Employers are now turning their minds to the many and varied issues they need to consider when planning for the end of lockdown - even though of course they will need to wait for details of the precise timing and phasing of the relaxation of lockdown restrictions to emerge before finalising their plans. In this OnPoint we consider some of the legal and practical issues concerning their employees which employers will need to consider ahead of the phasing out of lockdown.
In addition to any further restructuring and cost cutting that may be necessary, issues that employers will need to consider ahead of the end of lockdown include:
- compliance with Government guidance and requirements in relation to the working environment.
- the process of employees returning to the workplace from remote working.
- demand for holiday following lockdown.
- ongoing remuneration arrangements.
Employers will need to ensure that they are compliant with Government guidance - as it is updated - on social distancing in the workplace and the measures they are expected to take to deal with managing the risk of transmission of the COVID-19 virus. A detailed action and communication plan will be essential.
The Government's existing guidance to employers makes various recommendations including:
- reminding staff to follow social distancing advice and wash their hands regularly.
- encouraging digital and remote rather than paper transfers of material.
- additional pop-up handwashing stations or facilities.
where possible, using floor markings to encourage staff to keep 2 metres apart.
- where it is not possible for them to remain 2 metres apart, staff working side by side, or facing away from each other, rather than face to face.
- where face-to-face contact is essential, this being kept to 15 minutes or less wherever possible as much as possible.
- locating teams of workers together and keeping teams as small as possible.
It may also be necessary to change working arrangements and workplace layouts in relation to open plan working, hotdesking and office sharing as well as controlling the number of attendees at and location of meetings.
Employers will also need to take account of any requirements imposed by their landlords in relation to entry into and exit from the relevant buildings, use of lifts etc.
Employers will need to conduct appropriate risk assessments in relation to their premises and working conditions, as part of which it may be determined that vulnerable employees should continue to work remotely.
Vigilance will still be needed to ensure that, even after return to the workplace is permitted, those who display COVID-19 symptoms (or who have been in contact with those displaying symptoms) do not come into work and those who develop symptoms while at work are dealt with appropriately. Appropriate communication and monitoring will be necessary.
Facemasks and testing
As yet there is no requirement that people should wear facemasks or other Personal Protective Equipment (except in certain specific healthcare related situations) although the Government’s guidance should be kept under review. Employees may wish to wear facemasks of their own volition and employers may find it difficult in many situations – and indeed may not wish - to object to this. If employers do require PPE to be worn, they should provide it along with training on how to use and dispose of it effectively.
Other measures which employers may consider implementing (although there is currently no requirement to do so) are testing for COVID-19, symptoms screening, and body temperature testing on attendance at work. However, these steps will give rise to data protection and other issues on which specific advice should be sought.
Employers will wish to communicate clearly to employees their expectations and requirements with regard to social distancing and other measures implemented to deal with COVID-19 and compliance with Government guidance and requirements.
It may be appropriate to require employees to confirm when they return to the workplace that they are aware of, have understood and will abide by the arrangements put in place by the employer.
The consequences of failure to comply should be made clear and cases of breach dealt with appropriately and consistently under the employer’s disciplinary procedure.
Employers may wish to establish a confidential process for the anonymous reporting of breaches of the employer’s policies and unsafe workplace practices (if one is not already in place).
Implementing the process of return from remote working
Employers will need to consider how to return staff from remote working on a phased basis and a variety of factors will need to be taken into account including:
- operational and business need.
- the need to limit the number of staff attending work at any one time to comply with Government guidance and requirements both in relation to social distancing in the workplace and the use of public transport.
- employees’ personal circumstances - particularly in relation to childcare and caring responsibilities and travel arrangements.
- engaging with and providing appropriate ongoing support to employees.
Taking staff off furlough
An employer wishing to bring some but not all staff back to work while the Coronavirus Job Retention Scheme remains operational will need to ensure that it does so on a fair and objective basis to avoid grievances - or even constructive dismissal or discrimination complaints - especially if the employer has not topped up pay beyond the reimbursement available under the Scheme and returning to work will therefore enable the employee to resume full earnings.
As partial return to work takes an employee outside the scope of the Scheme, an employer that does not need all staff to return to normal working patterns may wish to consider rotating furlough arrangements across groups of employees - as is permitted under the scheme after the initial minimum required three week period of furlough.
If the Government’s Coronavirus Job Retention Scheme is extended on a tapering basis allowing for partial work and partial reimbursement of wage costs, then resource planning will need to take that option into account.
Staggered return to and attendance at work
Employers will need to determine which employees are essential to ensure the workplace is operational and therefore need to return to the workplace at an early stage. Greater flexibility will be possible for those who can continue with remote working.
Employers that need to limit the number of staff attending work at any one time will wish to consider arrangements such as alternating/mixing the days on which employees or particular groups of employees work remotely and employees’ starting and finishing times.
Rota arrangements will need to be devised and applied appropriately. Consultation and /or agreement may be needed with employees to the extent that any such variations to working hours are not permitted under the employees’ contracts of employment.
In devising a return to work schedule and attendance at work rota, employers will need to decide whether and how to gather information as to employees’ preferences and specific concerns as well as whether the process should entail seeking volunteers for early return.
It may be appropriate for employers to encourage staff where possible to change their travel arrangements in accordance with Government guidance - for example, to walk or cycle to work if possible or avoid public transport or certain times of travel. It may be necessary to consider whether employees who have long and unavoidable journeys to work should continue to work remotely. Limitations on business travel and meetings are highly likely to need to be continued.
Continued flexible and home working
Their experience of remote working during the COVID-19 crisis may lead employers and employees to wish to continue with remote working arrangements. Dialogue with employees about making longer term arrangements for flexible and home working may be appropriate and employers may wish to update their policies on these issues.
Employers need in any event to be mindful of the statutory right which those employees with at least 26 weeks' continuous employment have to make a flexible working request, for any reason, entailing a change to the employee’s working hours, times and/or place of work – as well as the fact that constructive dismissal and discrimination issues can arise from badly handled responses to requests for continued home, remote or flexible working.
Employers should not lose sight of the need for appropriate risk assessments in relation to home working arrangements, to ensure that appropriate protections remain in place in relation to issues such as business confidentiality, data protection and the like and to ensure that homeworking remains as effective as possible.
Employers who collect information about employees’ personal circumstances and health situation in the context of the return to the workplace will need to ensure that such personal data is processed in accordance with the GDPR. To the extent that the data being collected relates to employees’ health – such as body temperature and coronavirus symptoms – it will constitute “special category data” under the GDPR.
Employers will therefore need to assess the lawful basis for processing the information sought, carry out an impact assessment balancing the reasons for processing such information against the rights of the individual, record their conclusions and review their privacy notices to check that they cover the data in question and update them where necessary.
Employee support and engagement
The COVID-19 pandemic has led to various challenges for the mental health and wellbeing of employees. Employees may have found enforced homeworking to have presented considerable challenges, whether by way of isolation, increased childcare or otherwise. Return (and travel) to the workplace may lead to anxieties about the risks to which employees then potentially become exposed. Colleagues may have suffered bereavement. Employers will therefore wish to consider what additional support they can provide to employees in respect of their mental health and to remind employees of the resources available under any Employee Assistance Programme that is in place.
The effectiveness of an employer’s handling of the process of return from remote working may be facilitated by seeking employee input and engagement, whether through online feedback, Q&A sessions, focus groups or the formation of working groups to which employees can contribute.
Refusal to return to the workplace
Employers need to be aware of the issues they may face if an employee does not wish to return to the workplace citing fears about the risk of infection within the workplace, the risk of travel to and from work, or their own health situation or childcare difficulties (if schools and nurseries remain closed). Disciplinary action or dismissal for failure to comply with a requirement to return to the workplace could lead to claims of health and safety related unfair dismissal or detriment, whistleblowing or unlawful discrimination. Importantly, these claims do not require the two years’ continuous employment that is otherwise needed for an employee to be able to bring an unfair dismissal claim and the compensation which can be awarded where a claim is successful is not subject to any cap.
If an employee refuses to return to the workplace, careful investigation and discussion with the individual will be needed before any disciplinary or other action is taken. Much will depend not only on the specific circumstances of the employer and the employee but also on the Government’s guidance on travel to work and working arrangements as it develops.
Managing holiday requests
After lockdown ends employers will need to deal with the inevitable pent up demand employees will have for holiday leave once they are able to travel. Holiday requests will need to be dealt with consistently and fairly to maintain employee goodwill and avoid grievances or even constructive dismissal and discrimination complaints. Those who have not been furloughed may feel more entitled to take holiday at an early stage than those who have been away from work on furlough. Phasing the level of permitted holiday over time and ensuring fair request and approval procedures will be important in terms of morale, goodwill and sensible management of staffing needs over the months following the end of lockdown.
Holiday carry forward
The management of holiday requests after lockdown will also need to take account of the Working Time (Coronavirus) (Amendment) Regulations 2020 which were made and brought into force with immediate effect on 27 March 2020. The Regulations amended the Working Time Regulations 1998 (the “WTR”) to provide an exception to the usual bar on carrying leave forward to the next leave year.
These regulations provide that:
- Workers can carry forward unused annual leave into the two leave years immediately following the year in which leave was due to be taken.
- The right to carry over arises when it was not “reasonably practicable” for a worker to take some or all of the leave to which he/she was entitled as a result of the effects of coronavirus - including the effects on the worker, the employer or the wider economy or society.
- The right to carry over applies to the 20 day leave entitlement conferred by the WTR to implement EU law requirements but not to the additional 1.6 weeks’ entitlement that employees enjoy under Regulation 13A of the WTR.
- When an employee’s employment terminates, the employee will be entitled to a payment in lieu of any untaken leave in the current leave year and in respect of any untaken leave which has been carried over in accordance with the Regulations.
These regulations also introduce a restriction on an employer’s right to refuse a request to take leave that has been carried over. They provide that an employer can only require an employee not to take carried over leave on particular days where the employer has a “good reason” to do so. No guidance has been provided as to what may constitute such a good reason.
Where employers have agreed pay reductions or deferral or of pay or bonuses and they have not been put in place on a time limited basis, employers will need to address the reinstatement of normal pay or the continuation of such arrangements.
Employers will also be concerned about the impact on employee morale, motivation and retention by the adverse effect that the economic consequences of the COVID-19 pandemic may have had on bonus, share options and other forms of incentive. To ensure appropriate reward and incentivisation, adjustments may need to be made, if permitted and appropriate, to the terms of existing bonus and incentive arrangements – particularly in relation to performance targets which will have been set before the pandemic and therefore without regard to its impact.
Depending on the particular business context employers may also need to consider whether it is necessary to introduce retention/loyalty payments and increased discretionary bonuses.
Listed companies will need to consider not only to the rules of their specific incentive arrangements but also their remuneration policies and what is acceptable to shareholders.
Since the economic consequences of the COVID-19 pandemic may affect the level of discretionary bonuses that employers wish to make, care will need to be taken to ensure that bonus decisions are justifiable to minimise the risk of challenges on the basis that the decision is irrational or takes into account irrelevant or inappropriate factors.
Forward planning for the end of lockdown and the return for employees from remote working will be essential. Nonetheless these plans will need to comply with the Government’s guidance and requirements in relation to the relaxation of lockdown on which we will report as and when there is further news.
In relation to all these issues employers should ensure that their communications and engagement with their employees are as effective as possible and that, whether by way of training or otherwise, managers apply the employer’s requirements appropriately and consistently and that employees are fully aware of the employer’s expectations.