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Return to workplace – new guidance
In our recent OnPoint we discussed various issues for employers to consider when planning for the end of lockdown.
Following its announcement on 10 May 2020 that employees should be actively encouraged to return to work if they cannot work from home from Wednesday, 13 May 2020, yesterday the UK Government published new guidance intended to help employers, employees and the self-employed understand how to work safely during the coronavirus pandemic in relation to various types of workplace. According to the guidance, these guidelines were developed in consultation with approximately 250 businesses, unions and industry leaders as well as devolved administrations, with the Government stating its objective to be providing guidelines to make workplaces as safe as possible and to give people confidence to go back to work during the coronavirus pandemic.
This new guidance applies to businesses which are currently open and also includes guidance for shops which may be permitted phased reopening at the earliest from 1 June 2020. Guidance for other sectors that are not yet permitted to open will follow in due course. It remains the case that those employees who can work from home should do so, and that those businesses which were required to close on 23 March 2020 must remain closed.
The guidance covers the following areas of work:
Recommendations – five key points
Although the specifics vary between the types of workplace that it addresses, the guidance is based on five key steps:
A downloadable notice is included along with the guidance which employers should display in their workplaces to show their employees, customers and other visitors to their workplace that they have followed this guidance.
The guidance also addresses the issue of clinically vulnerable and extremely vulnerable workers, and those who are self-isolating due to their own symptoms or those of someone in their household.
Considerations for employers
Whilst those employers that have already started their detailed planning are likely in practice to have been considering the 5 key steps and more detailed recommendations set out in this guidance in any event, where this guidance applies to their particular workplaces, employers should clearly consider carefully its detail when planning a return to the workplace. In any case, employers need to plan carefully to ensure that they comply with their various statutory duties – including to maintain a safe workplace, to conduct risk assessments and in certain circumstances to provide personal protective equipment. Despite the publication of this guidance, the challenge for many employers will be determining when it will be legitimate to seek to require employees to return to the workplace in the light of their assessment of the risks – both in the workplace and in relation to travel to and from work – and how a return can safely and sustainably be achieved.
Even if the guidance is followed by employers, employees may be unable or unwilling to return to the workplace on the basis of concerns about their facing serious and imminent danger, particularly if their only means of travel to work is by public transport, which the Government has advised against using if possible. Penalising an employee in such circumstances could leads to claims of detriment or automatically unfair dismissal. Employees may have particular personal circumstances relating to their health, the health of someone they live with or childcare issues, especially while schools remain closed, that make them unwilling or unable to return to the workplace.
Employers should therefore exercise caution in planning for their workforce to return to work, and should ensure that this is both necessary and safe, and that they are taking into account the individual circumstances of their employees. Conducting appropriate risk assessments, consulting as appropriate with employees and their representatives, devising a clear and robust implementation process, communicating expectations to staff and others, ensuring managers are aware of their responsibilities and keeping the situation under close review remain key elements of any plan for a return to the workplace.