As an employer, you’ve probably had to make some very tough decisions over the past few months. Many companies have been forced to furlough employees and, in some cases, make redundancies. Now employees are returning to the workplace as per the government guidance, employers continue to face an array of difficult decisions.
This blog provides useful insights for employers, along with some ACAS guidance, to ensure a safe and legal return-to-work strategy for your employees.
Employees returning to the workplace now can return on a part-time basis through a ‘flexible furlough’ arrangement. The Coronavirus Job Retention Scheme is set to finish at the end of October 2020, and funding for employers will start to reduce from August onwards. If you’re an employer that is no longer able to bring employees fully back to work due to financial constraints, you could consider reduced hours. A reduction in staff hours may also help you to manage social distancing measures.
However, it’s important to ensure that when returning to the workplace that employee contracts are not breached through the implementation of such measures. Employers need to give notice when they are ready for people to return to work. You will also need to weigh up how individual roles may need to be adapted to reflect the changing needs of your business. ACAS advises that it’s important to speak to your staff as soon as possible, which includes determining an agreed approach for their return to work and a reasonable notice period.
At the time of writing this article, the government paused shielding advice for vulnerable people, this was effective from 1st August 2020. Employers should take into account local lockdown areas and the guidance specific to them, shielding could be required to continue in these areas. Employers need to find a way of identifying clinically vulnerable employees who may be at risk if exposed to COVID-19. Once identified, employers will then need to implement a specific set of safety measures to protect them.
Returning to the workplace should include an adequate consultation process, which needs to be carried out between the high-risk employee and the employer. All employees should be encouraged to seek advice from either your occupational health team and/or a healthcare professional. If there are concerns that social distancing measures may fall short of protecting clinically vulnerable employees, then it may prove safer to keep these people working from home.
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It is essential that as an employer you are aware that some of the medical conditions that require employees to shield may amount to a disability under the Equality Act 2010. In this case you would be required to consider and make reasonable adjustments. It is essential that managers are trained to ensure no acts of disability discrimination occur. Successful claims for discrimination are uncapped and could cost you a significant amount of money.
The criteria covering high-risk groups is extensive; you may also have employees who express concern and do not fall within this list. ACAS advice states that employees should be encouraged to share their concerns with the aim of finding a resolution. Employers should prepare for the fact that people will be naturally worried and anxious about returning to work.
Health & Safety Obligations
As well as determining which employees you wish to return and on what terms, you will also need to ensure that your work areas are safe. Employers must ensure they have a robust set of safety measures in place for their returning employees. The government has issued guidance entitled ‘5 steps to working safely’, and The HSE (Health and Safety Executive) has also published some useful guidance on coronavirus, which includes how to report COVID-19 using RIDDOR.
- Risk of exposure – employers need to assess their business activities in terms of exposure to the coronavirus and take the appropriate steps to manage such risks. Depending in the industry sector, there will be different levels of risk.
- Hygiene and cleaning – employers must develop stringent cleaning and hygiene processes. This includes installing handwashing facilities and hand sanitisers in high footfall areas and ensuring all touchpoints are considered, e.g. surfaces and objects.
- Social distancing – employers need to maintain 2m social distancing, wherever possible, which should include clear floor markings, posters and signage. Avoid shared workstations, often called ‘hot desks’, and consider a ‘one-way traffic’ approach for employees entering the building and certain work areas. One metre distancing with risk mitigation is permitted where a 2 metre distance is not possible.
Consideration extends to that of the employee’s journey to work if they have to use public transport, how reliable is it, how safe is it?
Other measures, such as desk dividers, barriers and screens may also prove helpful in managing social distancing measures. For further guidance on how to create a safer physical workspace, read our recent blog: Coronavirus: Employees Returning to Work.
Employers are likely to see an increase in flexible working requests, especially where employees have adapted to homeworking or maybe managing additional care responsibilities. Therefore, employers need to ensure they can balance any potential influxes of flexible working requests with the operational needs of the business. In some cases, it may prove more cost-effective for employees to continue to work remotely.
Generally, annual leave will have continued to accrue during lockdown. The government advised that if it has not been reasonably practicable for employees to take annual leave due to the coronavirus, they will be able to carry up to four weeks of statutory annual leave entitlement over to the next two leave years (see Working Time (Coronavirus) (Amendment) Regulations 2020). However, employees will need to manage this carefully to avoid a bottleneck of annual leave requests in the coming year.
As different groups of returning employees will have had varying lockdown experiences, including differences between furlough and redeployment, there will be an increased risk of conflict within the workplace. Therefore, employers need to prepare themselves for possible grievances. For example, if certain groups of people were given bonuses for going to work when others were not given the same option, there could be an increased risk of employers facing further discrimination claims.
ACAS suggests that “employers and managers should take any issues raised by staff seriously” to avoid a minor complaint leading to a potential employment tribunal. Employers need to ensure HR teams act swiftly, following grievance procedures in a timely and sensitive manner. The biggest challenge for employers is the safe and harmonious reintegration of different employee groups back into the workplace.
Both ACAS and the government have issued separate sets of guidance called ‘working safely during coronavirus (COVID-19)’. We advise employers to keep a close eye on the guidance, as it is likely to be continually adapted to meet changing situations.
Would your company benefit from Retained HR Support? We can provide you with ongoing, expert advice on how to plan and deliver a successful strategy for returning employees. Please call us today on 01455 231982 or 07716 91272, or email firstname.lastname@example.org and we will respond as soon as possible.