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The Prime Minister, Boris Johnson, addressed the nation on Sunday 10 May 2020, to communicate his government’s “road map” out of lockdown, followed up with today’s publication of the ‘COVID-19 Recovery Strategy’. More generally, employers’ thoughts are turning to the phasing out of the furlough scheme and the future of home working. What are the HR issues to consider as we enter into this latest phase of the coronavirus crisis?
Moving away from the clear ‘stay at home’ message – which has, apparently, proved “too effective” – the government is now saying that individuals are ‘actively encouraged’ to go back to work, if they cannot work from home. Public transport should be avoided if possible.
This is caveated by the exception that employees employed in businesses which have been ordered to close cannot return to work; and also that people are only required to return to work if it is safe to do so.
In other words, there is no substantive change from previous position: employees who can work from home should continue to do so; and employees who cannot work from home and whose employers are still operating, should go to work but social distancing guidelines should be followed.
However, given that most children will not return to school until later this year, employees with childcare responsibilities are likely to struggle to return to work.
Where employees are able to return to work, social distancing measures must be put in place and, in accordance with the government’s COVID-19 Recovery Strategy, published today, employers will need to think creatively about how to adhere to the requirement of keeping employees 2 meters apart. This may include
Employers should work closely with their health and safety teams and any union representatives to ensure compliance with the duty to protect, as far as reasonably practicable, employees’ health, safety and welfare.
Employers must undertake a risk assessment, ensure that there is a safe system of work and ensure that the system is followed – for example, if hand sanitizers are provided, employers should ensure that they are being used.
All measures should be communicated to employees and employers should have a procedure in place to deal with any concerns raised.
If employees have concerns about the safety of returning to work, it is possible that they may have claims under section 44 and section 100 of the Employment Rights Act 1996 for detriment or dismissal. Each of these protections requires that employees have a “reasonable belief” that there is a “serious and imminent” danger. No doubt the question of whether these concepts cover the COVID-19 situation will be litigated in due course. In the meantime, it seems likely that it will be covered.
This is a fast moving situation and employers should stay up to date with the latest Government and Public Health Guidance and World Health Organisation Guidance. The health and safety executive has also published advice and guidance relating to COVID-19 which may be useful when considering health and safety measures. Government has been called upon to produce clear guidance on how employers can meet their health and safety obligations to staff in the context of managing coronavirus risk. According to the COVID-19 Recovery Strategy published by the government today, it has been consulting with various industry and employment bodies on safety guidelines on how each type of physical space can be adapted to operate safely. These guidelines will be published later this week. Employers should read and follow this and all other guidance. That said, compliance will not guarantee immunity from claims by employees. The overarching obligation will remain, as outlined above: to undertake a risk assessment, consult with employees and ensure that there is a safe system of work, which is actively implemented.
This approach is reflected in a new section in the Acas Coronavirus (COVID-19) advice for employers and employees. This new refers to ‘working safely’ rather than ‘staying at home’ and contains a new section on ‘planning to return to the workplace’.
Remember that if a worker or employee raises a concern about a failure to provide a safe working environment, this could amount to a protected disclosure under ‘whistleblowing’ legislation. In these circumstances, an employee will be protected under the Employment Rights Act 1996 from unfair dismissal (with no qualifying service requirement). Both workers and employees are protected from from suffering detrimental treatment as a consequence of their disclosure.
Furthermore, there are data privacy issues to consider. Employees may ask whether any of their colleagues have had the virus. This information can potentially be provided in certain circumstances, though the name of the employees should not be revealed. Indeed, some employers may want to take their employees temperature readings or obtain other ‘special category’ data from employees, such as details of whether they or their families have had symptoms. In order to require a temperature reading, an employee must consent and employers should look to their policy on medical testing. Data relating to employees’ temperature and other medical data related to the virus can be collected and processed. However, you need to be open and clear about the reasons for such processing and how that data will be retained and processed. You may need to amend your privacy notice. Please see this statement from the European Data Protection Board for further information.
Employees may also express concern and anxiety about travelling to and from work, depending on the method of transport that they use. Employers should be sympathetic to the risks, consider each situation on a case by case basis and be as accommodating as possible in the circumstances – particularly in the light of the Prime Minister’s specific advice to avoid public transport for getting to work, if at all possible.
Over the past 6 weeks it has been reported that the percentage of those working from home has increased from 5% to almost 50%, with many employers being pleasantly surprised at how smooth the transition into home-working has been.
In light of this, it seems likely that many employers whose employees can continue to work from home, will be expected to carry on doing so – even now that the strict requirement to work from home has been eased a little. Indeed, many employees may request to continue working from home, or at least to work from home for part of the week and requests to do so may be harder to refuse in the face of cogent evidence that an unexpected period of home working has gone smoothly. However, the current situation is exceptional and homeworking may not be sustainable in the longer term.
Employers should have homeworking policies in place and should refer to these as required. The statutory procedure and reasons for refusal of a request for home working under the Employment Rights Act 1996 will still apply (see the Acas Code of Practice for more information). However, the greater cost and litigation risk for refusing continued home working will be linked to potential claims for indirect discrimination. The highest risk area will be claims for indirect sex discrimination, but also indirect disability discrimination / discrimination arising from disability. In order to justify such claims, you should ensure that you have legitimate, objective reasons for rejecting requests to continue home working. These should be recorded in writing and retained.
On the flip side, employers may find employees pushing to return to office based work. Some employees may feel they are losing out on valuable social interaction with their colleagues and some may feel that they are losing visibility within their organisation, potentially hindering skills development and career advancement. It may be that employers find themselves in the unusual situation of having to justify continued home working, rather than the reverse. In these circumstances, issues around health and safety are likely to come into play (see above).
It seems that the Prime Minister’s address on Sunday 10 May 2020 may have been timed to dovetail with the government’s previously stated aim of encouraging a movement away from furlough and back into work. How should employers lawfully bring furlough agreements to an end?
Placing employees on furlough leave requires agreement. If you have an agreement to furlough or a furlough policy which also covers the process for ending furlough then this should be followed. In the absence of such a process, there is no prescribed statutory process for ending furlough. As a matter of good practice, and in order to comply with the duty to maintain employees’ trust and confidence, employers should give reasonable notice that employees are required to return to the workplace. However, employers should be mindful of the eligibility requirement of the Coronavirus Job Retention Scheme (CJRS) - it requires an employee to be furloughed for a minimum period of 3 weeks. If the employee returns too soon, and does not meet the 3 week minimum period, the grant will not be paid to the employer by the government.
At the time of writing, the furlough scheme is due to end on 30 June 2020. However, the government has said that the scheme may be extended. The Chancellor of the Exchequer has told Unions that there will be no abrupt end to the scheme; it will be phased out gradually. At the moment, it is not clear how the phasing out will work in practice, We understand that options include
We await further guidance on how access furlough funding will taper off.
This publication is intended for general guidance and represents our understanding of the relevant law and practice as at 11 May 2020. Specific advice should be sought for specific cases. For more information see our terms & conditions.
11 May 2020
by Stuart McBride