The implications of furlough abuse
What should employers be doing to prepare for a return to the workplace?
What the risk assessment should cover will vary depending on the work environment. The Health & Safety Executive’s website contains a template and guidance on what should be included in a COVID-19 risk assessment and employers can also use the Government’s online tool (https://www.gov.uk/coronavirus-business-reopening) to assist them in carrying this out.
The Department for Business, Energy and Industrial Strategy (BEIS) has issued 14 sets of guidelines on working safely during COVID-19 covering a range of workplaces which should also be referred to and regularly checked to ensure that the most up-to-date provisions are being complied with.
We suggest that, if possible, it would be worth engaging a health and safety specialist to assist in carrying out the risk assessment. This is no ordinary risk assessment, so it’s worth investing in the necessary expertise to get it right.
The risk assessment should be well documented, whatever the size of the organisation. Government guidelines state that employers should share the results of their risk assessment with their workforce and that those with over 50 workers should publish the results on their website.
Employers will need to prepare a Health and Safety at work policy or, if one already exists, update it so that it takes account of the measures they will be introducing in light of their risk assessment. Employers may wish to introduce measures such as:
The need for having clear and accessible policies in place is twofold: (1) it helps to keep the workplace COVID-secure and ensure compliance with the employer’s health and safety obligations; and (2) it demonstrates to employees that the employer is conscious of doing the right thing, thereby minimising the chance of grievances and challenges.
It is advisable to provide training on any new rules or policies and, crucially to take steps to ensure implementation, including imposing disciplinary sanctions for non-compliance.
Even if there is no legal obligation to formally consult employees about a return to the workplace (i.e. pursuant to a trade union agreement), it would help to minimise the risk of any problems occurring if employers do so. Employees will feel more comfortable and reassured if they are given a chance to voice their concerns and see that they are being addressed. In turn, they will be more likely to make a willing return to the office. Government guidance also encourages employers to consult with their workforce about returning to work and having individual discussions with people.
It is a good idea to have a dedicated member of the HR team and/or management to act as the key point of contact for employees in this regard. Employees should be clear about who they should approach if they have concerns about returning to the workplace, or have concerns following their return. It is important to keep channels of communication open at all times.
What issues might employees have and how should employers handle them?
This is likely to be a key concern for many employees as it is almost impossible – particularly in London – for most people to avoid public transport. Employers should consider what adjustments can be made to their premises to accommodate other modes of travel, for example: expanding bicycle storage in order to assist those who wish to cycle in; implementing a cycle to work scheme; assisting in arranging parking spaces for employees’ cars; and encouraging running or walking to work by increasing changing room facilities. If employees are not comfortable travelling to work, employers should consider whether those individuals can reasonably continue to work from home or adjust their working days/hours in order to minimise the risk of transmission on a busy commute.
Some employees may have difficulty returning to work due to childcare responsibilities. Although most children have now returned to school, nursery provision and other wrap around care may not be available to the extent it was before lockdown. Employers should discuss individual circumstances with their employees – what is the issue with childcare and how long is it likely to last?
Employers could consider offering parental leave, dependents’ leave or a flexible working arrangement (such as reducing working hours or days of work) to deal with the difficulties faced by the employee. They might even wish to consider extended unpaid leave or a sabbatical. Any leave or changes to working patterns agreed with employees should be documented in writing.
Where an employee has exhausted all of their statutory and contractual entitlements to leave and remains unable to work due to childcare disruption, then it may be open to the employer to dismiss that employee for capability reasons, or “some other substantial reason”, but employers should tread very carefully in doing so. All other alternatives first should be considered first.
Special consideration will need to be given to employees who were previously shielding, are vulnerable or disabled.
As of 1 August 2020, employees who were shielding can go to work, provided that the business is COVID-secure, but they should continue to work from home, wherever possible.
If an employee has a disability, employers have a duty to make reasonable adjustments to avoid them being placed at a disadvantage compared to others. This could mean making adjustments if an employee’s disability means that they are at greater risk from COVID-19.
It is important to note that working arrangements are likely to constitute a PCP (provision, criterion or practice) which may particularly disadvantage an employee who is a member of a protected group (disabled, for example) and so may amount to indirect discrimination which needs to be justified.
Employers will also need to be mindful of the needs of pregnant and elderly employees, or those with pre-existing medical conditions which puts them at greater risk (i.e. vulnerable employees). The best course of action is likely to be for these employees to continue to work from home, where possible. In some cases this may well be until there is an available vaccine or effective treatment for COVID-19.
However, if any employees in these groups wish to come into the office or cannot effectively work from home, employers will need to discuss how this can be done safely. Employers should remember that continuing to exclude such people from the office could give rise to allegations of discrimination.
It is important that all discussions and agreements with employees and decisions made with regard to them are clearly documented.
Employers must first seek to establish exactly why an employee is refusing to return to the workplace and what it can do to address their concerns.
It may be that, even after exploring all of the steps above, an employee still unreasonably refuses to return to the workplace. In these circumstances, it may be open to the employer to take disciplinary action against that employee, up to and including dismissal.
However, employers should tread very carefully as requiring an employee to come back to work, or dismissing them because they do not, may expose the business to claims for unfair or constructive dismissal, or even whistleblowing and discrimination, particularly by those employees considered to be at greater risk of the impact of COVID-19.
If an employee refuses to attend work because they reasonably believe that there is a serious and imminent threat to their health at work which they cannot reasonably avert and the employer terminates employment because of their refusal to attend work – or they resign and claim constructive dismissal because their employer insists that they attend work - that dismissal would be automatically unfair on the grounds of raising concerns about health and safety. There is no minimum service requirement to bring such a claim (employees must normally have at least two years’ continuous service in order to bring an unfair dismissal claim) and no cap on the compensation that may be awarded. It is likely that COVID-19 will amount to a “serious and imminent” threat to health, particularly if the numbers of positive cases of COVID-19 continue to rise. Disciplinary action and dismissal should therefore be a last resort.
It is important to note that employers may also face exposure to personal injury claims from employees who are effectively “forced” to return to the workplace and catch COVID-19 as a consequence (either through contact with people at work, or during the course of their commute). When considering the merits and defence to such a claim, it is likely that the Court will examine the evidence around the need for the individual in question to return to the workplace and the steps taken by the employer to mitigate the risk of infection/transmission.
Finally, it is likely that many employees will continue working from home for the time being. Employers should keep regularly checking in on the health and welfare of those employees.
The Health & Safety Executive has recently issued guidance (there is separate guidance for employers and employees) on “lone workers” (i.e. those working alone – including from home – without close/direct supervision). It includes guidance to employers on how to protect lone workers from stress and other health factors, suggests how to manage health and safety risks, training, supervision and monitoring and work-related violence.
Return to work is likely to be a key issue faced by employers as we emerge from lockdown (or are faced with another lockdown of sorts) in the months ahead. It is important that employers maintain open communication, transparency and a sympathetic approach to employees – and that all decisions and agreements with them are properly documented – when navigating through these difficult times in order to mitigate their exposure to claims.
There is no “one size fits all” solution to these matters and it is important that employers make decisions based on each individual set of facts they are faced with. This will no doubt require significant management time and effort (from managers who are themselves facing similar difficult decisions and stresses), but is critical in minimising business’ exposure to claims.
Niki is a Partner in our Employment team. She often acts in complex cases requiring her to navigate overlapping issues such as equal pay, discrimination, harassment, sickness absence, performance and misconduct. She has particular experience of representing employers and employees in the higher education, retail, media, professional and financial sectors.
Eugenie is an Associate in our Employment team. She acts for a mixture of corporates and private individuals. Eugenie’s experience includes advising on dismissals, negotiating settlement agreements, advising on contractual disputes, including the enforceability of post-termination restrictions and drafting employment contracts and staff handbooks.
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