The recent announcements from Prime Minister Boris Johnson about initial easing of the lockdown restrictions so that those who could not work from home should be “actively encouraged to go to work” in England puts employers in the position of needing to work out the best way to bring staff back to the workplace over the coming months.
Employers in the construction and manufacturing sectors will probably be the first to make decisions on what a post lockdown workplace will look like, with those in smaller hospitality businesses such as cafes and corner eateries to follow soon after. Here are some issues for employers to consider in deciding how to progress with opening up their workplaces for staff:
1. At-risk employees
For at-risk staff who have received written advice not to leave their home for 12 weeks from 23 March 2020, employers should respect the vulnerability of these employees and allow them to stay at home, furloughed or not-furloughed (details of the HMRC’s Coronavirus Support Scheme can be accessed here).
For those employees who may have ‘at-risk’ conditions but did not receive written notification from the Government encouraging them to stay at home for 12 weeks, employers will need to have good reasons for seeking their return to the workplace, and only do so when they are able to put into place strict social distancing rules.
2. Staff not happy to return to the workplace
For employees who cannot be readily redeployed to work from home, such as construction and manufacturing initially, then smaller retail and hospitality businesses, refusing to return to work would normally be deemed as unreasonable provided all required workplace protections are put into place. For example, such staff would not normally be entitled to sick pay if they were worried about contracting COVID-19 and choose to stay at home.
While current advice from the Government for most employees to work from home essentially overrides common law rights of employers as set out in employment contracts to require staff to work at the reasonable direction of their employer, this situation is not expected to continue indefinitely as the first wave of COVID-19 is tamed and comes under control.
However, instead of playing a heavy hand and directing all staff back to the workplace as restrictions are loosened, it is considered best for employers to consider the individual circumstances of each employee before approaching them with details of their return to work arrangements. Employers should then be prepared to discuss these arrangements on a case by case basis to ensure all reasonable and genuine concerns are able to be addressed.
Don’t forget the extensive range of working safe during the pandemic guidance materials on most sectors of employment as provided by the Department for Business, Energy and Industrial Strategy (BEIS).
3. Potential discrimination claims
Employers could also face allegations they have acted in a discriminatory manner – particularly if it can be seen that they have only kept on those employees who have worked through the COVID-19 crisis, in preference to those who have been furloughed.
For example, a claim for indirect sex discrimination could be raised by female employees who may assert women with child care responsibilities were more likely to be chosen for furlough.
Likewise, a claim for indirect disability discrimination could be raised by employees with underlying health conditions, again because they are more likely to have been chosen furlough as an option during the crisis, and then miss out on positions in their company when a reduced workforce returns to work after the lockdown.
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