Towards the new normal: The return to work for furloughed workers

The Prime Minister has announced the Covid-19 recovery strategy setting out a 3-phase approach to lifting lockdown and moving to the “new normal.” A significant element of this strategy is a return to work for employees in different industry sectors with food production, construction, manufacturing, logistics, and distribution businesses all encouraged to return to work immediately. On Tuesday, the Chancellor announced that financial support for furloughed workers would continue until the end of October with the present level of contribution continuing to the end of July and tapering contribution after that. Further details are expected, but the most likely scenario seems to be a reduction in support from 80% of wages (subject to a £2,500 per month cap), to 60% of wages with possible further reductions in subsequent months. There is also support for part-time working to encourage a staggered return to work for some workers.

Notwithstanding extensive media commentary on the “new normal” in the post COVID working environment, many businesses are unsure how they will meet the challenge of re-integrating furloughed workers and refining their systems of work to comply with the regulatory obligations to provide a safe working environment.

The most pressing concerns for business owners/managers are likely to be ending furlough leave and the subsequent reintegration of furloughed employees, ensuring the provision of a safe place of work and compliance with regulatory obligations relating to health and safety at work, data privacy concerns in respect of employee health information and the impact of challenging trading conditions and the consequential possibility of business restructuring.

Ending furlough leave

Many employees have an understandable concern that by returning to work, they will inevitably increase their risk of contracting the COVID-19 virus with consequential risk to the health of their family members. It is conceivable that this concern may cause some employees to be resistant to a return to work. In this case what steps would be appropriate where a healthy employee refuses to come in to work?

The primary consideration in managing these cases is likely to be the adequacy of safety precautions which the employer has put in place prior to the date of the employee’s proposed return to work. All employers operate subject to statutory obligations to provide a safe place of work (see below), and a failure to comply with that obligation may well breach the contract of employment. Any employer which is in breach of the employment contract could not reasonably insist that an employee should comply with the contractual obligation to present themselves for work.

Where an employer has taken reasonable precautions to provide employees with a safe place of work, any employee who refuses to come in to work due to their concern about exposure to the virus may face disciplinary proceedings. However, if the employee reasonably believes that there is a serious threat to their health caused by the conditions at work (and/or possibly a threat caused by the mechanics of travel to work), then a dismissal of the employee could be automatically unfair in breach of section 100(1)(d), and section 44(1)(d) of the Employment Rights Act 1996 may also apply to enable the employee to claim compensation for any detriment (such as non-payment of wages) which results from their refusal to return to work.

It will be imperative for employers to take steps to ensure that their workplace and working practices are safe. The most sensible approach to understanding what will be reasonable precautions for the workplace, would be to apply Government guidance where possible. If it is possible to apply a higher level of protection than is specified in Government guidance, it would be a sensible investment to do so. Part of the value of applying enhanced safety standards in the workplace will be in winning over the “hearts and minds” of employees who may be concerned about a return to work and the value of psychological engagement in the return to work process should not be underestimated.

On Monday 11 May 2020, the Government issued detailed guidance (the “Covid-19 Secure” guidelines) which underpin the change in the approach outlined by the Prime Minister. It may be helpful to review these and to consider to what extent they can be built into your working practices. An important component of the return to work process with be a thorough risk assessment and this will also highlight any particular issues of concern allowing the business to focus resource upon the key challenges facing employees who are returning to work. There may be some value in supplying a copy of the risk assessment and method statement to employees at the point where they are informed about the proposed return to work. I understand that some Unions have insisted on the provision of this information as a precursor to their members return to work.

In circumstances where an employee refuses to return to work, and reasonable precautions have been made to ensure a safe place of work and safe working practices, the employer may feel compelled to commence disciplinary proceedings to ensure that they maintain some control over the situation. ACAS has helpfully issued guidance relating to the holding of disciplinary hearings while employees are away from the workplace and this supports the view that an employee’s refusal to return to work should not prevent a disciplinary process from being pursued. Employers would be prudent to review and follow the ACAS guidance to mitigate the risk of subsequent employment litigation.

The regulatory obligations to provide a safe place of work/system of work

As we look towards a return to work in some way over the coming weeks, what are the obligations on employers under the Health & Safety legislation, what questions do you need to consider and what steps and measures may you need to implement?

The Health & Safety at Work Act 1974 imposes a duty on all employers to do everything that is “reasonably practicable” to safeguard its employees and those affected by its operations. Breach of this duty is a criminal offence and not only the organisation but also its senior officers, could face prosecution. It is, therefore very important to comply with this duty.

The legislation does not define “reasonably practicable,” and much will depend upon the nature of the work being carried out, the size of the business etc, but as a rule of thumb, it involves weighing up the risk against the cost of preventing or mitigating against the risk (whether that be in terms of money, time or trouble). It is not an “all or nothing” principle – if there is disproportionality, you will need to consider if there are easier or more proportionate steps which you could take.

Under the management of Health & Safety at Work Regulations 1999, employers are required to carry out a risk assessment, if there are 5 or more staff, that assessment needs to be in writing. However, it is good practice to record your assessment regardless of staff numbers. The assessment must be kept under review as circumstances change, so you must review any existing risk assessment or carry out a new one before employees return to the workplace.

Where to start – five steps to assist in carrying out the assessment are as follows:

1. Identify the risks;
2. Identify who might be affected and what potential harm could be caused;
3. Identify the steps that can be taken to prevent or mitigate against risk;
4. Record findings;
5. Review the assessment regularly.

What type of measures will you need to consider? Much will depend upon the type of work and workspace layout etc so you will need to develop a plan specific to your organisation. Some key areas to think about are as follows:

Implementing social distancing: Is this possible in your workplace as currently set out? Consider rotating staff to reduce the number of employees attending the workplace each day, staggering or reducing working hours. Does the layout of the workspace need to be altered? Consider spacing out desks or using hotdesking (subject to suitable sanitisation). Consider marking the floor to assist staff in obeying the 2-meter distancing rule. Consider communal areas – not only kitchens and toilets but stairs and lifts. Do you need a policy to reduce the number of people who can use facilities at any one time? How will you communicate that policy to staff? Consider how staff are travelling to work – if on public transport, do you need to alter their start and finish times so they can avoid rush hour? Do you have parking facilities if staff would prefer to drive?

Consider alternatives if social distancing is not possible: for example allowing employees to have their personal possessions at their workspace may avoid the need for them to congregate in high traffic areas such as changing rooms. Additional hygiene measures, use of screens, use of PPE for staff – depending upon the nature of your business. There are also rules around PPE and ensuring its adequacy – again, a failure to ensure that PPE meets an adequate standard could be a criminal offence.

Implementing a hygiene protocol: ensure everyone disinfects their hands on entering the building and that equipment such as computers and telephones are regularly cleaned. Consider how often the workspace is cleaned and if that needs to be increased. Ensure there are adequate handwashing facilities available. Consider ventilation systems and ensure these are working adequately.

Staff awareness: Provide training, regular updates, display posters, and notices around the workspace. Consider how you are going to deal with any breaches of the policy by staff.

Staff physical and mental wellbeing: When undertaking a risk assessment, take into account the demographics of your employees – their age, any underlying health conditions, pregnancy, household members that are shielding. If you don’t already know this information, it may be worth sending out a survey or questionnaire prior to the return to work. This correspondence could also be useful to gauge anxiety levels and to consider action you can take to offer reassurance – for some staff it may be a return to work is not appropriate and it may be better for them to continue to work from home. Others may need a phased return to work, reduced hours, etc. Consider if you need reduced hours etc. Consider if you need a reporting procedure if a member of staff or someone in their household comes down with Coronavirus symptoms.

Check official updates every day: Make any changes to the risk assessment and policy that are appropriate.

The Health & Safety Executive has said it will take a proportionate approach to enforcement during the Covid-19 pandemic. However there is a real risk of prosecution if there is inadequate evidence of planning, if employees are pressurised to return to work, if social distancing is not enforced and/or if there is no adequate PPE where necessary. As a consequence, it is worth spending some time thinking about these issues and documenting your thought process prior to beginning the reintegration of employees into the workplace.

The collection of employee health data

Many businesses may conclude that it will be necessary to collect employee health data (for example details about whether or not an employee and/or members of their household have had, or are suffering from Coronavirus symptoms). This level of data collection will go beyond the usual data gathering requirements which the business may have in place. It is likely that an employer can legally collect personal health data relating to COVID-19 from employees if it is relevant and necessary to do so. However, the employer will then become the “data controller” of this information and will be subject to processing obligations under the General Data Protection Regulation (“GDPR”).

The present status of the Government’s proposed track and trace smartphone application is unclear. It has been bedeviled by criticism that it is not legally compliant and there are rumours that it will be dropped in favour of the Apple/Google model which has already gained traction in Europe. Given this uncertainty, it seems likely that employers may need to gather information from workers and their household members, which goes far beyond that which the business may usually collect (for example results of COVID-19 testing and locations that members of staff may have visited). This type of data is likely to be “special category data” and is subject to enhanced levels of security under the GDPR and Data Protection Act 2018.

The European Data Protection Board announced in March that the GDPR permitted employers to process personal data in the context of an epidemic, and in those circumstances (and in compliance with national law) there will be no need to rely on the consent of individual employees to process this type of data. This may result in circumstances where businesses are collecting and retaining much more highly sensitive personal data than their information security systems were designed to manage. Additionally, increased levels of homeworking will inevitably increase the risk of a data breach due to inadequate security of data being processed away from work, or being transported between work and the employee’s home.

The Information Commissioner’s Office has suggested that it will adopt a pragmatic and flexible approach to compliance during the pandemic but this should not be interpreted as a “get out of jail card”. A significant breach of security relating to special category data collected from employees will be likely to result in ICO investigation. Businesses have the obligation to self-report any data breach within a period as short as 72 hours, so there is no justification for complacency. Over the last year, the ICO has begun to level much higher financial penalties than were common before the implementation of the GDPR and consequently the financial impact of a significant data breach could be costly. It may be prudent for businesses to review their information security/data privacy rules because of any new ways of working.

Changing terms and conditions/restructuring

For some businesses it may already be clear that it will be necessary to review their structure or business model in the post COVID trading environment. In those circumstances the end of the government furlough scheme or the reduction in financial support from August may prompt a review of their employment requirements.

It is possible to alter employee terms and conditions (for example to reduce staff cost by salary cuts/removal of bonus etc) and the usual advice is to consider achieving this with employees by consent if possible. If it is not possible to agree on a reduction in terms and conditions with employees it may be appropriate to consider terminating their contracts with an offer of re-engagement on revised (i.e. reduced cost) terms. It is essential to understand that a successful outcome to a termination and re-engagement program will be technically challenging and it would be appropriate to obtain expert advice and support. There is significant risk with these type of “business-wide” programs as if there is an error in the process it can result in a claim on behalf of all affected employees.

Some businesses may conclude that there is no alternative but to undertake redundancies and in those circumstances, it will be important to understand the collective consultation obligations (a minimum of 30 days consultation if there are 20-99 redundancies and a minimum of 45 days consultation for 100 or more redundancies), which will impact the timeline for the process and influence how quickly any cost-saving will benefit the business. Redundancy/restructuring exercises are frequently complex with a high risk of litigation if they are not conducted correctly. Expert advice and support will assist in de-risking the process and the use of a “DIY Redundancy Toolkits” can be a cost-effective solution.

By

Carl Atkinson & Sian Darlington