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Coronavirus: making the workplace ‘COVID-19 secure’ for employees returning to work

Posted on 13th May 2020

Following Boris Johnson’s announcement on Sunday 10 May 2020, that workers and employees should return to work if they cannot work from home, there have been many questions on everyone’s mind. These include: ‘is it safe for me to return to work?’; ‘can my employer force me to return to work?’; ‘how do I avoid contracting the virus?’ and many more.

The Government has attempted to reassure the public including workers and employees by publishing guidance for UK employers to ensure that workplaces are ‘COVID secure’. These guidelines aim to help employers get their businesses back up and running and workplaces operating as safely as possible.

The Government has developed practical guidelines in discussion with around 250 businesses. The input has been from firms, unions, industry bodies, Public Health England and Health and Safety England. The aim being to develop best practice on the safest ways of working, providing people with the confidence they need to return to work.

It should be noted that the new guidance aims to cover eight workplace settings that are permitted to open. These include construction sites, factories, outdoor environments and takeaways.

The Business Secretary has said that ‘This guidance provides a framework to get the UK back to work in a way that is safe for everyone. These are practical steps to enable employers to identify risks that Covid-19 creates and to take pragmatic and measures to mitigate them. And as we are able to reopen new sectors of the economy, we will continue our collaborative approach working with a wide range of stakeholders, to provide guidance for additional workplaces.’

The 5 key principles

Businesses are required to focus on 5 key points, which must be implemented as soon as is practical:

1. Work from home, if you can

Employers should take all reasonable steps to help ensure people can work from home. For those individuals whose work cannot be undertaken from home and whose workplace has not been told to close, the Government says its message is clear: ‘you should go to work’.

Individuals have been told that they should speak to their employer about when their workplace will open.

2. Carry out COVID-19 risk assessments, in consultation with workers or trade unions

The guidance operates within current health and safety laws and equality legislation. Employers must carry out Covid-19 risk assessments in consultation with their workers or trade unions, to establish what guidelines to put in place.

If possible employers should publish the results of the risk assessments on their website and it is expected that all businesses with more than 50 employees should do so.

3. Maintain two metres’ social distancing ‘wherever possible’

Employers should re-design workspaces to maintain 2 metre distances between people. Employers should stagger start/finish/break times, create one way systems, and open more entrances and exits, or change seating layouts in break rooms.

4. Where people cannot be two metres apart, manage transmission risk

Where it is not possible for people to maintain a two metre distance, employers should erect barriers in shared spaces, create workplace shift patterns or fixed teams minimising the number of people in contact with one another, or ensuring people are facing away from each other.

5. Reinforcing cleaning processes

Workplaces should be cleaned more frequently, paying close attention to high-contact objects like door handles and keyboards. Employers should provide handwashing facilities or hand sanitisers at entry and exit points.

A downloadable notice is included in the guidance, which employers should display in their workplaces to show their employees, customers and other visitors that they have followed the guidance.

Carolyn Fairburn, Director-General of the CBI has said that ‘Safety is at the heart of business thinking. Unless people feel safe, employees won’t return, customers will stay away and the restart will falter, harming livelihoods and public services. This guidance will help. It gives firms a clearer picture of hoe to reopen safely and gradually.

The guidance builds on the good proactive plans many firms have developed during lockdown. Excellent engagement, fast workplace innovation and transparency have helped many companies support livelihoods. It’s right to build on this.

The UK faces months of change and challenge. These guidelines will need to continue to evolve bases on insight from the ground. And employers, employee representatives and relevant enforcement agencies must work together, supporting these plans to build public trust and get out economy back on its feet.’

The guidance applies to those businesses that are currently open. It also includes guidance for shops which may reopen from 1 June 2020. However it will be kept under review and may be amended over time. It is understood that the Government will develop and publish guidance for those sectors that are not currently open ensuring that they have time to plan. The Government will shortly set up taskforces to develop the safest way for those sectors to reopen.

Despite the published guidance many questions remain. Here are our thoughts on some of those unanswered questions:

FAQs answered by our experts

I’m in the at risk group, will I have to go back to work?

There are many individuals who have received letters from their GP/consultants advising them to not leave their homes for 12 weeks from 23 March 2020 as they have been categorised as high-risk if they catch the virus (clinically extremely vulnerable individuals).

ACAS has advised that those individuals are not currently expected to return to their workplace.

It is also the case that the Government guidance is that employers should be making ‘every effort’ to facilitate home working wherever possible, which translates into a positive obligation so far as the shielded are concerned.

If employers were to insist that the shielded return to work this would likely give rise to a number of potential claims by employees (including constructive dismissal, discrimination and whistleblowing). The shielded are eligible to be furloughed or to be paid Statutory Sick Pay, so this is more likely what employers would do.

For those individuals who have not received a letter asking them to shield, and their workplaces are open but they cannot genuinely work from home, their employers may now ask them to return. The government’s message is clear: “you should go to work”.

However, the guidance also states that “particular attention” should be paid to people who live with clinically extremely vulnerable individuals. This is likely to mean that employers must make every effort to allow these employees to work from home or, if that is not possible, ensure that measures are taken to protect them at work e.g. ensuring social distancing.

This should also be the approach with other at-risk groups too, as there will be many who are clinically vulnerable (just not in the extremely vulnerable shielded group). So this would include those aged 70 or over, those with some underlying health conditions and pregnant women. If they simply cannot work from home, the guidance is that they should be offered the option of the safest available on-site roles i.e. where social distancing can be adhered to. If this is not possible, employers must carefully assess the risk, and it may therefore not be possible to insist on clinically vulnerable employees returning to the workplace in those circumstances.

Those with serious long-term health conditions may be disabled under the Equality Act 2010, so making provision for them to work from home and taking other measures to protect them is likely to be consistent with the duty to make reasonable adjustments. Employers are also under an obligation to suspend pregnant employees on full pay if a suitable and safe role cannot be found for them.

Please note that the guidance on self-isolating still remains in place, so anyone with symptoms of the virus, or who lives with someone with symptoms, should stay at home in accordance with the guidance.

Can my employer insist I come to work if I have to commute on public transport?

This is not an easy question to answer and is not addressed directly in the guidance.

The Government has advised against using public transport, but not outlawed it, and travel companies are working hard to put their own safety measures in place. Also, a staff member’s commute is normally considered outside of the employment relationship so arguably it is the employee’s concern not the employer’s; but these are not normal times.

A reasonable employer should assess this on a case by case basis (what is the risk profile of the individual and the journey they have to make) and where staff are generally heavily reliant on public transport to get to work (in central London for example) then they should try to make arrangements which allow for flexibility around travel times etc.

What steps should employers take to protect the health and safety of their employees in the workplace?

Employers are under a duty in accordance to the Health and Safety at Work etc. Act 1974, to conduct a suitable and sufficient risk assessment of all of the work activities carried out by their employees. Therefore, employers should carry out a risk assessment and take measures to mitigate any risk identified before employees return to work. Employers should review this assessment regularly.

It is a legal requirement for employers to provide employees with specific information about health and safety risks and the measures taken to prevent and protect against those risks.

The recent guidance referred to and outlined above adds to this and employers should carefully review the guidance relevant to their sector/way of working. We have pulled out 5 key points (see above for more detail.

I still have childcare responsibilities at home, can my employer require me to return to work?

Schools are not re-opening on a general basis until 1 June at the earliest, and even then it will be a staged return for primary school, and secondary schools will not return until September. This will leave many employees having to juggle childcare and work.

This is particular issue for those who may now be asked/told by their employers to return to work.

There isn’t any specific guidance about this, but Boris Johnson was asked about this exact issue in his briefing on 11th May. He said that this was a fair and obvious barrier to going back to work “and I’m sure employers would agree with that”.

Quite how this translates into concrete guidance is unclear.

If an employee has childcare responsibilities and is unable to return to work, their employer should have a discussion with them about alternative options (working from home, agreeing reduced hours, furlough, parental leave, time off for dependents, special leave, annual leave etc.)

If your employer is trying to make you come into work and is refusing all the options above, you should point out Boris’ words and that employers should be acting reasonably. You could argue that in forcing you to come to work and refusing any of the solutions that you’ve suggested, they are breaching the implied duty of trust and confidence. Employers should also be mindful of the discrimination risks before taking any form of action.

If I refuse to go back to work can my employer legally sack me?

Normally, it would not be unlawful, in principle, to dismiss an employee for refusing to work, so long an appropriate dismissal procedure was followed. However, is it lawful to dismiss an employee for refusing to work in an unsafe environment (which is the key concern of many employees now facing the prospect of a return to work)? Employers have statutory and common law duties to protect the health and safety of their employees, and there is also now extensive additional guidance they should be following. There is also legislation which gives employees the right, in theory, to refuse to attend work in unsafe environments, as well as providing them with protection from being dismissed or subjected to a detriment as a result. However, what is unclear is what, in the current circumstances, constitutes an unsafe environment, meaning that it would be unlawful for an employer to insist an employee returns? There is no easy answer but employers would be well advised to ensure that they have undertaken a risk assessment and taken reasonable steps to comply with the government guidance and protect the health and safety of their staff, before taking any disciplinary/dismissal action against employees raising these concerns. They would also be well-advised to have consulted with staff and unions in advance and attempted to seek agreement as to a return to work plan and measures to be taken in the workplace.

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