The Government’s approach in instructing the lockdown to deal with Covid-19 was concise – Stay Home, Protect the NHS, Save Lives. That simplicity of message has meant a substantially better take up of the rules than may have been expected, but the next steps will be much harder. The plan to lift the lockdown cannot be so simple, as it cannot be such an “all in/all out” approach. It will necessarily need different messages for different groups.

However important – and it is of course vital – the need to protect lives, the bringing back to life of an almost moribund economy is also going to be essential. We will not rehearse here the balance of different views as to the heightened risks of keeping the economy shuttered, as it is (luckily) not a legal issue. The re-opening of individual’s lives and businesses to get us back towards normality will have to be done at some point.

With no real information available at the moment, we can only look at what the existing law requires of employers and hazard some educated guesses as to what employers will need to do in relation specifically to Covid-19 and the re-opening of businesses.

The initial Government guidance put out to Unions and other organisations for consultation has attracted criticism for being too vague and leaving too much discretion on the employer. As well as being unappealing to the Unions, that may be unattractive to employers as it leaves them open to challenge and liability if their approach is not comfortable to employees.

The robust direction with binding requirements (rather than advice) that is being asked for by the TUC may be ideal; however, given the need to act quickly, it seems relatively unlikely that such specific direction will be available immediately.

There would seem to be at least 4 key areas that every business must be aware of in regard to its next steps: employment law, HR relations, health and safety obligations and data protection.

Here are a few key areas that we believe every employer will need to consider:

Is the business on the list of those required to be closed?

  • Many businesses that have closed were not in the situation of being required to close. Those that have decided to close anyway have done so for different reasons, such as the need to take time to put in place appropriate social distancing protections.
  • The first step must therefore be to check whether there is freedom to choose to open, if not required by law to close.

Can your employees adequately work from home?

  • This still remains a key consideration, as the current Guidance requires those that can work from home to do so. There has been much public discussion as to whether the work must be essential to be undertaken under the Guidance, but this does not seem to be the requirement. It is the need to travel to work that is the appropriate test.

Can you require an employee to return to work?

  • There is evidence that a large number of people remain worried about Covid-19, and it must therefore be assumed that some will be reluctant to leave the safety of their homes to return to work. On the assumption that you have complied with all guidance and legal requirements, what can be done in respect of a refusing or reluctant employee?
  • HR relations will be key, and discussion and persuasion with your employees will normally be better than instruction and direction.
  • Do listen to the concerns of your employees and discuss these with them. There may be solutions that can be found in that way.
  • You need to understand whether the employee has reasonable grounds to be resistant/refuse to return, or whether the problem is one of a “worried well”. For those employees on furlough, particularly those on topped up pay, there seems little incentive to risk their health to return to work. The ending of the CJRS funding furlough leave will no doubt focus many employees’ (and employers) minds, but it will remain a hurdle to some employers in getting employees back whilst it continues.
  • If you have to take a tougher line with employees, the approach must be considered on a case by case, fact-driven basis. For example, disciplining someone for refusing to come to work when working from home is a viable alternative would seem unreasonable in the current climate. However, the employee that must work in the business premises is in a different situation, but may be someone who is vulnerable, or is caring/sharing a home with someone who is vulnerable. Always check the real facts in each employees situation carefully.
  • Ultimately, the employee is required to be ready, willing and able to work and if they aren’t, the right to withhold pay may be an appropriate sanction. Moving from that position to a dismissal would also be a step that must be taken with great caution. It can be expected that Tribunals will have sympathy with employees struggling with the consequences of Covid-19 and therefore the reasonableness and appropriateness of the employer’s actions will presumably be considered in great detail.

What claims may flow from employees in regard to return to work issues? Recent events and the management of the return (or non-return) of employees to the workplace, could set employers up for a variety of employment-related claims, all of which employers will need to watch out for. These could include:

  • unlawful deduction from wages claims (if there was no effective agreement to furlough or reduce wages)
  • unfair dismissal, including for reasons due to an unfair selection for redundancy
  • claims for protective awards due to a failure to consult (over 20 or more redundancies or potentially in respect of the implementation of significant changes to terms)
  • constructive unfair dismissal, arising, for example, from claims for breach of trust and confidence through the employer not adopting appropriate safety measures in the office
  • disability discrimination, arising, for example, by an employer not making reasonable adjustments in response to Covid-19
  • detriment or unfair dismissal claims based on health and safety issues
  • whistleblowing, such as claims against an employer who has not followed the furlough rules, etc.
  • Employers should take account of these possible claims when dealing with the return and management of all or part of the workforce

What are the health and safety obligations on arranging return to work?

  • Health and safety legal requirements are detailed and specific, and by its very nature, this note does not begin to cover the detail of this area. Specific advice must be sought. However, a simple approach to considering the obligations is that an employer must do everything reasonably practicable to ensure the health and safety of its employees and ensure that it doesn’t expose non-employees to dangers
  • A risk assessment of appropriate risks, so as to allow the business to eliminate or reduce these risks as far as reasonably practicable, is key
  • A breach of health and safety obligations can lead to a criminal sanction, as well as claims by employees, for which there is no qualifying period of service
  • As part of the risk assessment process, consider matters such as the Government Guidance (e.g. can you open?), risks in the business environment (such as can you implement social distancing?) and risks in the context of travel to work
  • As well as the risk assessment, create a Covid-19 protocol and communicate this clearly to your employees
  • Consider how to distribute this, given the fact that you can’t call a townhall meeting. Ask for feedback and consult and consider your employees thoughts and issues
  • Undertaking a risk assessment is important – but so is documenting it and recording the steps undertaken
  • Given the lack of clarity in the Government’s current approach, the thought processes that have been used in developing a risk assessment and protocol will be important in helping to provide protection for a business’ decisions, if challenged by an employee or authority.

Do you have any data protection issues, given the protocol you adopt?

  • If, for example, you want to require every employee to tell you if they have any symptoms, consider whether you have appropriately covered this storage and use of personal data as part of your privacy notice. This may be an appropriate time to review your privacy notices to ensure that you have this covered.

On a separate data protection note, the author lives on the Isle of Wight and will provide an update on the NHS app, once this has been released for us to act as the test bed!

If you have any queries on the subject of this note, any other employment or other matter, please let us know by contacting your usual Clark Holt contact.