Planning for the “new normal” post lockdown – what are the legal implications for employers?

It has been widely reported that Government guidance on the easing of the lockdown for employers is imminent, consisting of seven different guidance notes aimed at seven different areas of the UK’s workforce: hotel and restaurant staff, those who work in other people’s homes, factory workers, people working outdoors, people working in vehicles, shop workers, and office workers.

Although the relaxation of lockdown is the discussion topic of the day, the actuality of it is causing anxiety for both employers and employees as they try to navigate not just a short term, crisis-based normality, but also what the work world might look like for months and years to come. The reality is that this will be very different for each industry, workplace, employer and employee, and each situation must be looked at individually.

That said, on the understanding that the need to keep employees safe will primarily dictate what happens next, there are three main areas employers should now be focussing on:

• Initial strategy and planning for a return to the workplace
• How to approach selecting which employees should return and when
• The practical detail of implementing health and safety and facilities measures

Each of these areas has different and various employment law implications. Below we set out an initial checklist to help you to formulate your plan of action and/or check the steps you have already taken.

Initial strategy and planning

Some employers will continue to operate primarily on a remote working basis in the short-term at least – indeed it is likely that those who can work from home will be required to continue to do so. However, for those employers who are bringing workers back into their place of work, there are a number of steps that should be followed to keep them safe, and also to reassure them.

From a compliance perspective, all employers have a legal duty to protect the health and safety of their workforce. But, whilst the underlying legal obligations remain the same, this crisis redefines what safety means in the workplace. You will want to reassure employees of the measures that have been put in place to keep them and their colleagues safe.

There are four keys steps:

• Read and apply the relevant Government guidance when published
• Prepare a detailed risk assessment setting out the decisions you have taken from a health and safety perspective and why
• Consider the employment law implications of any changes that you implement
• Support and train staff on the new procedures on their return to work

Risk assessment - In order to manage the health and safety of employees (or others coming into contact with a business), employers are expected to identify and control any risks within the workplace. It is already a legal requirement for all employers to undertake risk assessments, and if they employ more than five people, the assessment must be recorded in a written document.

A risk assessment is typically carried out by a trained health and safety professional and, although there is no single prescribed way to complete one, the Health & Safety Executive (“HSE”) provides guidance on best practice, including templates. In particular, the HSE states that in order for a risk assessment to be “suitable and sufficient”, it should show that: a proper check was made; the employer asked who might be affected; the employer dealt with all the obvious significant hazards, taking into account the number of people who could be involved; the precautions taken are reasonable, and the remaining risk is low; and the employer involved its employees or their representatives in the process. There are specific requirements and certain necessary control measures where employees are young persons (under 18), pregnant workers, migrant workers or workers with disabilities. An employer will need to show that any risk to these specific categories of employees has been addressed.

Employers are already required to keep risk assessments under review and to consider undertaking new risk assessments where a change occurs affecting the suitability of the previous assessment or if a new risk emerges - and it is highly likely that the current risk posed by COVID-19 would itself be a triggering event in this respect. Further, following extensive lobbying by trade unions, we are expecting the Government guidance expressly to mandate coronavirus-specific risk assessments. Accordingly, you should plan to undertake a full risk assessment before permitting your staff to return to work. To comply with your legal obligations you will then need to implement the actions arising from the risk assessment and monitor compliance with it.

Implementing necessary changes - Having carried out a detailed risk assessment, employers should then analyse the changes they are planning to implement from an employment law perspective. In particular, do any proposed changes to the working environment and working practices constitute variations to terms and conditions of employment, or are they just changes to workplace policy?

If the Government legislated to dictate how workplaces must operate, this would make any changes required easier to impose on the workforce. However, current indications are that the Government will simply issue guidance. Additionally, some potential changes will be at the discretion of the employer.

Matters such as changes to working hours, changing or introducing new shift patterns, requiring employees to use annual leave and new places of work may well amount to changes to contractual terms. If so, employee consent will need to be sought, and hopefully will be forthcoming given the circumstances – but if not, and particularly where the changes are more controversial, the usual issues in relation to imposing variations of contract will arise. If there is a disagreement about a change to terms and conditions which affects 20 or more individuals, then this may trigger collective consultation obligations. For this reason, if you foresee having to make any significant contractual variations, you may wish to involve trade unions or employee representatives in your discussions at an early stage.

Changes to policy matters ought to be easier to implement. This might include changes to facilities and their use, such as the introduction of hygiene and social distancing measures, the use of PPE, and new policies on internal and external meetings. Nonetheless, these matters will still require clear documentation and communication, consistent with the workplace’s culture and also with an aim of reassuring staff. As the situation will continue to change, communications should be kept up to date. For example, if any of your employees are “key workers” who can now avail themselves of coronavirus testing, and/or if more widespread coronavirus testing becomes available, you may wish to issue specific guidance around this. Any policy should also clearly set out the sanction for non-compliance. Finally, the business leadership will need to fully buy into the new policies, and adhere to them, to set the correct tone from the top.

Staged returns to work and selection

Discrimination risk - Decisions about who should return to the workplace and when give rise to potential employment law risks, especially where the employer only requires some members of a particular team or department to return to work initially. If your decisions can be shown to be driven by discrimination against those who have protected characteristics, or to adversely impact such workers, then they may be able to bring discrimination claims (although defences may be available).

Examples may include:

• Disability protection for employees who are shielding, or are vulnerable. Those caring for them may allege associative disability discrimination.
• Sex discrimination may arise in relation to the treatment of carers.
• Age may be a factor where the age of the workforce is a selection criterion.

To mitigate these risks, ensure that your decisions are driven first by what is required or allowed by the Government guidance, and then by business-need led selection criteria. By starting from this point, you will be able to establish a business reason to justify your decisions, which should at least be a defence to a direct discrimination claim. Whilst a requirement to return to the workplace may also give rise to indirect discrimination claims, this risk can be mitigated by identifying potential “returnees” and “remainers” and then engaging in a dialogue with them as to whether their initial selection gives rise to problems and, if so, why.

Employers’ natural inclination to look after their employees should be carefully managed in this scenario. Whilst the Government guidance is expected to provide for specific protections for shielded “extremely vulnerable” and non-shielded “vulnerable” people, outside of that a benign motive, for example a presumption that those with children may prefer to work from home, is not a defence to a discrimination claim. A selection process based on or including an employer’s perception of what certain employees would want to do risks being discriminatory where it involves a protected characteristic, however good the intentions.

Employers will also need to consider what approach they will take if someone is unable to or simply refuses to return to work: for example, would they agree to continued remote working on a temporary/permanent basis, would other changes be necessary (for example, reduced pay) if that were the case, or would it be a redundancy or even a disciplinary situation?

Volunteers - One option is to ask for volunteers to return to the workplace, or to stay working from home. The obvious disadvantage with this approach is that the people who volunteer may not align with business needs. As with voluntary redundancies, employers don’t have to accept applications, but they should ensure their reasons for refusing are not tainted with any discrimination.

Business-need led selection - If a business-need led selection process is required, consider objective selection criteria in a similar way to a redundancy programme. To mitigate discrimination risks, when communicating with employees make it clear (where possible) that there is also a dialogue to be had and that there is flexibility for those who cannot return.

Note that if an employee’s reason for not returning to work is that they are not satisfied with the health and safety measures the employer has in place, they may benefit from additional protections. These may include protection from disability discrimination if they have a disability, and/or protection because they have raised a health and safety concern or otherwise “blown the whistle”. Prior to lockdown the HSE saw a large increase in health and safety complaints, and it is likely we will see a similar increase of these type of claims in the employment context.

Permanent change to remote working for some? - If you are now envisaging a longer-term period of working from home, you may need to obtain agreement from the relevant employees to this change to their contractual place of work (see above). You should also consider revamping your agile working policy to make it more consistent with a larger number of people working from home either long-term or permanently.

Bringing some employees back from furlough - Whilst the decision as to when to “un-furlough” will largely be driven by business need, it is particularly important that employers are prepared with a carefully thought through strategy so that any process of selection is conducted as fairly and as objectively as possible (see above).

Particular issues may arise if the employer is not topping up employees’ pay to 100%, such that those chosen to come off furlough leave will return to normal pay and benefits sooner than those who do not. However, conversely some employees may prefer to remain at home on leave and in receipt of up to 80% of their usual pay rather than travel to and attend their workplace if doing so makes them feel unsafe.

Although the Coronavirus Job Retention Scheme does not envisage minimum notice periods, we recommend that employers give furloughed staff reasonable advance notice that they are required to return to work, and indeed many furlough agreements provide for a specific period of notice to be given.

Health and safety and facilities measures – the detail

Employer’s actions will usually be driven by the desire to protect their employees’ health and safety whilst operating their businesses as efficiently and economically as possible. Here are some examples of measures to consider to enable this:

Requirement to self-report health vulnerabilities/virus infection/virus exposure – An employer will need carefully to navigate its existing health and safety obligations and any new obligations to require employees to provide certain information about their health where there is a return to the workplace. We await the detailed Government guidance, but it is possible that those with underlying health vulnerabilities (individually or within their families) may, depending on the particular workplace, be required to disclose them to their employer. It may also be mandatory to self-report virus infection and/or exposure to the virus. Even if not, as long as these measures are introduced for health and safety reasons, they should be reasonable requirements to place on employees.

However, other issues flow from these sorts of measures, such as when would it be reasonable to tell other employees about an individual’s infection by the virus or exposure to it? Particularly given that health information is “sensitive” or “special category” personal data, a difficult balancing exercise between the need to protect the health and safety of the workforce and the right to privacy of the individual will need to be struck. Also what sanction will apply where an individual does not comply with the self-reporting obligations? Will you encourage employees to report others’ failure to self-report? Compliance with self-reporting and similar measures may well be a Government-backed requirement on employees. Therefore, a failure to comply is wrongdoing, and likely to amount to fairly serious wrongdoing. As with any other wrongdoing, employees could be encouraged to report it using the employer’s existing whistle blowing mechanism or via other access points.

Personal data obtained through self-reporting should be treated in accordance with the GDPR and the Data Protection Act in the same way as any other data relating to employees’ health, including ensuring minimum retention and security of the data. Employees will need reassurance that this will be the case to support a self-reporting regime.

Temperature testing/virus testing - There is currently no requirement for employers to conduct any testing of their employees. However, increasingly the focus is turning to testing as a means of combatting the virus, albeit it is currently voluntary.

Without Government sanction, employee consent would be required either to take their temperature or to conduct full virus testing. If an employee refused, the employer could potentially take disciplinary action, provided the contract or policy wording clearly stated that it may do so in the circumstances and provided the employer was satisfied that the request to undertake the test was necessary from a health and safety perspective and not disproportionate in the circumstances.

As the results of any such tests would be “special category” personal data, an employer should carry out a data protection impact assessment (“DPIA”) before introducing any temperature checks or other tests. Essentially this requires the employer to carry out a proportionality test, to strike a reasonable balance between the individual’s legitimate expectation of privacy and the employer’s interests, by identifying a legitimate purpose for the monitoring. While it is likely that the legitimate purposes of the public interest and protecting the vital interests of the data subject would apply, depending on the workplace there may be less intrusive ways of monitoring which make taking individuals’ temperatures or other testing disproportionate. For example, having a clear policy of self-reporting on Coronavirus symptoms might adequately address the issue. The employer would have a stronger case for taking the temperature of an individual with other Coronavirus symptoms.

As with self-reporting data, employers should ensure that the minimum data relating to the test outcomes is retained and that appropriate security measures are in place.

Wearing of PPE/masks - Current UK Government guidance does not require employers outside health and social care settings to provide any PPE as a matter of course. Whilst controversial amongst some members of the public, Government and Public Health England guidance remains, at the time of writing, that use of face masks outside clinical and care settings is not required. However, this may change when the guidance is published.

The Scottish Government has recently changed its position on the use of facial coverings, issuing guidance recommending that individuals wear facial coverings in public, although this is only advisory and is not a legal requirement.

As there are at least currently no mandatory requirements to provide or use PPE or masks, this will be a matter of policy for each employer. A decision by an employer not to provide them in certain workplaces will need to be carefully documented in the employer’s risk assessment, to demonstrate due regard to the health and safety of the workforce. A requirement on employees to use or wear them will equally need to be clearly documented, including any sanctions for failure to do so, and again the business leadership will need to ensure they abide scrupulously by the policy.

Requirement on employees to use a tracking app (if available) - Tracking apps are likely to be controversial given the privacy issues they may give rise to, and absent the Government making it mandatory, it is difficult to see how an employer could impose or police their use. Were their use to be made mandatory, similar issues as those which arise in relation to self-reporting will attach to the data the app contains, especially where it is on an employer-owned device. Employers should also plan for increased staff absence due to the app instructing individuals to self-isolate although this will be less of an issue where remote working is possible.

Adherence to enhanced hygiene requirements – Employers will need to consider hygiene hot spots, for example how to deal with kitchens, communal food places and, coffee machines. Will these be closed down? Should employees be encouraged to bring all food/drinks from home? How will you ensure there are regular breaks for handwashing and access to hand sanitisers? Will hot-desking and sharing of equipment, even stationary, be appropriate, and what cleaning will need to be implemented? Again, policies relating to this will need to be clearly set out along with any sanctions for non-compliance.

Re-configuration of the workplace and/or restricted attendance at the workplace/in parts of the workplace - The Public Health England (“PHE”) guidance currently states “workplaces should make every effort to comply with the social distancing guidelines set out by the government… where the social distancing guidelines cannot be followed in full in relation to a particular activity, businesses should consider whether that activity needs to continue for the business to operate, and, if so, take all the mitigating actions possible to reduce the risk of transmission between their staff.”

The Scottish Government has already released guidance entitled “COVID-19 – A Framework for Decision Making” which emphasises that any transition back to work will need to include social distancing and increased hygiene. That guidance states that further guidance will be issued to businesses in advance of re-opening.

Measures which may need to be taken include restricted access to the workplace for some (which will mean a continuation of remote working), restricted access to parts of the workplace for example the canteen or the lifts, constraints on face to face meetings or other interactions, and the use of floor markings to facilitate social distancing and screens to create physical barriers. There will be many logistical and cost-related considerations, but from an employment law perspective:

• Will the restrictions involve changes to terms and conditions – for example to working hours, days in workplace, or access to facilities which are part of contractual benefits? If so, you will need employee consent or to impose the changes (see above).
• If not, what will be required to document these measures clearly in a policy?

Travel to work - There will equally be many safety, logistical and cost-related issues concerning requiring people to travel to work, but from an employment law perspective, exactly the same issues will apply - will the restrictions involve changes to terms and conditions, and if not what policy documentation will be required?

Other business travel is likely to continue to be discouraged for a while, so you will need to have a clear policy on this also.

Our Chinese colleagues tell us the main area of concern for employees returning to work there has been maintaining social distancing particularly when travelling to and from work.

Mental health issues – Many employers have put in place additional mental health support during lockdown. Thought should equally be given to supporting employees who may already be feeling vulnerable through the next period of uncertainty and change.

We will update you when the Government guidance is published. We are also holding a webinar on 14 May 2020 at 12 noon to discuss these issues. Click here to register. In the meantime, do not hesitate to contact your normal contact in the employment team to discuss any of the above.