As lockdown restrictions ease, employers across the country are reopening for business and bringing their employees back to work. But what are the main aspects that employers should consider prior to doing this and what issues might they face?
1. Planning from an Employment Perspective
Welfare meetings should be conducted with staff in order to gauge concerns and discuss the steps that will be put in place to enable a safe return when reopening for business. If your employees can work from home, they should continue to do so for now. When risk assessing, it would be wise to consider the necessary steps for those who fall in the following three categories:
- Extremely Vulnerable Individuals – those currently required to stay at home;
- Vulnerable Individuals – not required to stay at home but need to take steps to minimise risk; and
- Those who live with either of the above.
You can find some further information on each category in our guidelines for staff returning to school.
Some employees may be disabled for employment law purposes, therefore, employers should be mindful of this and their duty to consider reasonable adjustments and consider obtaining further advice with regard to this.
2. Employee Concerns when Reopening for Business
Lockdown restrictions have had an impact on many elements of life and there will be some employees who, for various reasons, may be unable to return to work. For example, many families still face difficulties arranging childcare due to their normal childcare settings remaining closed. Some may feel it is not safe or are anxious about returning to work – whether that be due to their commute, working practices, health or even the health of others.
How employers deal with these issues really depends on the situation at hand. Planning for such eventualities is key and employers should consult with their staff in order to identify any concerns.
3. Childcare Issues
If an employee has issues with childcare, this should be explored and monitored with the employee. Alternative options may become available as lockdown measures ease.
There will be situations where an employee does not have any option. In this case, it could fall within emergency unpaid dependant leave, which is an entitlement for unpaid leave to deal with unexpected emergencies. Alternatively, annual leave can be offered as an option, or even parental leave, if the employee wants to apply for this. Employers could also consider using the furlough scheme, but this is not a legal requirement.
4. Refusal to Return on Safety Grounds
Under sections 44 and 100 of the Employment Rights Act 1996, employees are protected from detriment and/or dismissal where they have taken steps to protect themselves and others from being in serious and imminent danger. This legislation was not designed to cover a pandemic situation, so in some ways we are trying to apply precedent law to an unprecedented situation that we are dealing with. There is also very little case law regarding the application of sections 44 and 100 of the Employment Rights Act 1996.
Could the pandemic give rise – in a particular situation – to serious and imminent danger to an employee? Yes, in the writers view it could in the right circumstances. Not least because, in government communications, the wording ‘serious and imminent’ has been used to describe the pandemic. However, whether it is possible for a 22-year-old woman in good health to refuse to return to her location of work on health and safety grounds could be very different from a male in his 60s with asthma. The mortality figures show that males, ethnic minorities and those over 40 are particularly susceptible.
The employee should bring the matter to their employer’s attention and it is worth pointing out that the test is an ‘objective one’. Therefore, a question for an employer to consider is whether the employee’s position is a reasonable one to take.
Employers should also be mindful of the risk of the whistleblowing legislation, which covers disclosures made on health and safety grounds. Employees are likely to have made a protected disclosure, even if their genuine belief about health and safety was wrong. If an employee suffers detriment or dismissal as a result of raising such concerns, they are protected.
5. Health and Safety and Data Protection
Health and Safety and Data Protection are not specific areas of law that we advise on but we can offer some limited general advice. These are worth mentioning, as they should form important considerations for employers when reopening for business.
Employees have a statutory duty under section 2 of the Health and Safety at Work Act 1974 for the health, safety and well-being of their employees. Furthermore, employers have a common law duty of reasonable care. Any safe process is likely to include a risk assessment, setting up a safe system and maintaining it. Following the government guidance is likely to put an employer on good footing, but it is worth remembering that this is guidance and not conclusive that an employer will be acting legally.
For example, although social distancing rules state to keep a 2-metre distance, it could be questionably legal to have people 2 metres and 1cm next to each other for 12 hours in a non-ventilated room. As a warning to employers, it should be made clear that the duty of care is non-delegable. Therefore, in a situation where an employee wants to return to work but it is not safe to do so, you cannot let them take the risk. Also, employers must make sure they enforce the rules they have put in place and take disciplinary action where required.