Businesses may not yet be able to fully open their doors and resume operations as before; however, for some, the light at the end of the tunnel is starting to break through.
While it may still be some time until it’s ‘business as usual’, now that the Coronavirus Job Retention Scheme (CJRS) is up and running and many employers have successfully furloughed their staff, employers may now have the opportunity to pause, regroup, and think about what steps will need to be taken to manage a future return of employees to work. Planning for this now will be critical to a smooth transition; and this isn’t just an issue for HR or employment lawyers – the impact of health and safety and data privacy legislation mean that different colleagues with different responsibilities will need to work closely together to deliver a safe and successful return to work plan.
Here are the top 10 issues for employers to consider.
1. Phased or rotating return
In many cases, a wholesale return of the workforce is unlikely to be appropriate or feasible, and therefore employers will need to consider their strategy for potentially phasing the return of employees on a gradual and/or rotational basis, for example, being in the workplace on a one week in/one week out basis – and how this might be managed in practice. Consideration will need to be given to the continuing absence of any fire wardens and first aiders and how their duties may be covered. Employers should also keep a watching brief on future Government announcements in relation to the CJRS and, in particular, any new proposals which might allow employees to work on a reduced hours basis whilst retaining the ability for employers to claim reimbursement of partial wage costs. As yet, however, there is no suggestion that the Government will take this approach.
2. Social distancing
The Government has issued specific guidance to assist employers in relation to their social distancing obligations, which it is essential that employers heed, particularly where there are significant practical issues around social distancing in the workplace, for example because of the need to be open to customers or for employees to work on production lines, to attend meetings, or to engage in travel. The guidance highlights measures such as the need for 2 metre distancing between individuals and the availability of frequent hand-washing opportunities, as well as consideration of signage and floor markings. Consideration will also need to be given to developing procedures for employees, contractors and visitors to report COVID-19 symptoms.
3. Risk assessments
Employers are subject to a myriad of health and safety laws which must be complied with. At the heart of these legal obligations is a need for employers to be able demonstrate that they have carried out appropriate risk assessments which adequately consider the impact of returning employees to their workplace and which set out how any risks can be managed or reduced. In this regard, producing supporting documentary evidence is likely to be key in case of future challenge or investigation. For those who continue to work at home for a longer period, their health, safety and welfare will need to be reviewed and potentially updated steps taken.
4. Trade union interest
In unionised sectors, employers will need to anticipate significant trade union interest in the management of employees returning to work. Trade unions are likely to require significant reassurance on the health and safety of their members and strive to engage employers in discussions about this and hold them to account in respect of any widespread outspreads of the virus in the workplace. Employers will need to balance the need for constructive discussions with trade unions for the sake of good ongoing employee relations with the need to be able to progress a future reopening of the workplace.
5. Travel to work and business travel
All employees, who usually work from an employer’s business premises, will need to travel to work and this clearly presents potential risks in terms of infection, particularly for those who use public transport as their main or sole means of travel. Employers will need to consider how to address these risks and whether, for example, it could be a reasonable instruction to require employees to avoid public transport. This is likely to depend on how they might support this type of instruction, including in terms of cost and alternative provision.
Many businesses will also employ staff who are normally highly mobile and travel extensively either within the UK or internationally. Alternatives to this travel may need to be explored. Employers should also carefully consider the terms of their business travel insurance to ascertain the scope of the cover provided, particularly in relation to situations such as employees becoming stranded abroad as a result of new future travel restrictions, or becoming ill while outside the UK.
6. Mental health
In recent times, employee mental health and wellbeing has been high on many employers’ people agenda. Now, with the highly publicised impact of COVID-19 on mental health, including in relation to the impact of self-isolation and social distancing on levels of anxiety and stress, there is no doubt that supporting employees in this regard should still be a key priority. Employers should either revisit and recommunicate their strategy for employee assistance or, if considering this issue for the first time, take immediate steps to consider what support they can provide.
Individual absences caused directly, or indirectly, by COVID-19 are likely to continue for some time. This may include individuals who are themselves incapacitated by the virus, those who are vulnerable and shielding, or those who live in a household with a vulnerable person. While there have been legislative changes and Government guidance which set out pay entitlements in these circumstances, employers will need consider how to address the impact of any ongoing absences on the need to cover certain job roles and duties.
8. Review of policies and procedures
While employees with 26 weeks’ service already have the right to request flexible working arrangements within the scope of a statutory regime, employers should now review their flexible working procedures and consider how these might need to be adapted, at least in the short-term, to accommodate future flexible working requests arising out of the COVID-19 crisis. Doing this may allow many employees with caring responsibilities, or who are themselves vulnerable, to return to work in an alternative way when otherwise they may be prevented from returning at all. This may mean moving away from the confines of the statutory regime and, for example, making the ability to request flexible working arrangements open to all, or providing that any changes will be temporary and/or reviewable at regular intervals. Employers should also ensure that they are in a position to manage any requests in a timely way.
Employers should review their existing home-working policies in anticipation that they may not currently address many of the issues arising from the unprecedented business need for home-working as a result of the COVID-19 crisis including, for example, updating any provisions relating to IT and data security, work equipment and health and safety.
Health & safety
Employers should also take the opportunity now to audit and update their health and safety policies and procedures to address, in particular, the issues set out in the Government guidance on social distancing in the workplace (see above).
Performance management and disciplinary processes
During the lockdown period, employers may well have had to place existing performance management and disciplinary processes in abeyance. Steps should be taken now to determine if, and how, these procedures should be revived to ensure that any performance or disciplinary issues are appropriately and effectively managed going forward.
Employers should ensure that any future relaxation of the current social distancing and business closure measures does not lull them into a false sense of security, and should anticipate that those measures may be revisited by the Government should the need arise, for example, as a result of a second spike of COVID-19 infection. Employers should ensure they have a plan in place in case they need to reclose business premises and/or require employees to work from home again. Practical steps will include, for example making sure that employers have the personal contact details of employees so that future communications can be readily achieved.
If not doing so already, employers should now take a proactive approach to the issue of holidays to determine what best meets the needs of their business. While the Government and ACAS have both now confirmed that statutory holiday accrues during furlough, they have also indicated that holiday can be taken during this time (albeit that employers will need, if necessary, to top up any furlough pay to the employee’s normal remuneration in respect of any holiday days taken). Employers should, however, still be cautious about ‘running down’ an employee’s holiday entitlement during the lockdown period, or potentially risk facing future challenge to this approach. This may mean that, on returning to work, employees have a significant number of untaken holiday days remaining. Employers need to decide their approach to this and consider how best to manage, and communicate, this to employees. This will include considering how to accommodate the changes to the Working Time Regulations 1998 which, in certain circumstances, allow up to 4 weeks’ holiday to be carried forward for 2 years. Employers will also need to keep a watching brief on further changes to holiday obligations given that HMRC has specifically indicated that it is keeping the policy on holiday during furlough under review.
10. Redundancy consultation
The unprecedented introduction of the CJRS has, for many employers, staved off an immediate need to consider making redundancies. However, the potential closure of the CJRS is creeping ever closer, with it currently being scheduled to end on 30 June 2020. This means that employers should now be contemplating the ongoing impact of COVID-19 on the future need for employees and, if they consider that redundancies are potentially in scope, they must have regard to their information and consultation obligations. This will include collective consultation where 20 or more redundancies are potentially proposed, with consultation needing to start at least 30 days before the first dismissals take effect, rising to 45 days before where 100 or more redundancies could be involved.
Employers without standing trade union or employees representatives will also need to elect employee representatives to engage in the process, the timing of which also needs to be factored in. The involvement of representatives is also further complicated by the current uncertainty over whether representative duties constitute “work” within the meaning of the CJRS, prohibiting employers from claiming reimbursement of those employees’ wage costs from HMRC.
Employers who would like to aim to manage any collective consultation requirements within the term of the CJRS will therefore need to have these timing issues at the forefront of their mind.