Decrees, orders or guidelines in effect and pertaining to reopening facilities.
The ‘COVID-19 Secure’ guidelines apply to different workplaces and are intended to ensure that workplaces (and those working in them) are as safe as possible during the coronavirus pandemic. The 8 sector-focussed guidelines, which are all broadly based on the same key themes, impose significant responsibility on employers to ensure individuals are able to return to a safe workplace and system of work. The 5 steps to working safely guide sets out practical actions for businesses to take, in conjunction with the COVID-19 Secure guidelines relevant to their workplace.
Optimal approach to keep track of the latest updates.
Government subsidies and special relief resources allocated to support employers, and workers, in their efforts to maintain employment and pull through the crisis.
The UK Government has implemented several measures, which employers may be able to access for financial business support including: making claims for wages through the Coronavirus Job Retention Scheme (currently for up to 80% of employees’ wages plus any employer National Insurance and pension contributions, if they are on furlough leave because of COVID-19); delaying VAT and some other tax payments without incurring a penalty; claiming back employees’ coronavirus-related Statutory Sick Pay through the Coronavirus Statutory Sick Pay Rebate Scheme; state-backed bailout loans for both SMEs (small and medium sized businesses) and for large businesses. Business rates relief and grant funds are available for certain businesses and sectors – these are handled differently in England, Scotland, Wales and Northern Ireland.
Requirements mandated by law or any official guidance.
Employers are under a legal duty “so far as is reasonably practicable” to provide and maintain safe places of work, safe systems of work and adequate facilities for welfare, and to provide employees with sufficient information and training. The law requires employers to:
- undertake a risk assessment;
- set up safe systems of work, informed by their risk assessment;
- implement those safe systems of work;
- keep those systems under review.
The government has issued guidance to assist employers with their legal duties on how to run your business safely during the Coronavirus pandemic. Employers should follow the steps set out in the relevant guidance for their workplaces, taking into account the size and type of their business – but this does not replace existing health and safety law. In addition, compliance with the guidance is not a “safe harbour” and employers may still be liable at common law for negligence and/or breach of the health and safety legislation.
Measures typically implemented by employers and the associated legal risks, limitations, obligations and issues to consider.
Some employers are nominating an individual who is responsible for monitoring and ensuring compliance with COVID-19 rules and regulations. Employers are also consulting with employee representatives/a health and safety committee on safety issues. Where social distancing requirements cannot be achieved in the workplace, employers are taking steps to manage transmission risk – making physical workplace modifications (e.g. putting barriers in shared spaces) and adopting other measures to minimise the number of contacts each employee has (e.g. creating workplace shift patterns or fixed teams). In addition to providing training on the new workplace procedures, employers are communicating clearly on safety issues to ensure employees understand what is required and that they feel safe. Once the safety procedures are in place, employers must monitor to check that the workforce is complying with the safety rules, and intervene quickly if workers are not acting appropriately.
Many employers are exploring temperature checks, antibody testing and the use of contact tracing apps, but these raise significant privacy issues. The Information Commissioner’s Office has published workplace testing guidance which recommends that organisations planning to undertake testing and processing health information should carry out a data protection impact assessment focussing on the new areas of risk, and should only retain the minimum amount of information necessary.
Policies and procedures for telework once the business reopens.
Businesses are expected to ensure people work from home if at all possible, and to take all reasonable steps to support teleworking. Employers have the same health and safety obligations to employees working from home as those in the workplace. Employers should:
- ensure employees have the right equipment (such as remote access to work systems), that relevant guidance is followed, and provide online health and safety training modules designed for working from home – for those working at home on a long-term basis, the risks associated with using display screen equipment must be controlled ,which includes undertaking workstation assessments at home;
- discuss homeworking best practices, and have a homeworking policy – with advice on matters such as screen positioning, taking breaks from display screens and identifying risks – that is communicated to staff;
- look after employees’ physical and mental wellbeing by keeping in regular contact with staff on their working arrangements, and their welfare and personal security;
- include employees in all necessary communications, and help them stay connected to the rest of the workforce.
Employers should also be mindful of data security considerations that arise. In addition to personal data security issues, there are wider categories of information risk, such as in relation to confidential information and trade secrets.
Management of quarantine, childcare and medical leave for employees affected by COVID-19.
Unless they are well and able to work from home, employees will be entitled to Statutory Sick Pay (and may also be entitled to the employer’s company sick leave and pay) if they are:
- sick and diagnosed with coronavirus, or have coronavirus symptoms;
- self-isolating because a member of their household has coronavirus symptoms, or on an official instruction, because they have been in contact with someone who has tested positive with coronavirus;
- shielding because they are classed as extremely vulnerable and were notified they should follow the shielding measures.
There are a few options available for employees who need to care for a dependant who is sick or children who are unable to go to school. Employees who are unable to work because they have caring responsibilities resulting from COVID-19 can be furloughed under the Coronavirus Job Retention Scheme. The other options would involve employees taking unpaid leave, such as dependant’s leave (they can take a “reasonable” amount of time off when pre-arranged care for a dependant has unexpectedly become disrupted or terminated) or employees with at least one year’s continuous service could take parental leave (they can take up to 4 weeks’ leave in a year, in blocks of a week).
Employees who fear infection and refuse to work.
If the employee is able to work from home then they should do so and be paid in full. If they cannot, the issue should be treated carefully. There may be health and safety reasons for employees not wanting to attend the workplace, such as a confirmed case of the virus or they have genuine health concerns which make them more vulnerable, or they live with vulnerable family members. From an employment law perspective, failure to obey reasonable and lawful management instructions is a breach of contract. Therefore, unless the employee has a good reason not to attend the workplace, an employer would be entitled to discipline the employee for refusing to attend, and might also be entitled to withhold wages.
Disclosure of employees who are infected.
Employers should keep staff informed about cases and infection risk in the organisation, but in most cases it will not be necessary to name the individual, and their identity should not be disclosed. Employers should not provide more information than necessary – they should simply inform staff that an employee has the virus and that appropriate precautions should be taken. This is because information about an employee’s health is a ‘special category personal data’ and it can only be processed, including by being disclosed, in restricted circumstances.
As pregnant women have been “strongly advised” to socially isolate, avoid travelling on public transport and work from home where possible, employers should allow pregnant women to work from home if possible. Where the nature of their role means that they cannot work from home and there is no suitable alternative work available that they could do from home, the employer should consider medically suspending the employee on full pay.
To what extent can employers implement the following cost-reduction strategies as a result of COVID-19, and what are the primary limitations on each?
The Government Coronavirus Job Retention Scheme has enabled employers to place employees on furlough and claim up to 80% of their salary up to £2,500 per month as a grant. When the amount that can be claimed under the Scheme is reduced from August onwards, then ultimately removed on 31 October 2020, employers may consider extending furlough on a self-funded basis, which is possible provided employees agree to being furloughed. If they will be on reduced pay, you will need a new furlough agreement which they may be willing to agree to as an alternative to redundancy.
If the employer has a contractual right to lay off without pay, this could be relied on, but you should consult with employees and give them reasonable notice of lay off.
- Salary reductions.
Employers can reduce pay with the employee’s agreement which should be evidenced in writing. Alternatively, if you recognise a trade union for collective bargaining purposes, you may be able to agree to the change with the union. If the employer has already formulated a proposal to dismiss as redundant, or to force change by dismissing and re-engaging, any employees who do not agree to a salary reduction, then collective consultation obligations are arguably triggered.
- Redundancy, including facility closure.
There must be a genuine redundancy situation, i.e. a reduction or cessation in the requirement for employees to carry out work of a particular kind, or a need to shut down all or part of the business in which the employee works. Alternatives to compulsory redundancy should be explored first (including seeking volunteers for redundancy, seeking agreement to staff working on reduced hours and/or reduced salaries on a temporary basis).
If an employer is proposing to dismiss 20 or more employees at one establishment within a 90 day period, the collective consultation obligations will be triggered: consultation with employee representatives must commence at least 30 days (for between 20 and 99 dismissals) or 45 days (for 100 or more dismissals) before the first dismissal is proposed to take effect. Whether or not collective consultation is required, employers will also need to engage in consultation on an individual basis with employees at risk of redundancy.
Tips, recommendations and common pitfalls.
Most health and safety policies and practices will need to be amended to reflect the approach to controlling the risks presented by COVID-19. Workers should be involved in assessing workplace risks and in the development and review of workplace health and safety policies in partnership with the employer. Other policies that may need updating include sickness, disciplinary and grievance, travel, homeworking and Bring Your Own Device policies. To avoid discrimination and equality issues arising out of return to work plans, employers must be mindful of the particular needs of different groups of workers and individuals, and must ensure that their plans do not disadvantage certain protected groups or individuals with a protected characteristic.