 pandemic and businesses will need to learn to adapt to the 'new normal' in order to survive. We explore the key considerations that employers will need to bear in mind when planning to re-open their workplaces and encourage employees to return to work.
Re-engaging the workforce
Many employers will have made use of the Government's CJRS and will have placed their workforce on furlough leave. However, as aspects of the lockdown are lifted, employers may require certain employees to return to the workplace depending on business need and where there is no option for home working. Issues may arise where some employees are selected to return from furlough leave and others are not; we recommend that employers adopt an objective and fair criteria when determining who should return.
When deciding who should return to work and when, employers should consider how they will deal with vulnerable employees and those workers who are shielding, with a careful consideration of their duty to make reasonable adjustments to avoid exposure to potential discrimination claims. Further consideration should be had in respect of those employees who are fearful of returning to work but are not vulnerable.
It is inevitable that some employers may need to carry out redundancies as a result of the impact of COVID-19 on their business. Employers will need to address the practical and logistical challenges of carrying out a redundancy process whilst employees are on furlough leave or working from home. These include carrying out a fair and non-discriminatory redundancy selection process, considering the alternatives to redundancy and consulting with affected employees before reaching a final decision. If they propose to make 20 or more redundancies at the same establishment over a 90 day period, employers will also need to inform and consult recognised trade unions or elected employee representatives before issuing redundancy notices. The key to a successful redundancy programme is to plan carefully and communicate clearly.
Practical considerations
The new government guides provide essential information for employers, aimed at ensuring that the risk of infection from returning to work is as low as possible. Additional measures such as social distancing, workplace hygiene and communicating with your workforce are all addressed. Clear guidance is also given on the role of PPE and face coverings in the workplace.
Employers have a statutory duty to ensure the health, safety and welfare of their employees at work. We highly recommend that, as a first step, employers carry out detailed workplace health and safety audits and risk assessments in line with the new guidance to identify and manage the risks of employees returning to work. Employers will need to implement practical safeguards to protect employees returning to work, particularly where employees' roles require considerable contact with others such as members of the public, clients, contractors and stakeholders. Employers are advised to display "COVID-19 Secure" notices for their workforce and for visitors confirming that the guidance has been adhered to.
Testing is regarded as essential in preventing an uncontrolled spread of disease and to enable lockdown restrictions to be eased. Employers may wish to gather employee health data through temperature checking, tracking and tracing but it is imperative that they have regard for data protection legislation when doing so.
As a result of the lockdown, some employers may have invested in their technology infrastructure enabling their employees to work from home. As the lockdown eventually lifts and more employees are able to return to the workplace, employers may wish to capitalise on their investment and reduce costly office rent by encouraging or requiring employees to remain working from home or elsewhere. Employers should have regard for ensuring the welfare of their workforce where there is a lack of face to face contact, considering the employee wellbeing risks associated with a blurred distinction between work and home life. We recommend that employers ensure they review their policies of insurance and ensure they have adequate indemnity protection given the changes to working practices as a result of the COVID-19 pandemic.
Contracts, policies and procedures
Employers may wish to consider whether their existing model of employment remains appropriate and whether measures should be taken to safeguard future business resilience. Going forward, we recommend employers review the need for national and international travel, as well as taking steps to change their approach to face to face meeting where this can be replaced with virtual communication. Some employers may need to consider adjusting incentive and bonus programmes given adverse effect that COVID-19 may have had on company finances.
In order to ensure they can comply with government guidance, employers may need to consider changes to employees' terms and conditions of employment, including whether to require employees to work in different locations or to change their working hours. Employers should consider how their workforce come to work, especially if they have to commute using public transport and the safety of travel to and from the workplace. Before making any contractual changes, employers should review whether they are entitled to make such changes and otherwise make arrangements for agreeing changes with employees. We encourage employers to actively listen to employees' inevitable concerns about returning to work after a long period of enforced absence and be flexible in addressing these.
Employers may well have to change existing employee policies (for example, those in relation to flexible and home working) and to introduce new employee policies to ensure compliance with the government's guidance. These may include a general 'back to work policy' and others that are more specific in addressing practical issues, such as the need to increase hygiene measures, maintain social distancing and requiring employees to self-report illness. However, we recommend that employers should think about how they will deal with breaches of such policies and disciplinary procedures should be unequivocal on this.
The new normal
All employers will face practical and logistical challenges as the lockdown eases and their workforces gradually return to work. They will need to undertake risk assessments, adapt premises, revise contracts and polices and make changes to virtually every aspect of working lives. Employers will need to be adaptable, flexible, open minded and, above all, sensitive to the mental health and wellbeing of their people.
If you would like any further information with regard to the issues raised in this update please contact your usual DWF contact or another member of the Employment Team.
The extension of the CJRS to October and the reports of the new flexibility under the scheme from August will give employers valuable time to consider the logistical issues of returning the workforce. A part time work element to the CJRS will allow employees to be returned to the workplace in a safe, measured way, with careful consideration to social distancing. Further details are expected at the end of May, we will keep you updated.
Please see our employment checklist for a step by step guide on the key measures to consider >
Return to our COVID-19: Returning your workforce hub >
Key resources
Our plan to rebuild: The UK Government’s COVID-19 recovery strategy
Government guidance to help Brits get back to work
Government guidance on working safely during coronavirus (COVID-19)
Acas - Coronavirus (COVID 19): Advice for employers and employees
