In August 2020, the U.K. government told employers that they could ask employees working from home to return to work, subject to compliance with health and safety obligations. In September, it reversed this position and employees were told to work from home where possible. Such reversals are likely to continue, and businesses will have to remain alert to the range of workplace challenges they face. Although the general issues facing employers are likely to be similar across the working world, this article will address the rules and guidance applied in England.
Health and Safety
The nature of a business’ health and safety measures will vary depending on the context of its operations, but now all businesses will have to enforce social distancing measures and ensure work environments are “COVID-secure.”
It is an employer's duty to do whatever is “reasonably practicable” to protect their workers’ health and safety of their workers and any third parties affected by the business, such as members of the public or contractors. The extent of that duty is also informed by the level of control over workspaces. For example, an employer may have dual responsibility with an office building’s management with respect to shared spaces such as elevators or access ways.
Risk Assessments
Employers must conduct a suitable and sufficient risk assessment of all the work-related activities their employees carry out, including those working from home, to identify any risks and assess their severity.
What qualifies as “suitable and sufficient” may change based on the circumstances, including place of work and the level of risk posed by COVID-19, which is anticipated to fluctuate at least in the short- to medium-term. To assist employers, the U.K. government created an online tool to help carry out a COVID-19 risk assessment and to identify needed workplace adjustments. The Department of Business has also published 14 guides to making workplaces “COVID-secure,” covering a range of different English workplaces.
Employers should document all risk assessments, subsequent mitigation measures and the rationale underpinning those measures to reassure workers and to demonstrate compliance. The government expects businesses with over 50 employees to share the results of their risk assessment with its workforce and publish them online, and all employers regardless of size are encouraged to do the same.
Consultation
Engagement with the workforce is key to inspiring trust and generating buy-in with any related instruction or training. This is particularly important when workers are likely to be feeling anxious about returning to work and are looking for reassurance.
At the outset, employers should review any agreements with any trade union or employee representatives to see if they must formally consult about return to work proposals. The Advisory, Conciliation and Arbitration Service (ACAS) has published a Coronavirus (COVID-19): Advice for Employers and Employees guide, suggesting that it is good practice to solicit and consider workers’ views on these plans, particularly from fire wardens or health and safety representatives, to flush out any specific issues. Given the changing nature of the risks associated with COVID-19, consultation should be ongoing.
Cleaning and Hygiene Procedures
Following a comprehensive risk assessment, companies should develop clear, accessible and tailored guidance on workplace and personal hygiene. Employers are encouraged to provide hand sanitizer, frequently clean and disinfect surfaces and introduce enhanced cleaning for busier and communal areas. On July 24, 2020, face coverings became mandatory for indoor settings, although current guidance does not extend to wearing face coverings in offices.
Employers should encourage workers to report any contact with people with symptoms of COVID-19 and support workers who self-isolate when needed. But employers cannot generally compel workers to divulge personal information about potential COVID-19 contact or to take temperature tests, given the data protection and contractual issues associated with such requirements. However, employers can instruct employees who have COVID-19 symptoms or live with someone who does not to come to work, and discipline employees if they then do so.
Support Working from Home
Where employees are required or permitted to work from home, employers should adequately support them. This may include providing adequate equipment and taking reasonable steps to safeguard the physical and mental well-being of workers. Employers should be mindful of their continuing health and safety legal obligations, including undertaking a risk assessment, and their general obligation to provide a safe place of work. They should also, so far as is reasonably practicable, attempt to ensure workers’ welfare, health and safety, such as by monitoring work and stress levels.
Discrimination Issues
Employers should look at each home worker’s particular needs to ensure that they comply with any obligations they have towards that individual. For example, in the United Kingdom, if a home worker has a disability, providing equipment (or reimbursing the worker's equipment expenses) or allowing them to continue to work from home may all be required as reasonable adjustments under the Equality Act 2010.
U.K. employers must not make decisions because of an employee’s protected characteristic, as this would be direct discrimination, which, except in some cases of age discrimination, can never be objectively justified. For example, employers freezing hires of job applicants from the United States or China because of their national origin or prohibiting older employees from returning to work would be acts of direct discrimination.
Furthermore, employers, as part of their risk assessments, should consider whether health and safety measures result in treating certain people less favorably, as, without objective justification, this could be indirect workplace discrimination. For example, staggering work start times to reduce COVID-19 transmission risk may disproportionately impact women who have childcare responsibilities. As there is no cap on compensation for successful discrimination claims, employers should be particularly cautious with any criteria, provisions and practices that could be discriminatory and always consider less discriminatory measures as part of the risk assessment.
As the economic fallout of COVID-19 unfolds, employers may consider restructuring, which might involve layoffs. One particular area of concern may be how furloughed staff are incorporated in the layoff process. Selection criteria must be fair and objective, and dismissing employees because they have been furloughed at any point between March and October, is unlikely to be fair. Depending on the reason for being furloughed, it could also be direct or indirect discrimination.
Suspending penalties for failing to report on gender pay disparity for 2019 and 2020 for U.K. employers with 250 or more employees and postponing it to 2021 was a welcome relief for businesses during the height of the pandemic. However, pay inequities are anticipated to remain under the spotlight and employers should maintain any momentum achieved in reducing the pay gap.
Data Security
Working from home presents data security risks. Many employers want homeworkers to use only the employer's computer equipment to ensure compatibility with the employer's systems and to ensure adequate virus protection and security measures. Employees will need to keep confidential information secure when working from home, just as they would when in the office. Employers should remind workers of these obligations and consider reviewing and updating their information management and data protection guidelines.
Managing Transmission Risk
Employers should implement social distancing measures, including the “one meter plus” rule or using floor tape to mark out one to two-meter distances, implementing one-way systems around the workplace, limiting use of shared workspaces and encouraging in-person meetings by appointment only. Each workplace will have different challenges, but some of the suggested measures also include staggering working hours to avoid public transport at peak times (and encouraging walking or cycling to work), increasing the number of entrances and exits to avoid congestion, and reducing any unnecessary contact by promoting alternatives to face to face meetings.
Flexibility
The anticipated fluctuations in the COVID-19 infection rate and associated health and commercial risks requires employers to be dynamic in their response planning, perhaps well into the medium- and long-term. The COVID-19 crisis is likely to have issues for some workers like childcare and taking extra precautions to protect at-risk people (called “shielding” in the United Kingdom), which may cause an increase in formal and informal requests for flexible or part-time working arrangements.
Keeping Records
The COVID-19 Secure Guidelines (Working Safely) were revised on July 3, 2020 to address situations where a localized outbreak has been identified. In response to such an outbreak, employers will be asked to record details of symptomatic workers to assist the NHS Test and Trace Service in England with identifying contacts. Employers that rely on workers adhering to certain shifts, such as factories and construction sites, should also maintain records of staff shift patterns for the same period. Employers are therefore advised to ensure that all their worker contact details and employment records are updated.
Concerns and Refusals to Return to Work
Workers may worry about their own elevated risk from COVID-19 if they have underlying health conditions, are managing childcare responsibilities, or are shielding. ACAS recommended that employers talk to employees who are concerned about returning to work and the proposed mitigation measures to try to collaboratively reduce anxieties early on. Employers can decide whether to maintain certain employees and workers on furlough, agree to part-time work or allow them to take either paid or unpaid leave. However, employers are not obliged to do so, and any response would be a commercial and contractual decision.
Employers should also be prepared for an increase in formal grievances around returning to workplaces and may face tough decisions about how to deal with workers who, despite reassurance and additional safety measures, still refuse to return to work. Ultimately, workers who unreasonably refuse to return to work may face disciplinary action, up to and including dismissal. Employers must exercise care in invoking disciplinary procedures in all circumstances, as COVID-19 will be a contextual factor in determining whether an employer’s response was reasonable.
Lessons from the U.K. Response
The principal takeaways from the United Kingdom for employers navigating the current crisis include:
- Dynamic thinking. The public health crisis is changing all the time, which is a significant challenge to employers. Managing employees through the crisis and mitigating business risk will require dynamic thinking and resilience.
- Assessing levels of risk. Undertaking constant reviews of local guidance is key to tailoring a company’s response, including keeping on top of any legislative guidance while mitigating the risks of possible fines, employee sickness or reputational damage.
- Consulting with employees. Communicating changes and adapting those changes to consider employees’ needs is important to generate buy-in of workplace measures relating to COVID-19. Safety adherence and employee loyalty will serve employers well during the medium- to long-term.
- Focused investment. As businesses roll back unnecessary expenses, this may seem counterintuitive, but businesses must on focus on smart investments, including data security, employee well-being and to address wider inequalities in the workplace.