Michelle Tudor, senior associate in the employment team discusses some of the practicalities and legal issues that may arise as you bring your workforce back to work.
Hello and welcome to the first Moore Barlow employment law podcast. My name is Michelle Tudor and today I am going to be discussing some of the practicalities and legal issues that may arise as you bring your workforce back to work.
I should start by saying that the government’s message is that people should continue to work from home where possible. However not everyone can work effectively from home for a number of reasons and now is the time to start planning their return to the workplace.
As I said, there are a number of practicalities and legal issues that employers need to think about before staff can return to the workplace. The first consideration, in my opinion, should be health and safety.
Under the Heath and Safety at Work Act 1974, all employers have a legal duty to ensure, as far as is reasonably practicable, the health, safety and welfare of their employees. This duty applies all the time, of course, but Covid-19 poses a particular risk and so a focussed risk assessment needs to be carried out. You should do that now and put it in writing. The risk assessment needs to be kept under review and be adapted as necessary.
Let’s take a moment to look at what you should be covering in your risk assessment. Of course, each risk assessment will be individual to your workplace, but there are five overarching areas that should be covered.
Firstly, you should identify the work activities or situations that might cause transmission of the virus. This will mean looking at your work space.
Are you open plan or do employee have their own office space?
What shared equipment do you provide – printers, photocopiers, filing cupboards
What shared facilities do you offer – bathrooms, kitchen, dining or break out areas
Secondly, you must identify anyone who might be at risk. This will mean your employees, your contractors and visitors to your workplace – clients and customers, couriers and delivery people, cleaners.
You should also identify those who are at a higher risk – those with existing medical conditions, those who have been shielding under the government guidance.
Thirdly, you must consider how likely it is that someone could be exposed to the virus. You should think about controlling the number of people you have in your workplace at any one time.
Where you have identified activities or situations that could spread the virus, you should then look at ways to remove those activities or situations. This could, for example, mean removing certain tasks from an employee’s job description on a short term basis.
Where activities and situations cannot be removed, you must look at ways of controlling the risk. This could mean:
A temporary change to an employee’s job role or duties
Adopting flexible working – allowing different start and end times, staggering rest breaks and lunch breaks
Limiting the number of people who can use the kitchen or break out areas at any one time
Re-arranging your office space and perhaps operating one-way systems around your office to maintain social distancing
Ensuring that your provide enough hygiene facilities – handwash and sanitiser – not just in the bathrooms, but around your office too and especially around shared equipment that will be touched by a lot of people
You should also look at how you keep the office clean, speak to your cleaning company if you use one. There will be a higher standard of cleaning required for your workplace.
One issue you should also think about is how your employees get to work. Although the commute to work is usually regarded as an employee’s responsibility, it can fall within your responsibility if you are requiring an employee to come to work when it is unsafe to do so. This is going to be relevant to any employees who travel to work by public transport, whether by bus or train or tube. Think about whether there is anything you can do to help your employees to minimise any risk of exposure, for example a bike to work scheme, car sharing or making sure staff have masks.
Once you have completed your risk assessment, you should share the results of it with your employees. They need to know that you have considered the risks and have put in place measures to protect their health and safety.
We then move on to some of the practicalities of bringing your employees back to work. It may be that they have been working from home over the last few months or you may have furloughed them under the Job Retention Scheme. In either case, you should start talking to your employees in good time before you want them to return to the workplace.
Communication is going to be important. There may be a number of reasons why returning to work might be difficult – they may have concerns about health and safety, they may have a medical condition that places them at higher risk, they may be children or relatives at home that need care. The reality is that until the schools are back to normal, and until after school clubs and holiday clubs can run and parents can rely on other family members to help, those with childcare responsibilities will be impacted more than others.
It would be sensible, in my view, to invite staff to talk to you about any concerns they have and anything that might stop them from returning to work in the near future. You may need to be flexible in their hours of work or perhaps utilise the flexible furlough scheme for the time being.
Bear in mind that you cannot dismiss, or subject to a detriment, any employee who raises a health and safety concern where they have a reasonable belief in a serious or imminent danger. Similarly, you cannot dismiss, or subject to a detriment, any employee who has to take time off for a dependent, nor can you discriminate against an employee on the grounds of sex, disability or age, amongst others. You should therefore be careful not to jump to an allegation of insubordination or failure to follow a reasonable instruction if an employee refuses to return to work. Such action may be warranted depending on the circumstances, but not without full investigation into the reasons why an employee is reluctant to return to work.
So that concludes this podcast. I hope you have found it useful. Please feel free to give our employment team a call to discuss any of the points I have discussed today and if you have any topics that you would like to hear us talk about, do let us know.
I am an employment and business immigration lawyer. I act for both employers and employees on a wide range of employment and immigration issues that arise during the employment relationship.
I work with employers to ensure that they are managing their staff fairly and lawfully, as a happy workforce not only helps a business succeed and grow, but also prevents managers from being distracted by disputes. I guide my clients on their rights and obligations on issues such as recruitment, disciplinary and capability concerns, discrimination, maternity, paternity and other family friendly rights, business transfers (TUPE), reorganisations and redundancies, and dismissals and exit strategies.
I also work with individuals who find themselves in need of support, for example raising a grievance, defending disciplinary allegations, and following dismissal.
I am an experienced litigator and have represented both employers and individuals at the Employment Tribunal on a variety of legal issues including employment statu