The legalities of preparing for work after lockdown

19 May 2020 By Julian Cox

Julian Cox explains the steps employers should take before bringing employees back into the workplace

With a number of phases set out in the government’s ‘plan to rebuild’, there is growing pressure to restart the economy, safely, as soon as possible. Although numerous guidelines have been revealed based on the type of workplace, businesses should make sure they have a robust plan in place before bringing employees back to work.

Reviewing policies and procedures

It will be vital to review employment policies and procedures to ensure they properly address new workplace practice. Policies that will need updating or introducing include social distancing, dress code if PPE is necessitated, working hours, home working, health and safety procedures, and disciplinary and dismissal (eg, in relation to failure to observe social distancing).

Updating conditions of employment

The measures also propose staggering shift patterns to reduce the number of people coming into contact with each other during the working day, and this could be on either a temporary or permanent basis.

As these measures essentially represent substantive changes to employees’ existing terms and conditions of employment, it is likely they will need to be agreed with staff individually in advance. Simply unilaterally imposing such changes could expose an employer to claims of constructive dismissal should the employee resign as a result. 

Evaluating the workforce

The guidance also identifies ‘vulnerable’ workers, who employers need to give special consideration to in terms of whether it is appropriate they return to the workplace and if so on what terms. Those identified as having protected characteristics, as defined under the Equality Act 2010, are highlighted as requiring particular consideration to avoid them being discriminated against.

A business must tread carefully when changing an employee’s role where they have a protected characteristic, to ensure people aren’t treated less favourably than other employees, for example, on the basis of age or disability.

With a continued emphasis on working from home as a first option, no doubt many employees will argue their role can be performed from home, or that it is not critical to the business as defined by the guidance. They may also express – whether real or perceived – concerns on health and safety grounds, and the prime minister is encouraging workers to report any breaches to the local authority and Health and Safety Executive, which would afford whistleblowing protection.

This is key, and caution is advised at this early stage if considering dismissals for employees who refuse to return on health and safety grounds over concerns that the business is not Covid-19 secure, or related to whistleblowing. These are categorised by employment statute as being automatically unfair, meaning an employee can bring unfair dismissal claims regardless of length of service. 

Businesses might still face the prospect of dismissals to ease financial burdens as they take the first steps towards recovery commercially after lockdown. Where redundancies need to be made, employers must follow proper procedure: use a fair selection criteria, give warning of potential redundancy and enter into a consultation period with the employee individually before notice of termination is given. It is vital to adhere to procedures for employees who have two years’ or more service, as this qualifies them for protection against being unfairly dismissed. Where 20 or more employees are affected, then additional collective consultation obligations are triggered also.

Ensuring health and safety in the workplace

New measures include adhering to the two metre distancing rule wherever possible, reducing hot-desking and installing physical screens where social distancing isn’t possible to make sure the workplace is Covid-19 secure.

All businesses regardless of size will be required to complete a Covid-19 specific risk assessment, which should be in writing for employers with five or more employees and published on the website in the case of companies with 50 or more. A risk assessment will be a vital first step to help decide what measures need to be put in place to ensure a safe working environment for staff.

Given that businesses are going to have to learn to live with the virus for some time, and the anxiety many employees may inevitably feel about returning to work, it’s crucial to plan changes and implement them correctly before encouraging staff to return to the workplace. Reimagining work spaces with the virus at the forefront – perhaps even removing door handles if possible – to comply with government guidance can provide anxious workers with safety reassurances and help prevent a second wave.

The new normal

These new measures mark a substantive shift in how many businesses will need to operate. It’s therefore important to seek advice to ensure you adhere to new (and existing) guidance, provide employees with the necessary protections and navigate the pandemic appropriately – and safely.

Julian Cox is a partner and head of employment in London at BLM

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