All your legal back to work questions – answered

16 Jul 2020 By Francis Churchill

Employment law experts advise on some of the most pressing areas for organisations to get to grips with as they reopen their doors

While the back to work drive is now for many in full swing, it’s by no means a straightforward matter. There’s now a raft of government guidance and more than a few grey areas to navigate. People Management offers the lowdown on some key questions on returning staff to the workplace in England.

What are the new rules on social distancing? 

Where two-metre social distancing is not possible, this can now be relaxed to ‘one metre plus’ – meaning at least one metre – as long as additional steps to mitigate the risk of transmission are taken. These include avoiding face-to-face seating, reducing the number of people in enclosed spaces, using protective screens and face coverings, improving ventilation and keeping staff in set teams.

The new rule will be met with “a sigh of relief” from the hospitality, construction, manufacturing and engineering sectors, says Ged Mason, CEO of the Morson Group, all of which will be able to bring more people back to work environments and “begin to see normality creep back into their working lives”.

However, Elliott Kenton, a specialist in health and safety law at Fieldfisher, says there is a “question about consistency” between the ‘one metre plus’ rule and the government’s detailed guidelines on making workplaces ‘Covid secure’, published in May. The older guidance still stipulates that “where a two-metre distance is not possible, careful assessment is needed as to whether that business activity should take place at all and, if it must, that transmission risk must be managed by other infection control measures”, advises Kenton.

What additional staff protections are now required? 

Much of the guidance released in anticipation of hospitality businesses being allowed to open on 4 July was similar to that released in May. There are also some specific recommendations for those in ‘close contact services’ such as hairdressing: employees should have individual workstations, wear a visor where a barrier isn’t feasible and ask customers to arrive at their allotted appointment times to avoid overlaps.

In a similar vein, hospitality venues will be restricted to table service indoors, with the guidance suggesting businesses consider how customers and staff will move around, and introduce contactless methods of ordering, paying and – in the case of hotels – checking in and out. It also says staff should change into uniforms onsite so employers can bulk wash uniforms.

“Businesses should not grow complacent about the prevalence of the disease,” says Kenton. He warns that while the government advice on coronavirus is likely to change, “businesses’ obligations to protect the health and safety of their staff and prevent the spread of infection are likely to remain static, and the Health and Safety Executive is expected to remain vigilant to ensure Covid-secure practices are strictly observed”.

Can I ask staff who are shielding to return to  work? 

Those shielding can already leave their homes and socialise in groups of six, and by the end of July food and support packages will stop and employers will no longer be able to claim statutory sick pay for them. And as of 1 August, businesses can ask these staff to return to work.

Announcing the changes, Jenny Harries, England’s deputy chief medical officer, said falling infection rates meant it would in theory be safe to send vulnerable people back sooner than August, but an extended period of transition would allow people to adjust: “I think it’s a combination both of having employers that are prepared to share the changes they’ve made in their environment and to reassure [workers] that they are Covid safe, and equally time for individuals to be able to get used to the idea.” 

However, Paul Holcroft, associate director at Croner, warns against employers trying to compel anyone to return against their will, highlighting that employees are protected by law for refusing to come to work if they have a reasonable belief it poses a serious or imminent threat to their health. It falls on the employer to demonstrate the workplace is ‘Covid secure’, he adds: “It is therefore vital that employers follow the available guidance on social distancing and physical adjustments to the workplace, but it will be as crucial to communicate those changes to people who have been shielding to reassure them that the workplace is as risk free as possible.”

What should I do if non-shielding staff refuse to come back? 

There are no simple answers on encouraging reluctant employees back in to work, and employers must avoid a blanket approach. “Employers are going to have to be systematic and really probe into employees’ individual circumstances to understand exactly why and what the reasons [they don’t want to return to work] are so they can work around it,” says Lucy McLynn, head of employment at Bates Wells.

Disciplinaries – the standard pre-coronavirus response to staff not turning up to work – are still an option, but should be approached with caution. “What we’ve got is a relaxation of the employer’s contractual right to insist the employee attend the workplace,” says Trevor Bettany, partner at Charles Russell Speechlys. “In these circumstances it would be unreasonable to force employees [to return to work] and it would infringe other rights of the employee such as health and safety. You have all these different rights and it’s a case of trying to balance them and work out which takes priority in any circumstances.”

Will there be an official date for offices to reopen? 

Unlike for sectors such as construction, non-essential retail and hospitality, the government has not set out an official timetable for a wholesale return of office staff to the workplace. And while it is urging those who can’t work from home to return to work, the guidance still states that “where you can” employees should continue to work from home. But, says Holcroft: “Without any further definition of ‘where you can’, and until the government changes its advice, it will be up to employers that are not barred from operating to set their own parameters on this.” Government advice to work from home “does not create a legal requirement and therefore, arguably, gives employers the ability to determine [themselves] how they navigate this”, he adds. 

But, Holcroft says, if employers do choose to bring workers back to the office before any official guidance on a date for this is released, they must follow existing government advice on making workplaces safe. Failure to do this may entitle employees to refuse to come back, and they would be protected from dismissal or detriment as above, he says. “Employers must continue to put people’s health and safety first and foremost when moving people back to a physical workplace setting, as the risk from infection from Covid-19 remains,” agrees Rachel Suff, senior policy adviser at the CIPD. “They should consider if it’s essential for people to return, as working from home is still by far the safer and preferred option.”

What if the business needs to make redundancies? 

In the event that it is not economically viable to bring workers back, redundancies are still an option. However, employers should be aware that no special allowances will be made on redundancies because of coronavirus. If anything, employers need to be more aware of the challenges that lockdown has created with regard to running a proper process, warns Andrew Crudge, employment and immigration associate at Trethowans.

“Consultation is unlikely to include face-to-face meetings unless they can be accommodated in a safe manner and in line with your risk assessments,” Crudge says. He emphasises that when consultation meetings have to take place over the phone or videoconferencing, “employees have the same rights, including the right to be accompanied to certain meetings”. 

Special attention should be given to communicating redundancies to those on furlough leave, adds Emma Capper, partner at Fieldfisher. Employers should already have specified lines of communication with these workers; if this hasn’t been done there is a risk they might not be checking their work emails regularly, she warns.

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