This update will focus on the issues behind welcoming staff back to the workplace.
The starting point for this is the recent report, where only one-third (34%) of UK white-collar employees have gone back to work, lagging far behind their European counterparts, where almost three-quarters of staff (68%) have done so, according to analysis from US bank Morgan Stanley’s research unit AlphaWise.
While it is not clear if the UK’s slower return to the office could be related to the earlier impositions of lockdown and subsequent easing of restrictions in the other European countries used as comparators, many businesses have cited uncertainty about asking their employees to use public transport and the need for childcare during school summer holidays as reasons not to end remote working before September at the earliest.
Here are some issues that have come up and that we think employers should consider before the welcome back….
What about the work environment itself?
Official government guidance on this (Guidance) is set out in one of 14 guides covering a range of different types of work, including a guide for “people who work in or run offices, contact centres and similar indoor environments”.
The key take away is that “Working from home remains one way to do this. However, the risk of transmission can be substantially reduced if COVID-19 secure guidelines are followed closely.”
The Guidance requires employers to carry out a risk assessment and the starting point for an employer should be to:
- Identify what aspects of their workplace and working practices could result in the transmission of COVID-19
- Decide how likely it is that a person would contract COVID-19 in the workplace and
- Identify what reasonably practicable action could be be undertaken to minimise the risks identified.
This all has to be done while recognising that it is not possible to eliminate the risk of COVID-19 completely. Any risk assessment carried out by an employer must then be shared with their workforce. Please also note that any employers with more than 50 employees should also publish the risk assessment on their website.
What about my existing HR policies – do I need to change them or introduce new ones?
Given how the working environment has changed as a result of the pandemic, all employers should consider carefully whether their existing HR and H&S policies are adequate to deal with the new environment.
Areas to consider would include:
- Home working;
- Flexible working, – there may be an increase in requests;
- Dependants’ leave, with a view to any possible further school closures in the future;
- Sickness absence, with possible reference to self-isolation and associated pay;
- Annual leave, focussing on quarantine requirements and any allowed carry-over of annual leave entitlement;
- Stress and mental health – looking at employee anxiety and remote working; and
- The staff privacy notice and data protection policy given the possible additional processing of personal data in relation to COVID-19 such as, when discussing their concerns about returning to the office, informing the employer of medical conditions, pregnancies or relationships with or information about household members. Employers who implement testing programmes will obtain special category data from the test results, and the information and contact details obtained for NHS Test and Trace will also constitute personal data.
Training in relation to the above policy and process changes would also need thinking about too.
Employers should review any disaster recovery plan and further policies/procedures in terms of reacting to a local COVID-19 outbreak, the requirements to test and self-isolate, notification from NHS Test and Trace and any guidelines on what staff need to do to comply with COVID-19 measures in the workplace. This may also need to consider the position outside the workplace as well.
The Guidance also provides that employers must consult with staff in a meaningful way when planning to return to the workplace, requiring “an open conversation about returning to the workplace before any decision to return has been made.”
Employers also have a legal duty to consult employees in good time on matters relating to their health and safety at work, in particular about the introduction of any measures at the workplace that may affect the health and safety of employees. This includes measures in relation to COVID-19.
Employers should consult individually with members of staff about their return to the workplace to consider any uncertainties they have about precautions in place to make the workplace COVID-19 secure plus any individual circumstances, such as the journey to work, caring responsibilities, and if the person falls within a higher risk category. If an employer has a recognised trade union, the employer must consult with the health and safety representative selected by that union. If there is no recognised union, the Guidance states that employers should consult with a representative chosen by the workforce.
The other risk to consider is that the arrangements put in place to reduce the risk of transmission of COVID-19 may expose the workforce to other risks. As an example, even with reduced physical presence in the office and minimal face-to-face contact, adequate security must remain in place to protect staff. It is important to make sure that the health and safety of their workforce is not compromised by, for example, making sure that there are sufficient numbers of appropriately trained fire wardens and first aiders present in the office at all times (and that appropriate personal protective equipment is available for these individuals). It should be assessed as to how to conduct fire drills and other safety and security training exercises without exposing staff to undue risk of contracting COVID-19.
What about the people who are more vulnerable to COVID-19?
The Guidance does alert employers to groups of people may be at more risk of being infected and/or suffering an adverse outcome if infected.
These groups include those who:
- Have a high body mass index (BMI)
- Are older males
- Have health conditions such as diabetes (these individuals and those who are pregnant or aged 70 or over are also referred to as being clinically vulnerable)
- Are from some Black, Asian or minority ethnic (BAME) backgrounds
Employers are therefore advised to consider this in their risk assessment.
Clinically extremely vulnerable individuals (i.e. those who were advised to shield) may return to their workplace provided that COVID-19 secure guidelines are in place. However, the Guidance is still that such individuals should work from home wherever possible and attention should also be paid to people who live with clinically extremely vulnerable individuals
If extremely clinically vulnerable individuals cannot work from home, then they should be offered the option of the safest available on-site roles, enabling them to maintain social distancing. It can be appropriate for clinically extremely vulnerable individuals to be offered an alternative role or adjusted working patterns temporarily.
Employers should also consider those with protected characteristics, including, for example, employees who are pregnant. They are entitled to suspension on full pay if suitable roles cannot be found. Employers may also need to consider if reasonable adjustments are necessary for any disabled employees.
What are my responsibilities in relation to visitors?
All employers have a legal responsibility to protect the health and safety of not only workers and employees, but also visitors and other third parties that attend the workplace, such as clients or customers.
It is vital to clearly communicate to everyone attending the workplace the health and safety measures in place to reduce the risk of transmission of COVID-19. This could include emailing written guidelines in advance and also displaying posters at the entrance and in other visible areas within the workplace.
What do I need to think about for employees who are continuing to work remotely?
As part of the risk assessments referred to above, employers should consider:
- how to continue to keep in touch with a remote workforce;
- how to provide support for employees’ mental health as some individuals find long term working from home an isolating experience;
- making sure that their employees have a safe working environment at home which could include providing additional equipment to those who will be working from home on a long-term basis.
Conclusion
As we start to look at the return to work, the importance of getting this right and managing it in accordance with both the national and local working environment cannot be overestimated. Our employment specialist Lucy Churchill (https://www.spiresolicitors.co.uk/our-people/lucy-churchill/) would be happy to help and has a wide range of employment and HR experience providing strategic advice and support to employers on a wide range of contentious and non-contentious employment law issues.
Please drop Lucy or me an e mail or call if you need any further details and stay safe and well.
Roger
