COVID-19 EXPERT LEGAL INSIGHTS

'Loxit'
What are the key legal considerations
for UK employers?

5 May 2020

The end of lockdown poses a number of difficult and challenging problems for employers. I am personally grateful that I do not have to make decisions that to a degree may need to balance human health against the falling economy. Employers have a legal duty to ensure the health and safety of staff so far as reasonably practicable. This will not be straightforward.


Whilst of course there is the need to balance finances, the health and safety of staff should be of paramount importance for employers. Employers need to consider and take appropriate steps to mitigate these risks as far as reasonably possible:

Conduct a Risk assessment

Prior to staff returning, employers should carry out a risk assessment. It may help to involve health and safety professionals in undertaking this task. A risk assessment may involve considering some of the following (this is by no means an exhaustive list):

  • determining whether there should be a full return or partial return of staff; if a partial return, which staff should return first;
  • which staff are more vulnerable and when and how those individuals should return to the office;
  • how can the office be rearranged so as to comply with social distancing measures;
  • should there be staggered start times so everyone doesn’t turn up at once;
  • should group lunches and drinks after work be banned at least in the short term;
  • how will meetings be conducted and should face to face meetings for the time being be banned; and
  • should there be a “red zone” if an employee becomes unwell. Carrying out a considered risk assessment will help employers mitigate health and safety risks and the potential for claims from employees if things go wrong.

 

Have policies in place

It would be wise for employers to have a policy in place covering some of the above issues. Much of this will be “alien” to employees and so having clear policies and guidance in place will help to assist employees with returning to what will be unfamiliar to them. Having clear policies will also assist with meeting health and safety obligations.

 

Document your decision making

As mentioned above, employers will need to consider whether there should be a full or partial return to work for staff. Where there is a partial return of staff, employers will need to determine who is to return and when. Decisions on this should be objective and based on the needs of the business (whilst factoring in health and safety risks). It is advisable to document the business rationale so it is clear on what basis it was decided a particular employee should return to work instead of someone else.

 

Establish who your key workers are

In a recent article in Financial News which referred to a “leaked” UBS document there is reference to a recommendation that employees come back to work in phases and prioritising key workers over others. I agree with this approach. Top of the list of returning staff is allegedly traders. Presumably traders are considered as key workers because they provide a significant income source to the bank. This brings a new meaning to “key workers” which we have been accustomed to hearing of late.

 

Dealing with tricky employees

For many employees, the idea of returning to the workplace may seem exciting. For others, returning to some level of normality will strike fear. There will be occasions where employees say they are worried about coming back to work because of this. This situation is likely to throw up a number of challenges for employers.

If appropriate reasonable steps have been taken and an employee refuses to return to work, an employer will need to think about what steps to take. Rather than take formal action against the employee for what could be considered an employee’s unreasonable refusal to come to work, other approaches could be explored. Where working from home is just not an option, an employer may want to consider whether there are other alternatives they could explore such as the employee using up their holiday or being put on a period of unpaid leave, at least initially. Whilst the latter may lead to employees resigning and claiming a breach of terms, following other approaches that do not include disciplinary action and dismissal may well place employers on a better footing if they are faced with subsequent tribunal claims.  

Having an open and constructive dialogue with employees may help with navigating this minefield.

 

Consider the possible measures for vulnerable employees

The most vulnerable staff are likely to be those in the business who are older, pregnant and who have health conditions. An employer should undertake a risk assessment and consider whether those who are most vulnerable should continue to remain away from work and, if so, for how long. For some, this may be until there is a viable vaccine or effective treatment. This is less likely to be an issue where those individuals can sensibly work from home. However, where this is not possible, continuing to exclude those individuals from returning to work could give rise to assertions of discrimination. This may not be such an issue where these individuals receive full pay. However, this will not often be the case. In addition to the measures mentioned above that an employer will need to consider putting in place, the employer will also need to consider whether there are other specific adjustments that can (and should) be made. If there are, then these steps should be taken before consideration is given to taking action such as putting the employee on unpaid leave or considering whether steps need to be taken to “exit” the employee.

 

This will undoubtedly not be straightforward, and there are inevitably going to be risks involved, but employers may need to take difficult decisions to avoid having employees “running the show”. There are sometimes occasions when, after managing the risks to the best of your ability, the most sensible course is to proceed to bite the bullet, however difficult that may seem to be. Undoubtedly everyone’s health is of the utmost importance, but preserving the “health” of the business is important too.

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We welcome views and opinions about the issues raised in this blog. Should you require specific advice in relation to personal circumstances, please use the form on the contact page.

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