COVID-19 EXPERT LEGAL INSIGHTS

Property adjustments required to ensure a safe return to work: Employment and Property law insights

20 May 2020

As the UK eases its lock-down measures, employers need to start planning a safe return to work for staff.  In the short-term, this means providing a ‘COVID-19 secure’ environment, enabling staff to maintain social distancing whilst attending work.  However, when planning the use of workspaces, employers should also consider the longer term ramifications of the pandemic on necessary adjustments to their property.
 

Short-term:

The primary focus of a ‘COVID-19 secure’ environment is protecting the health and safety of the workforce.  Employers have a statutory and common law duty to provide a safe workplace and to conduct risk assessments.  An employer must take all reasonable steps to ensure that their staff work in a safe environment, and if it fails to provide adequate measures to protect the workforce, it could face legal criminal and civil liability.

How is it possible to do this, in practical terms?

  • carry out a COVID-19 risk assessment, following guidance produced by the HSE;
  • consult with staff, unions and/or workplace safety representatives as appropriate;
  • where your office is based in a building with other tenants, collaborate with your landlord and the other tenants to agree how access to the building and use of any common parts, including lifts, are managed. Where the landlord arranges any services for the internal parts of the property such as cleaning then make sure there is a social distancing protocol in place for third parties accessing the property;
  • the current Government guidance provides that for those who cannot work from home and whose workplace has not been told to close, they should go to work.  It is envisaged that these rules will continue to relax with time. Therefore encourage home-working where feasible and in particular where an individual is pregnant or has/lives with someone who has an underlying health condition;
  • stagger working hours or introduce shifts to reduce the volume of people in the workspace;
  • adjust workplaces to maintain (where possible) 2 meter social distancing between staff. For example, open up more exit and entry points, move desks to ensure staff sit 2 meters apart, create one way walk-through systems and put in place 2 metre floor markings in frequently used areas, limit cross-floor access;
  • end hot-desking arrangements to avoid equipment sharing;
  • ask staff to walk, drive or cycle to work where possible;
  • encourage use of protective equipment where appropriate;
  • limit numbers of employees in small or enclosed spaces such as lifts;
  • where people cannot be 2 meters apart, control the risk of transmission by, for example, installing screens between desks and ensuring colleagues are facing away from one another;
  • limit visitors and explain your measures to visitors upon arrival;
  • close cafeterias, dining halls, communal kitchens and where possible set up common areas outdoors, where risk of transmission is lower;
  • enhance office cleaning services and provide hand washing facilities or hand sanitisers at all entry and exit points;
  • determine availability of testing capabilities and perform temperature scanning on office entry; and
  • display a standard form notice in the workplace to demonstrate compliance with the Government guidance.

Longer-term:

It is clear that many employees who have successfully been working from home or otherwise working flexibly due to the pandemic may want to discuss retaining such flexibility in the longer term. Your business may also have been affected by the pandemic and you may be considering your rental liabilities going forward. The property market has been heavily affected by the pandemic, analysts at RBC Capital Markets expect office rents in the City to fall by 23% this year. Employers with a large office base therefore need to consider their long-term property needs.

Factors to take into consideration include:

  • How much space will you need in the future? With some employees wanting to continue to work remotely, the size of the office required may decrease but this needs to be balanced with desks being more spread out to comply with social distancing rules and the office being a social and collaborative space and the benefits to a business that this brings.
  • Working together with other tenants in your building in the future to make sure you are all abiding by the same practices in the shared spaces in the building in order to protect your employees. It is likely that the office spaces which will thrive in the future will be those that focus on health, safety and flexibility.
  • The current layout of properties and, if you are moving to a new building in the coming period, the layout which you are planning for the new space. It may be that plans to allow large parts of the office to be used for shared facilities such as canteens and gyms needs to be re-thought or scaled back. There is likely to be a trend towards employees spending less time in the office and using the space in a different way.
  • If you already know that you will need to reduce your annual rent and office space in the coming years then look at the terms of your lease now. Do you have the option to terminate your lease early? Can you underlet a part of the property to help cover your rent costs?

The Department for Business, Energy and Industrial Strategy is currently preparing further guidance for workplaces in different sectors of the economy, regarding steps they can take to adequately protect their workers.  Employers should ensure they keep abreast of the guidance, which is being updated regularly, and update policies, procedures and internal communications appropriately.  However, employers should also consider what the longer term landscape might look like regarding use of buildings and workspaces.  Appropriate building adjustments should be factored into any longer-term strategy or cost-cutting measures, to ensure a safe and appropriate space is provided for staff in the most cost-effective manner possible under the circumstances.

Further information

Should you have an queries regarding the issues raised in this blog please contact Moira, Vanessa or any member of our employment and property teams.

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