As lockdown gradually lifts, and the government’s furlough scheme is reduced from August, more and more people will be returning to the workplace. While this is good news for the economy, it opens up a logistical can of worms for employers.
With Covid-19 still looming large, employers have a legal obligation to follow Government guidelines in order to protect the health and safety of their workers. From protective screens and delineated spaces to temperature testing, there’s a lot to think about. So, what exactly does it take to bring employees back to work safely and ensure you remain on the right side of employment law?
We spoke to Adam Wyman, Partner at Travers Smith, and Karen Sanders, another employment law expert and Northants CIPD Committee member for their view.
Keeping employees safe
For employers navigating these unprecedented times, Karen and Adam both agree that there are some clear dos and don’ts which provide a good start point for bringing employees back to work. Here are the fundamental things you need to do in order to uphold your duty of care:
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Complete a Covid risk assessment, take reasonable steps to prevent any harm from occurring in the workplace, and share this information with staff as well as making it visible on your website.
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Encourage any staff who can easily do so to work from home, thereby reducing the number of people in your workplace and making social distancing easier. Help them by making sure they have all the necessary equipment, and ensure that you communicate with them regularly.
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Maintain social distancing as much as possible: use floor tape or other markings to demarcate two-metre areas, create a one-way traffic system through the workplace, put up clear signs to remind employees and visitors to maintain a distance of two metres.
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If it’s not possible to maintain two metre distancing between staff, you need to find other ways to mitigate the risk. This could include erecting screens or barriers, using back-to-back or side-to-side working, staggering departure and arrival times, and creating work bubbles or teams to limit contact.
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Create and clearly communicate hygiene and handwashing procedures. Put up signs encouraging people to follow the NHS guidance on handwashing and hygiene, provide hand sanitiser around the workplace, ensure frequently touched objects and surfaces are regularly disinfected, set clear use and cleaning guidance for toilets.
Employer responsibilities
Bringing employees back to work in the midst of a pandemic is obviously fraught with potential legal pitfalls. Adam is clear: ‘To discharge your duty of care as an employer, you have to show you are taking reasonable steps to implement and adhere to government guidance.’
With so many factors to consider, a good place to start is by being open and communicative with your employees. As Adam says: ‘If you’re asking people to come back to work, making sure they have as much notice as possible is important.’ This will give people time to mentally adjust to the change, and to raise any issues, concerns or objections. It’s also crucial that you engage with them about how you plan to make the workplace safe.
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One of the biggest problems employers face is deciding who comes back and who remains working from home. This decision could be based on the types of roles people have and how efficiently they can do their job at the workplace compared to working from home. You may make these decisions based on risk factors: employees who are older could be considered higher risk, for example.
Who you choose to return will largely depend on the type of business you have, the demographics of your employees, and your particular needs. Either way, you are likely to face refusal from some employees to return to work. Sections 44 and 100 of the Employment Rights Act 1996 protect this right to refuse, without being penalised. So, what do you do if employees are reluctant to come back to the workplace?
Your risk assessment and the health and hygiene procedures you put in place may reassure some people, which is why it’s vital that you follow the basic guidance. However, it’s important to recognise that there may still be some people who won’t feel safe enough to return. Even if you’ve created a safe workplace, what if they’re worried about using public transport? Sections 44 and 100 don’t just cover the workplace, but also their means of getting there.
If you dismiss an employee because of their refusal to return to the workplace, you’re likely to find yourself involved in a tribunal regarding unfair dismissal. It’s salient to note that there is no qualifying period for claiming unfair dismissal and that compensation is uncapped. If you refuse to pay them their wages unless they return, you will also find yourself in contravention of employment law, as their reasoning will be protected by Sections 44 and 100.
“Reassure your staff that their wellbeing is your top priority.”
In truth, all you can do as an employer is everything in your power to reassure your staff that their wellbeing is your top priority. For example, if their concerns are around using public transport, you could let them come in later to avoid peak travel times.
If you engage with your staff and work to create a safe environment, staff members who do return will feel happy and reassured. They may even share this information with colleagues who haven’t returned, reassuring them that the company is doing everything it can to protect them. Conversely, if you don’t take the guidance seriously or find out what people’s concerns are, getting employees to come back may be the least of your worries.
If your employees feel your protocols and measures don’t meet the government guidance, or if they feel unsafe, you could find yourself the subject of a whistleblowing complaint. Of course, the legal ramifications and costs would be one factor to consider, as well as damage to your corporate reputation.
Taking the time (and spending money where needed), to find out how you can allay your employees’ fears and make them feel safe and comfortable won’t guarantee that they’ll be happy to come back, but it will increase the likelihood of this happening.
Communicating with staff
When lockdown began, HR leaders were dealing with a crisis; the response was rapid and focused on damage limitation. Now, with the phased return to the workplace, HR managers are focused on recovery – how they can help their organisations thrive whilst ensuring the safety of employees is the top priority.
The first question has to be, ‘do we have to reopen or can we continue to work as we are now?’ If there isn’t a pressing need to get employees back into the workplace, maybe you don’t need to right now. If the answer is ‘yes’, the next question is one of how you communicate this with employees.
They’re likely to want to know why they should come back. As Karen highlights: ‘If they’ve been productive and happy at home, why should they take even a small risk by returning to the workplace?”
Karen recommends carrying out individual risk assessments to determine whether or not an employee should return. By looking at risk categories including health factors, age, who they live with, whether or not they can access childcare, you can decide how high the risk is for each employee. This is helpful both for you, the employer, and for the employee. If they are anxious or unsure about whether to return, the outcome of the assessment, and the fact that you are taking their wellbeing seriously, could help to reassure them.
The reality is that while we talk of employees returning to work, in truth we are adopting new entirely new ways of working – that’s why planning and communication are crucial.
For example: are people getting the information they need as they come back to the workplace? Are there needs for additional technology or tools to ensure effective communication with staff? Have you told them exactly what you’re planning to do in order to keep them safe? Are you certain they have understood the content?
Karen believes connecting with employees one-on-one is paramount. ‘In such uncertain and heightened times, nothing can be taken for granted. An employee who has been self-isolating for ten weeks and who lives alone may be in a very different mental state than someone who lives with family. The fact is you cannot communicate too much. ‘
“It’s crucial that you directly check in with your staff to find out how they feel.”
Sending communications by message or email doesn’t guarantee that the information has been understood in the way it was intended, so it’s crucial that you directly check in with your staff to find out how they feel and what they think of your plans. One-to-one check-ins with your employees gives them a forum to air their concerns, and allows you to find ways of dealing with any obstacles.
Another key factor is how you will enforce and maintain the new workplace habits and guidelines. Do you have a designated manager who will check that the rules are being followed? Who should employees speak to if they have concerns or suggestions? How do you know the practices in place are working? All of these elements require careful thought, planning, and communication.
Bringing employees back into the workplace is not an easy task. Apart from the practical changes and the ongoing management of those protocols, the biggest obstacle is in managing fear and uncertainty. The key to dealing with this is good communication. Above all else, employees want to feel that their wellbeing comes above profit or convenience. They want to know that their concerns will be heard and taken seriously, and that you’re doing everything possible to keep them safe.
Images via Unsplash and Pixabay
