Our latest update as at 12 May, "Coronavirus: the government has published new guidance on making workplaces safe for employees told they “should go to work” - 10 key takeaways" can be found here.
Although we don’t exactly know when this period of coronavirus lockdown will end, or when the instruction to work from home will be lifted, it is likely that at least some changes to the current state of affairs will happen fairly soon. Indeed, we have been told that the government is working on “workplace by workplace” guidance on how we can safely go back to work, and we expect an announcement of some sort to be made about it on Sunday 10 May.
What is clear is that employers whose workforces have gone largely virtual will now need to consider when and how they will start to move their employees back into the office. To assist with this planning, and in anticipation of more detailed guidance from the government, we have produced a series of frequently asked questions that employers may want to consider.
Although the exact approach taken by employers will need to be tailored to the specific workplace, it is likely that some of the same fundamental concerns will be relevant to everyone, including health and safety, employee privacy, discrimination and flexible working obligations. We consider these further below.
What are our obligations to protect the health and safety of our employees?
- Employers have a duty to look after the health and safety of their employees. This currently comes from two main sources:
1. The Health and Safety at Work etc Act 1974, which provides that:
It shall be the duty of every employer to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all his employees (Section 2(1)).
2. The general duty to take reasonable care of the health and safety of employees and to take reasonable steps to provide a safe workplace and a safe system of work. This duty arises both from case law and is implied into contracts of employment.
- In addition, employers are required to follow any specific regulations and guidance which has been issued by or on behalf of the government and which relate to the coronavirus pandemic, including, for example, new provisions in the Management of Health and Safety at Work Regulations 1999 and the Workplace (Health, Safety and Welfare) Regulations 1992, as well as guidance on social distancing and personal protective equipment etc.
- A failure to comply with health and safety obligations could leave employers exposed to claims by employees. For example, employees could argue that a failure to adequately protect them is a breach of the implied duty of trust and confidence and then resign and claim constructive unfair dismissal. The Employment Rights Act 1996 also provides protection to employees from being dismissed or treated to their detriment if they raise health and safety concerns. Of course, a breach of the Health and Safety at Work etc Act 1974 can also amount to a criminal offence.
What steps should we take to protect the health and safety of our employees in the workplace?
- It goes without saying that the impact of COVID-19 has been unprecedented (a word which has become entirely overused in the last few weeks but is nevertheless still accurate!) and research on how to limit the spread and treat those infected is very much still developing. This understandably makes it difficult for employers to assess and put in place appropriate measures.
- Nevertheless, under the Health and Safety at Work etc Act 1974, employers must conduct a suitable and sufficient risk assessment of all of the work activities carried out by their employees, including homeworkers, to identify hazards and assess the degree of risk. Before any return, therefore, an employer should carry out this assessment and take measures to mitigate any risks identified. This should be reviewed regularly.
- Employers are legally required to provide employees with specific information about health and safety risks and the measures to prevent and protect against those risks. Our view is that, employers should think about further steps they could take to reassure and communicate with employees, for example by setting up employee-led committees or forums to discuss, practically speaking, what measures can be taken. As a minimum, employers should provide a point of contact for employees so they can discuss any concerns.
- If employers are able to agree a safe system of work with staff or staff representatives (including trade unions) that is likely to assist significantly with returning staff to the workplace and defending any claims that the employer is being unreasonable.
- Managing ongoing health and safety risks is likely to include the following:
- Rearranging desks and workstations to ensure that these are at least two metres apart and/or not facing each other.
- Ending hot desk arrangements to avoid staff sharing equipment.
- Limiting the number of people who are in the office at any one time. This could include, for instance, splitting a team in two and requiring each team to attend the office on alternate weeks or swap mid-week.
- Providing face masks for employees to wear and providing information on how they should be used depending on Government guidance on this.
- Using floor markings to mark two metres in areas which employees use frequently, including, for instance, the entrance and exit to the building.
- Allowing employees who travel in on public transport to have more flexible start and finish times to allow them to avoid any rush hour.
- Restricting employees from attending non-essential meetings or work social events.
- Providing an area for employees to go if they are presenting with coronavirus symptoms at work.
- Providing access to handwash, hand sanitiser and reminding employees of the recommended hygiene measures.
- Temporarily closing any common areas where social distancing will be difficult to achieve.
- Increasing deep cleaning of the office, particularly in relation to surfaces that are regularly touched, such as door handles, taps, doors and light switches.
- Employers should also continue to consider how to protect the mental health of their employees and provide guidance to managers on how to assist and when to escalate concerns. For instance, if the employer has an Employee Assistance Programme available this should be highlighted to them and employees should be encouraged to keep in touch with their team members, particularly those who have to remain at home whilst the rest of the workforce is returning.
What about the journey to work?
- There is a debate about whether employers need to consider an employee’s journey when determining if it is safe for an employee to return to work. Clearly employers will have a limited ability to do anything to affect the safety of this, other than perhaps adjusting working hours (as mentioned above). However, our preliminary view is that employers should take into account the risk posed to people by their journeys, particularly if they are in a vulnerable category, when assessing whether it is reasonable to require them to attend work.
- This is likely to be particularly relevant for employers based in cities where many employees use public transport to get to work, which may make social distancing harder to achieve. There is no easy answer here.
Should employers be carrying out health checks on returning workers?
- Some employers might be considering taking steps to assess the health of their employees, for example through temperature checks. This involves consideration of complex medical issues concerning the ability to detect who is carrying the virus based on such information.
- The ICO has put out guidance on what to consider regarding testing when returning to work, but it does not go so far as providing a justification for tests in itself (and indeed raises concerns about the intrusiveness of temperature checks).
- It is hoped that, at least, very clear guidance from Government will be given about what is effective and required. This is important not just for employee safety, but also because it is a critical question to address when, inevitably, the employer will be gathering health related data about its employees.
What additional measures are required in relation to employee privacy if health checks are carried out?
- There is a view that data privacy laws such as The General Data Protection Regulation (GDPR) and the UK Data Protection Act 2018 (DPA) might hinder the use of health-related data in responding to the crisis, but this is a misperception.
- What is required is a thorough and documented review of the steps that are proposed to be taken and how the impact on the privacy of employees (and others) can be minimised in that context. This is called a Data Privacy Impact Assessment (DPIA) - a process which should be familiar to most HR departments. The starting point is to ask what the basis for gathering and using this health data is, remembering that in an employment context employees are generally considered to be incapable of giving valid consent. Usefully, GDPR and DPA allow use of this data on other grounds provided that it can be shown that this is necessary. This is why very clear guidance from Government would be helpful in demonstrating this necessity – it will provide employers with the basis to say that what they are doing is justified.
- The DPA also requires the employer to have an appropriate policy document in place covering this, setting out how the employer complies with the law. HR departments should have this already if they are processing special category data like health-related data for employment purposes, (including compliance with employment law obligations - like health and safety legislation), but it may need updating to deal specifically with COVID-19.
- However, this is not the end of the requirements to ensure compliance with data protection laws and regulations. The employer must explain very clearly to employees what it is doing with their data and why (this is called “transparency”). This goes hand-in-hand with the employer’s obligation referred to earlier to provide employees with specific information about risks to their health and safety, the measures which are introduced to prevent and protect against those risks and the employer’s safety procedures.
- The employer should also ensure the data is stored very securely and is only accessible by those who need to know, with consideration given to whether it could be partially anonymised. And the data should only be kept for as long as is strictly necessary for the purposes for which it was gathered. Employers should also be careful if they are using someone else to gather and store the data (perhaps a private provider of medical services). Appropriate data sharing contracts should be put in place with these organisations to address the same issues, eg security, access rights, retention, and limiting what can be done with the data.
- Though it is not directly analogous, the Information Commissioner’s views on contact tracing technology has some useful guidance on the issues to consider. See here.
What can an employer do about clinically extremely vulnerable employees?
- Doctors have identified that people with certain medical conditions may be at greatest risk of severe illness from coronavirus (described by the government as “clinically extremely vulnerable”) and these people have been notified by letter that they are in this group. The government in its guidance has advised that clinically extremely vulnerable people should “shield” – ie stay at home and not leave the house - until the end of June (although this may be extended).
- It is likely to be a breach of an employer’s health and safety duty if an employer insists that such individuals return to the workplace at any time when the government’s shielding guidance remains in place. Moreover, since individuals in this group are likely to be classified as disabled given their medical condition, it may also be disability discrimination for an employer to insist on their return or treat them to their detriment if they refuse.
- This does not mean, however, that an employer will be expected to maintain these employees on full pay if they are unable to work from home. People in this category are entitled to statutory sick pay if they are unable to work while shielding (for more information on this, see here). They may also be entitled to enhanced sick pay depending on the terms of their contract.
- Employers may also need to consider what to do about employees who live with someone who is clinically extremely vulnerable. Employees in this group may argue that requiring them to travel and attend the workplace risks putting the extremely vulnerable person they live with at an increased risk of coronavirus. Employers will need to carry out a suitable risk assessment to determine the extent of the risk and whether steps can be taken to reduce it.
What can an employer do about other categories of “vulnerable” employees?
- In addition to extremely vulnerable employees, the government identified other groups of individuals who may also be vulnerable to coronavirus – these include those over 70, those under 70 with underlying health conditions, and those who are pregnant. Interestingly, the government’s guidance which set out these categories has now been withdrawn (though a copy can still be found here), but it would still be advisable for employers to give consideration to how they support these individuals.
- Individuals who were described as “vulnerable” were not advised to shield in the same way as those who are clinically extremely vulnerable. However, employers should acknowledge that they may potentially be at greater risk than other employees. Moreover, people with underlying health conditions may be disabled and so protected under the Equality Act. Similarly, employers will have discrimination and health and safety obligations in relation to pregnant employees, and the Equality and Human Rights Commission has recently published guidance on Coronavirus guidance for employers: Your duties on pregnancy and maternity.
- Employers should carry out a specific risk assessment in relation to any individuals in these groups. It may be advisable to seek medical or occupational health input into this, to ensure that employers are fully aware of the potential risks involved and what steps can be taken to reduce them.
What can an employer do if an employee who is not vulnerable refuses to come into work?
- There is then likely to be a category of people who are reluctant to return to the office, potentially because they think it is unsafe for them to do so, or possibly because they have (understandably) enjoyed not commuting all this time and simply prefer to continue to work from home. Employers will clearly need to have a conversation with employees to try to get to the bottom of their concerns.
- If employees have concerns about returning to the office because of a medical condition, employers should ensure that a risk assessment is carried out with medical input before seeking to force them to return to the office. It is possible that the individuals will be disabled under the Equality Act, and so entitled to reasonable adjustments, one of which may be working from him during this time.
- Similarly, it is possible that the impact of coronavirus and lockdown may have caused some otherwise healthy people to suffer genuine anxiety or depression, which may affect how they feel about returning to work. Conversations will obviously need to be handled sensitively with these individuals, not least because of the potential disability discrimination risk. Again, reasonable adjustments may be required.
- For other employees who refuse to attend to work, in theory, an employer might be able to take disciplinary action or withhold pay as a result – for example, for a failure to follow a reasonable management instruction to come into the office. However, employers will want to explore the matter very carefully before taking such a step and consider any wider employee relations (and indeed external reputation issues) before taking what may be considered a hard line.
- In particular, an employer will need to satisfy itself that it has taken all reasonable steps to make the office as safe as possible, as set out above (including assessing whether there is any discrimination risk or risks under current public health advice). It will be easier for employers to establish this is not the case if it has agreed with employee representatives that it has taken reasonable steps to create a safe place to work.
- This is particularly important as an employee can allege that any dismissal on the basis that they reasonably refused to attend work is automatically unfair (and employees do not need to have two years’ continuous service to bring this claim). Moreover, employees could argue that any concerns they have raised in relation to health and safety in the workplace is a protected disclosure for the purposes of whistleblowing protection, and the employee should, therefore, be protected against any detriment or dismissal on the basis that they have raised that disclosure.
- There could also be damage to an employer’s reputation if this is not handled well.
What should an employer do if employees are unable to return to work because of childcare responsibilities?
- If an employee is unable to return to work due to childcare responsibilities or their attendance is sporadic due to childcare issues, employers should have a discussion with the employee to work out next steps and to discuss the options available to the employee. Before any action is taken, employers should also be mindful of the discrimination risks (for example, on the basis that women are still more likely to have childcare responsibilities).
- Employers should check what the employee’s contract or any employee policies state in respect of unpaid time off for emergencies and parental leave. Employees have a statutory right to unpaid time off for emergencies, which is likely to include school or nursery closures. This is only a right to “reasonable” time off to deal with the situation and is not an indefinite right to unpaid leave (but of course lockdown was not contemplated when the rules were put in place). There is also a separate right for parents to take unpaid parental leave, which is limited to four weeks per year, up to a maximum of 18 weeks in total.
How should an employer deal with increased requests to work from home on a permanent basis?
- The shift to homeworking during lockdown will undoubtedly change how employers can deal with formal flexible working requests in the future and this period of lockdown is likely to result in some employees considering their options going forward. Employees with at least 26 weeks of continuous employment can make a request for flexible working under the statutory scheme for any reason. Moreover, employers have a duty to make reasonable adjustments to make sure workers with disabilities are not substantially disadvantaged.
- When considering requests to work from home on a more permanent rather than ad hoc basis, an employer should think about its duties in terms of process when receiving formal flexible working requests and follow the timelines and particular statutory reasons it can give for refusing a formal request.
- During the unprecedented lockdown period, employers have found new and innovative ways of working remotely and have in many cases demonstrated that it is possible to maintain business continuity and client service with a virtual workforce. This will inevitably impact whether an employer can effectively argue when rejecting a request to work from home more in future that there is a legitimate business need for the employee to be in the office. Therefore, it is important that requests are properly considered and any analysis as to whether the arrangement would work is clearly documented.
- Moreover, a further risk to consider is whether the employee will allege that they are being discriminated against under the Equality Act 2010 if the request is rejected. For instance, a rejection of a request to work from home could be found to be indirectly discriminatory on the basis of sex, directly discriminatory on the basis of sex or could constitute a failure to implement as a reasonable adjustment under the Equality Act 2010. An employee could also in theory allege that an unreasonable refusal of a request to work from home is a breach of the implied duty of trust and confidence by the employer and resign in response to this breach, claiming constructive unfair dismissal.
How should an employer deal with holiday requests and cancellations?
- An employer’s approach to holiday is likely to depend on how much work there is in the pipeline. If, even after lockdown restrictions are lifted, workload is low, employers may want to consider preventing employees from cancelling their previously approved holiday to ensure employees are available later in the holiday year when workload may increase.
- Also, whilst employees are going to be reluctant to take holiday whilst travel restrictions remain in force, an employer can also require employees to take leave, subject to it complying with the legal requirements under the Working Time Regulations/any procedure set out in a collective agreement or contract of employment. The basic position is that an employer must give the employee notice of at least twice as many days as the number of days the employee needs to take.
- If an employer is looking to cancel already approved leave that an employee has booked, for example because work levels have potentially increased, it should check any relevant provisions in the contract of employment or any employee policy. The basic position under the Working Time Regulations is that an employer needs to give as many days’ notice as the period of holiday to which the employee has booked. However, employers should be mindful of various issues before taking this step, including health and safety obligations in ensuring that employees have reasonable breaks, and the risk that employees may argue they should be compensated for holiday cancellation charges (if there are any at this time of travel restrictions) etc.
How does an employer deal with day to day HR issues when some of the workforce is in the workplace and others are still working from home?
- Whilst it is tempting to delay investigations, performance management and disciplinary processes until employees are back in the workplace, we would generally not recommend this unless there is a specific reason. Please see our previous article on the reasons why it might be appropriate to continue with these processes and how investigations can continue to accommodate remote working. The same principles are likely to apply to other processes which employers may find themselves facing, including redundancies and consulting about changing terms and conditions.
We appreciate that this is a stressful and worrying time for our readers (and for so many), and we do hope that you find the guidance contained in this blog useful. If you are interested in formally engaging the firm and require further tailored advice in relation to what is covered, please contact Kathleen Heycock, Ian De Freitas, or your usual contact at the firm on +44 (0)20 3375 7000.
Please note that our Employment team is currently experiencing a very high volume of queries in light of the COVID-19 outbreak, which unfortunately means that we are unlikely to be able to respond to informal queries of a more general nature, given the need to prioritise urgent queries from existing or new clients. We hope this blog is, however, helpful in addressing some of those more general queries.
This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.
© Farrer & Co LLP, May 2020