Returning to work

There are still a lot of unknowns from Boris Johnson’s update, but what is clear is that at some stage we will need to implement a safe return to work. Given this will likely be in the context of a continued threat from Covid-19, this means that there is a lot to think about in order to get this right.

Here are some key areas for you to consider when planning how to do this well.

1. Review how to make your workspace safe: 

 

  • Risk Assessment: Do you have a good grasp on the risks that employees and customers may face with a return to work, specific to your business?  If you don’t have one already, then invest the time in a risk assessment, something you should share with your team to help them understand how you plan to safeguard their wellbeing and that of any clients.

  • Capacity & Office layout: How many people can you allow back in to your workplace at any one time, whilst maintaining social distancing (2 metres)?  How will you manage movement in your workplace (one-way systems etc)? If you have shared areas, how will you manage these? If you are in a shared building, is your landlord also putting a plan together?

  • Personal Protective Equipment (PPE): Do you need to put in place additional PPE or other Health & Safety equipment to safeguard employee and/or clients wellbeing?  What equipment cleaning/equipment sharing restrictions will you need to make (e.g. use of shared desks etc)? 

  • Approach to workplace visitors: How will you manage others coming to your workplace (whether customers, suppliers or others), whilst keeping social distancing in place for your team?

2. Think through how your team will be able to attend work:

   

  • Engaging with your people: It is likely for those who can, homeworking will continue to be a feature of the government’s plan for some time. Many of your people may have got used to working from home, and most surveys suggest that this is something employees will be expecting more of even after the crisis has come to an end It will be worth discussing with your team what has worked well (and not so well) during this time, and using this to help plan for the return. You should also be aware of what rights employees have around flexible working requests.​

  • Deciding Working patterns: Once you know how many people can be in your workplace at any time, you’ll need to decide on what working pattern(s) to implement, and agree who really needs to attend the office (given many will still be caring for dependents, or may need to continue to shield for some time to come etc). Planning for this could include phased returns, rotating teams (so different teams attend on different days), staggering start times and/or implementing shifts.

  • Allowing for issues with transport: Whatever pattern you decide on, it will need to allow for restrictions in public transport capacity which will be much lower for some time. You may need to provide PPE for those using it to attend work.  You should  consider how you support alternatives– for example spaces for bikes and help with car parking for those wanting to avoid public transport. You may also want to look at staggering start times to help people avoid peak travel times.  

​3. Be clear on how you will support your team, given the different circumstances they may face:

  • Understand individual circumstances for each of your team and make adjustments: There are a wide range of issues people will be dealing with – from continued childcare, caring or living with vulnerable people, concerns about long commutes etc.  You will want to work through these fairly – what options do you have to support them while meeting the business needs? 

  • Supporting wellbeing: There may be a range of issues your team are experiencing – from anxiety around personal safety and coming back from a period of furlough, through to effects of having been at home for an extended period.  How will you bringing your team together, and provide ways for people to discuss the issues they face?

Rights when asking people to return to work

Businesses are starting to think about how they will manage the transition back into more usual ways of working. One concern is that some employees may not feel comfortable with returning to the workplace, travelling, or meeting clients, even if this is a key part of their role. What are your rights as an employer and what steps can you take to get your business back to “normal” as soon as you can?

Can an employee refuse to travel, come into the office or meet clients?

   

Potentially they can. If the employee reasonably believes that there is an “imminent and serious danger”, they can take “appropriate steps” to protect themselves or others. This may include a refusal to travel, come to work, or meet with people.  Any detriment they suffer for reasonably exercising their rights, or any dismissal is likely to be unfair. There is no need for the person to have 2 years’ service to claim this, and additionally, you may run into issues of Health & Safety rules as well.

What does “imminent and serious danger” and “appropriate steps” mean in the current situation?

   

Firstly, is there an imminent and serious danger? Current thinking is that Covid-19, and the risk of catching it, would fall into this category, as the virus is contagious and can be very serious. Therefore, the key question is whether the employee’s actions are an “appropriate step” to protect themselves or others. This will depend on the circumstances, the knowledge that person had about the situation, the potential threat, and any advice available to them at the time. The measure is not whether you as the employer think the steps are appropriate, it is about the employee’s judgement and whether this is reasonable in the circumstances with what they know.

How important are individual circumstances?

   

The short answer is “very”. If someone is classed as “clinically extremely vulnerable” they have been advised not to work outside the home, regardless of any risk assessment or mitigation. If they are classed as “clinically vulnerable” additional care must be taken, and the expectation is that the support for them and the steps taken to protect them is higher than for those not categorised as such, and the suggestion is the starting point should be that they remain working from home unless they absolutely can’t.  As the rules are for the protection of the individual and “others” their home context is also relevant. If they live with someone who is vulnerable, this would be relevant in looking at what steps they take. In all cases it’s important that you understand the individual circumstances as this goes to whether their action would be “appropriate steps”.

How do we manage this practically?

   

There is not a simple answer to this, but there are steps you can take that will help. A good risk assessment, with a reasonable plan for mitigating risks, which is shared with employees will be considered part of the information that is available to them, therefore will go to the knowledge they had when assessing whether the steps they took were appropriate. Recent government guidance has suggested that all employers should try, where possible, to publish the risk assessment on their website, with the expectation that those with over 50 workers must do this.   You should provide relevant protective equipment (which you are obligated to do under Health and Safety law as well), provide any cleaning equipment required, make changes to your workplace to meet government standards and put robust policies in place around safety related to Covid-19 and ensure that these are enforced. All these steps and measures should be shared with employees in a transparent way. You should also understand what concerns employees have and discuss how these can be managed and mitigated to a reasonable standard.

What if we believe that the employee has had enough information that shows the steps they are taking are not appropriate, but they are still refusing to do what we need?

  

You should seek advice about what your options are. You may, for example, be able to take action to force someone to come to work, but you should always get advice first as the implications of getting this wrong could be significant

What if their personal circumstances mean that they may be right, for example, they cannot safely come to work. What does this mean if they cannot do their job as a result?

   

This is complex, depending on what the underlying issue is, what the government advice is, and what alternatives are. Looking at a very basic example, if you felt that you could not pay them if they did not work and there was no government interventions available, the risk will depend on what the reason for not paying comes down to. If you took the action because the employee has reasonably exercised their right to refuse to come to work for safety reasons, then that would likely be found to be unfair. If it was because they were not able to do the job itself, and therefore you could not pay them, then this has the potential to be fair.  It is not black and white though and should be carefully considered with professional advice.

This is a complex and, likely to be a rather lively, aspect of the law. There is little doubt that over the coming months we will start to see more discussion of this, and there may be further guidance as we progress. Right now though, you should consider what steps you can take to safeguard employees, how you will make them feel safe and, in the event that there is a difficult situation, seek appropriate support as needed.

Please note that this information is for guidance only and should not be regarded as a substitute for taking full legal advice on specific facts and circumstances at the relevant time.