Your questions on re-emergence answered - in depth - Gateley
In depth

Your questions on re-emergence answered

Gateley Legal

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Earlier this month Boris Johnson announced a new slogan and a three-step plan to ease the lockdown restrictions and get the UK back to work. The key message was that employees who could not work from home were being encouraged to return to the workplace.

Given the ongoing concerns over Coronavirus it will be important that every business carries out a health and safety risk assessment before employees return. The Government guidance will need to be taken into account and the necessary measures taken to ensure the workplace is ‘Covid-19 secure’ and employees feel confident enough to return to the workplace.

In this Q & A we address some of the most common issues facing both businesses and employees at this difficult time and suggest practical steps to help resolve the tricky challenges.

Risk Assessments 

  1.     Do we need to carry out a specific Covid-19 risk assessment?

    The Management of Health & Safety at Work Regulations 1999 encapsulate (amongst other things) the duties to carry out a risk assessment of all activities and to keep such assessments under review. If you have fewer than 5 employees there is no legal requirement for this to be in writing however we would still recommend it is documented.

    Within each of the eight sector guidance notes produced by the Government this month, the central foundation of all of the re-mergence strategies is that a workplace should be Covid-19 safe before any employees return to work. This requires the production of a Covid-19 risk assessment on all of your operations before allowing employees to return to the workplace. You should also update all other risk assessments that are already in place within the business (as appropriate) to enable the business to continue operating safely. The HSE, as a regulator, can spot check companies and act on disclosure of risk assessments. If an HSE investigation takes place, it will be the business and all of its directors, officers and managers who would potentially be liable for criminal offences if the workplace is deemed to be an unsafe place to work. 

    It may be that you have physically already carried out the risk assessment by putting in place procedures such as staggered breaks, wearing face masks and providing hand sanitiser or it may be that you need to record this within a risk assessment format. The HSE website contains very helpful risk assessment templates. The Government has stated that it expects all businesses with over 50 employees to publish the results of their risk assessment on their websites. 
     
  2. How can I limit the risk to my staff in the workplace? 

    Social distancing: This is a key requirement in the Government guidance and should be practiced within the working environment where possible. In an office environment this may mean moving desks to allow a two-metre gap between workstations. If this is not possible the use of screens between workstations should be considered. Alternatively, if the entire work force is not needed back in the office straight away then consideration could be given to placing employees on alternate workstations. 

    Welfare facilities: There should be welfare facilities or cleaning stations available in the workspace allowing frequent hand washing or hand sanitising.  Guidance is being published that an hourly hand washing regime is good practice. Windows should be opened rather than the use of air conditioning if possible.

    Shared/communal areas: There should be no gatherings in shared space unless socially distanced. Work cafes, kitchens, coffee stations and vending machines should remain closed, but employees will need to have hot and cold running water and toilet facilities provided and in use.

    Cleaning regime: There should be a strict cleaning regime in place which includes a deep clean after each workday/shift if possible. No equipment should be shared by employees if possible. Cleaning needs to address all areas within a business, especially high contact areas.

    Access around the workplace: Consideration should be given to eliminate the need for touch buttons or buzzers to be used in order to enter the workspace.  Prohibiting or regulating the use of lifts except for those who cannot use stairs, use of staircases and one-way systems will need to be considered. Hand sanitisation on immediate entry to a building, and on exit should be considered, as should restricting movement between floors.

    Car parking: If public transport is to be avoided, consideration should be given for car parking for employees if possible or other alternative travel arrangements. Staggering work times may assist with travel issues.
     
  3. How do I limit the risk to my staff in public facing roles? 

    The duty to safeguard the health, safety and welfare of employees within the workplace extends to third parties and contractors under the Health and Safety at Work Act. A Covid-19 risk assessment should be conducted for any third parties, contractors, customers or service users who may be coming into your work environment and the relevant safe systems of work put in place. If your employees are in a customer facing role and there are customers entering the building then social distancing should be considered along with the use of screens, markings and potential use of PPE (if it is available and your risk assessment indicates that it would be a suitable measure).
     
  4. Do I need to consult with employees or employee representatives about the safety measures we are implementing on the return to work?

    The Government guidance state that employers must consult with the health and safety representative selected by a recognised trade union or (if there isn’t one) a representative chosen by workers. 

    Legally, employers already have a duty to consult with recognised unions about health and safety matters. In terms of non-unionised businesses, the Health and Safety (Consultation with Employees) Regulations 1996 apply. These state that health and safety representatives should be elected by the workforce but if there is no such representative, employers are required to consult with the workforce directly. This means that despite what the Government guidance states, employers can legally consult with employees directly if there are no elected representatives in place. 

    Consultation is required where there is an introduction of any measure at the workplace which may substantially affect the health and safety of those employees. There are further obligations in respect of ensuring the employees have information and training on the risks they face and the preventive and protective measures to control those risks. The HSE has also produced guidance on consulting with employees about health and safety matters. 

    If there is in place a representative body under the Information and Consultation of Employees Regulations 2004 there will need to be consultation with the representatives relating to the health and safety measures.

    From a practical perspective, many employers are likely to face difficulties carrying out formal consultation exercises in the current environment. As a minimum, employers should share their Covid-19 safety proposals with all returning employees, invite comments and consider any responses before they return to work. 
     
  5. Do I need to appoint a specialist third party to undertake the risk assessment or can it be done in-house? 

    There is no obligation to engage a specialist third party consultant to complete risk assessments. It is perfectly acceptable for risk assessments to be completed in-house and the HSE have useful guidance and templates on their website. Many third-party consultants are offering Covid-19 risk assessments but at a premium cost and it may not be a step your business wants to take at this time.
     
  6. Can health and safety risk assessments be relaxed if there is a reduced workforce?

    If you have a reduced workforce you are obliged to consider how your operations are affected and to ensure that staff can still do all the tasks which are expected of them safely – this requires you to consider all elements of your operations and how they might be affected by Covid-19.

    There is also an implied term in every contract of employment that the employer provides a safe place of work. Keeping the safety of the working environment under review will remain a duty for an employer both in terms of employment law and health and safety laws and should not diminish based on a smaller workforce. 
     
  7. Do I need to undertake a risk assessment for employees working from home? 

    Yes. A Display Screen Equipment risk assessment would need to take place and a home working risk assessment is also recommended. The Government guidance reminds employers to consider how it is keeping in touch with such workers and provide support on mental health and wellbeing. The ICO has also published useful guidance relating to the security of data whilst home-working. 
     

    Specific risks and steps

  8. What are my obligations in terms of an employee’s travel arrangements? 

    If the employees are in office-based roles and can work from home, they should continue to do so. The updated guidance from the government is that for those who need to travel, everyone should continue to avoid public transport where possible. If they can, they should walk, cycle or use their own private vehicle. Employers should consider whether additional parking can be made available. Staggering working hours will also help avoid peak times and overcrowding on public transport. There is no obligation to pay for the costs of an employee commuting to work. 

    Travel to and from work is not governed by health and safety law unless that travel is part of an employee’s role such as travelling to a different site or to a meeting. The HSE is however encouraging employers to consider employee travel arrangements as part of their return to work planning, and many businesses are looking at how they can assist their employees in this regard. 
     
  9. What steps should we put in place if social distancing guidelines cannot be followed?

    You should consider whether the activity needs to continue for the business to operate. If so, you need to take steps to reduce the risk. For example, increase the frequency of handwashing and surface cleaning, use back-to-back or side-to-side working, keep the activity time as short as possible, use screens or barriers between people and have fixed teams or partnering. 
     
  10. What PPE equipment, if any, do I need to provide to staff?

    If PPE was used for the work activity before the pandemic, then this should continue to be used. If the role requires close working with other employees and there is no other way of conducting the operation, a risk assessment should be carried out to assess what PPE should be worn to reduce the risk including face masks and single use gloves. 
     
  11. Do I need to provide all my staff with a face mask? 

    The most recent Government guidance is that workplaces should not generally encourage the use of PPE to protect against Covid-19 outside clinical settings or when responding to a suspected or confirmed case of Covid-19. However, it is recognised that wearing a face covering may protect others in enclosed spaces if the wearer is infected. 

    There is no general obligation on employers to supply face masks or coverings. The only exception would be where a health and safety risk assessment concluded that face coverings whilst working together inside would provide more than marginal benefits. If an employee wants to supply and wear their own face mask or covering, we would recommend they are allowed to do so unless that presents a separate health and safety hazard (for example the risk of it becoming trapped in dangerous machinery).
     
  12. Can I insist that all staff wear a face mask in the office?

    In light of the current Government guidance there is some debate about whether it would be a reasonable management instruction to insist on the wearing of face masks at all times. Individual employee concerns and objections would need to be fully considered before any action was taken to enforce a blanket policy. We would suggest a more pragmatic approach would be to invoke a policy whereby employees are issued with a face-mask, required to carry it with them at all times and advised to wear it where practicable with guidelines setting out the particular situations where there may be a set requirement to wear it (for example in lifts, toilets, confined spaces).
     
  13. Where can employees safely take breaks?

    Ideally in outdoor areas which are well ventilated. Communal areas should not be used unless absolutely necessary and a two-meter distance observed. If the communal areas are not large enough, strict guidelines need to be in place, for example only one person can enter the area at one time. Equipment should not be shared including access to hot and cold water and toilet facilities which should be cleaned more regularly. Break times should also be staggered to manage social distancing. 

    Consideration should be given as to whether it would be reasonable to prevent employees going off-site during breaks and lunchtime. The employer should consider factors such as the need for employees to buy food and run errands.
     
  14. Can my staff still use machinery at work?

    Regarding machinery, the employer should do a risk assessment. If work cannot be undertaken in a different way, the use of fixed teams should be considered, as well as cleaning machinery between shifts, use of gloves and hand sanitisation. 
     
  15. What should I do about employees using work vehicles or machinery where more than one person is required at the same time?

    Employers need to risk assess the activity and consider the use of fixed teams. Consider back to back working and cleaning regimes. The use of machinery when more than one person is required should be considered carefully and if the two-metre safe distancing rule cannot be adhered to then the employer should consider these employees being prioritised for PPE. The same applies to work vehicles. Specific guidance has been issued by the Government concerning the use of workplace vehicles, which includes cleaning regimes and preventing, where possible, multiple occupancy/use of the vehicle by different personnel.
     
  16. Can we still have work meetings when employees return to work? 

    The guidance states workplaces should keep employees socially distanced.  This means two metres apart from each other wherever possible. 

    Where social distancing guidelines cannot be followed in relation to any activity, such as meetings, you should consider whether that activity needs to continue for the business to operate. Could team meetings take place via an online resource, such as Zoom or Teams? Time limiting of face to face interactions has also been suggested in the guidance. 
     

    Dealing with specific employee concerns

  17. Can we ask employees who have been shielding to return to work?  

    The Government has produced a list of ‘clinically extremely vulnerable’ people who have been advised to stay at home and shield. The list includes for example those in receipt of organ transplants and people with specific cancers. These individuals should have received a letter or been informed by their GP that they are in this group. It is good practice for employers to ask employees to self-declare if they fall into this category (or the ‘vulnerable’ category dealt with in question 18 below).

    If they do not wish to return to work and home working is not possible, they should not be forced to return to the workplace. In most situations such employees could be furloughed under the Job Retention Scheme. Alternatively, they would qualify for statutory sick pay (and potentially enhanced pay if provided for under the contract).   

    It should be taken into account that employees in this category are likely to be ‘disabled’ under the Equality Act 2010 and have the right to bring claims for discrimination if subjected to any detriment and/or if the employer fails to make reasonable adjustments. 
     
  18. What should we do in in relation to those considered ‘vulnerable’, including those with pre-existing health conditions, pregnant women and the over 70s? 

    Whilst the ‘clinically extremely vulnerable’ have been advised to remain indoors for at least 12 weeks, this wider group identified as ‘vulnerable’ may continue to travel to work if home working is not possible. They have been advised by the Government to take particular care to minimise contact with others outside their households. 

    Such individuals should be offered the safest available on-site roles which enable social distancing measures to be observed. If the role involves working within two metres of others, the employer needs to assess whether the level of risk is acceptable. If the risk of infection is too high, the individual should not be asked to return to the workplace. Again, alternative arrangements need to be considered such as furlough, taking holiday or unpaid leave.   

    Government advice is that generally, pregnant women do not appear to be more likely to be seriously unwell than other healthy adults if they develop coronavirus at least not before their third trimester - after 28 weeks.

    It will be important that “particular care” is taken to ensure that all pregnant employees are able to adhere to social distancing measures if required to attend work. This will need to be addressed in a health and safety risk assessment for the workplace. 

    If risks cannot be removed the employee may need to be suspended on full pay during her pregnancy.

    In relation to the wider category of employees with underlying health conditions they will meet the definition of being ‘disabled’ under the Equality Act 2010 if they have a long term condition that has a substantial impact on their ability to carry out day to day activities. Consideration would need to be given to making reasonable adjustments if the employee was at a disadvantage due to their disability which may include restricting some duties. Taking action against a disabled employee who refuses to carry out work due to concerns relating to coronavirus and their disability could also amount to discrimination arising as a consequence of their disability unless justification could be shown.

    Further, forcing an employee to attend work in this situation could give rise to a claim for constructive dismissal if the employee resigns in response. If they are dismissed for refusing to come into work, they could have a claim for automatic unfair dismissal (this is dealt with further at question 20 below).  
     
  19. What should I do if an employee is concerned about returning to work because they live with a vulnerable person? 

    The Government’s shielding guidance states that people who are living with those who are shielding should do what they can to support them in shielding and to carefully follow guidance on social distancing. Although it does not expressly require someone in this situation to stop working it is expected that employers will react to such concerns with sensitivity. 

    If homeworking, or redeployment into a role that is suitable for homeworking, can be arranged then this is likely to be the obvious solution. 

    If not, the employee’s reasons for being reluctant to attend work should be carefully considered in case there are any discrimination issues.  Reassurances should be given as to the safety measures that have been put into place. If the employee is still reluctant, unpaid leave may be agreed or it may be possible to furlough the individual. As a last resort if public health advice is that the employee could be reasonably asked to attend work, it may be that this is a misconduct issue and non-attendance at work may amount to unauthorised absence. There is a risk though that any such action will lead to claims based on the employee’s right to raise issues relating to health and safety (see question 20 below for further details). 

    There are laws to prevent associative discrimination where an employee is associated with someone who has a disability. Although these laws do not require an employer to make reasonable adjustments for the employee (as they do not have a disability themselves), the employee is still protected from direct discrimination, harassment and victimisation resulting from their association with a disabled person. As such, employers should take steps to ensure that employees do not suffer repercussions due to their association with a vulnerable person. 
     
  20. How do we deal with an employee who refuses to attend work if they have not been advised to shield and they are not in the Government’s list of ‘vulnerable’ people?

    If it is not possible for the employee to work from home, the employer should explore with the employee the reasons for their concerns. The employee should be reassured that all reasonable steps have been taken to minimise the risk of infection (as identified in the risk assessment). 

    If the employee still refuses, the employer will need to consider the public health advice in place at the time, the specific reason that the employee is concerned about attending work and whether it would be discriminatory to refuse home working or to take disciplinary action against the employee. 

    If the public health advice is that it is reasonable for the employee to be asked to attend work (and there are no discrimination issues), it is possible that the employee’s refusal to attend work amounts to a failure to follow a reasonable management instruction and also unauthorised absence. However, caution would need to be exercised before disciplinary action was taken. If the employee reasonably believes they would be in serious and imminent danger which they could not reasonably be expected to avert, regardless of whether the risk is real or not, any dismissal which followed could be automatically unfair under section 100 (1)(d) of the Employment Rights Act 1996. These types of claims are available from day 1 of employment and do not require the usual 2-year qualifying period. Similarly, an employee is protected against suffering a detriment for taking steps to protect themselves or others (section 44 of the Employment Rights Act 1996). 

    The danger posed by Covid-19 generally is undoubtedly “serious and imminent”. The key question will be whether the employee’s concerns about the potential danger in the workplace was a reasonable one or not. An employer who has taken all reasonable steps to mitigate the risks and who communicates these clearly to employees will be in a better position to argue that the employee’s concerns were unreasonable. However, if there is a high risk of contracting Covid-19 in the workplace and the employer has not taken appropriate steps to mitigate the risk (and/or explained such steps to its employees), it is highly likely that the employee would be protected under these provisions. 

    Arguably, if the employee’s concerns relate to travel to work (such as the use of public transport) sections 44 and 100 above will not apply as it is not a danger in the workplace. However, employers should still discuss such concerns with employees and consider whether steps can be taken to alleviate them in order to reduce the risks of other claims. 

    It is also possible that concerns raised by an employee could amount to a protected disclosure thereby attracting whistleblowing protection.

    For these reasons, it is advised that dismissal is only considered as a last resort. It may be that alternative arrangements could be agreed in the short term (for example, taking holiday, unpaid leave or potentially furlough the employee).
     
  21. Do I have to pay an employee if they refuse to attend work because they have concerns about coronavirus?  

    Depending on the terms of the contract of employment it may be possible to withhold pay on the basis the employee is absent without authorisation. 

    However, consideration will need to be given to whether the employee has reasonably raised safety concerns or highlighted that they believed they would be at risk of serious and imminent danger if they return to work. This could be a protected act and it might be possible that a reduction in wages in these circumstances could amount to an unlawful detriment under section 44 of the Employment Rights Act 1996 (see question 20 above) and/or a detriment because of whistleblowing. 

    If pay is withheld, the employee should be told in advance and their response considered. It may be that the health concerns can be further addressed and alleviated. It is also possible that the employee will respond with a sick note to explain their absence, for example on the grounds that they are suffering from stress. In that situation, the employee will be entitled to sick pay in the normal way and their absence should be dealt with in line with standard sickness procedures. 
     
  22. If an employee refuses to attend work due to health reasons, can I ask for medical evidence? 

    Consideration should be given in the first instance to the company’s sickness management policy and the provisions in place regarding medical evidence. Most policies will allow an employee to self-certify for the first seven days of illness and require a doctor’s note only from the eighth day. 

    Anyone displaying coronavirus symptoms can request an isolation note from NHS 111 or their GP even if they are self-isolating because of Government advice or to protect a high-risk individual in their household. 

    If an employee is self-isolating but able to work from home, they will be entitled to their normal full pay. 

    If an employee is self-isolating or shielding and unable to work from home, they will be deemed incapacitated and entitled to statutory sick pay (and any enhanced contractual sick pay if applicable).
     
  23. How should I manage employees who have difficulty working because of childcare issues?

    Whilst schools and nurseries are closed, other than to children of key workers, employees with childcare commitments may need some flexibility in relation to working arrangements. You should aim where possible to reach agreement with the employee as to how they will carry out their duties.  Homeworking should be considered where possible with reduced or flexible hours. 

    If homeworking is not possible you may allow the employee to remain furloughed as the reason for the childcare issue is related to Coronavirus.

    At the end of the furlough period if there are still childcare issues the employee may be entitled to take time off work to care for their child. There is a statutory right to unpaid time off for dependants which would be likely to apply where an employee is dealing with an emergency in relation to their childcare. Longer term, the employee could also use their right to take unpaid parental leave. The statutory right is for up to 18 weeks unpaid leave to care for a child under 18. In default the maximum period per year is 4 weeks but agreement may be reached to extend this. Alternatively, an agreement can be made to allow unpaid leave for a certain period of time or of course the employee may use their annual leave entitlement. Employers should be particularly mindful of potential claims for indirect sex discrimination when dealing with requests for flexibility for childcare reasons.  
     

    Dealing with outbreaks in the workplace

  24. What do I need to do if one of my employee’s contracts Covid-19 or has symptoms?

    An employer has a duty of care for the health and safety of all their staff and employees. 

    It should be made clear to all employees that if they have symptoms, they should report this immediately. The employee should be sent home from work straight away and told to self-isolate in line with the current Government guidance. The employee will be entitled to statutory sick pay (and potentially company sick pay depending on the terms of the scheme). 

    In a non-healthcare setting, there is no mandatory requirement to close the workplace if someone has contracted Covid-19. Thorough cleaning of the premises with appropriate PPE worn should take place before employees and customers are able to re-enter the premises. Any closure should therefore be minimal.
     
  25. Can I tell other employees if a staff member is unwell with Covid-19 symptoms?

    There is ICO guidance on this “Data protection and coronavirus - what you need to know”. The ICO’s view is that, yes, you should keep staff informed about cases in your organisation. However, you should only provide information that is “necessary” to preserve health and safety. In most cases it will not be necessary to name the individual (unless it is needed for tracing purposes). 

    A Link to the ICO guidance can be found here.
     
  26. What do I have to pay employees if we do need to close temporarily?  

    Any employees who are self-isolating or have contracted Covid-19 will remain on sick leave and the same pay requirements will apply. 

    Any employees who are able to work will be entitled to full pay. Employees unable to work from home will also be entitled to full pay unless there is a clause in the contract saying they are not entitled to be paid in such circumstances. There may also be the right to lay off temporarily in the contract. The other alternative is to agree a temporary reduction in pay with the employees (or recognised union).  

    If the Coronavirus Job Retention Scheme (CJRS) is still in place when the workplace has to close, the employer could apply under the scheme and furlough employees with agreement. 
     
  27. Would we need to make a report under RIDDOR? 

    The HSE have issued updated guidance on how to report Covid-19 related accidents at work.

    You must only make a report under RIDDOR (the reporting of injuries, diseases and dangerous occurrences) Regulations 2013 when there is an unintended incident at work which has led to someone’s possible or actual exposure to Coronavirus. 

    HSE guidance suggests there are 3 possible circumstances where Covid-19 may be reportable under RIDDOR as a dangerous occurrence:-

    - ​​​​​a worker has been diagnosed as having Covid-19 and there is reasonable evidence that it was caused by exposure at work. This must be reported as a case of diseasa worker dies as a result of occupational exposure to Covid-1

    - a worker dies as a result of occupational exposure to Covid-19;

    - if something happens at work which results in (or could result in) the release or escape of Covid-19 (e.g. a lab worker accidentally smashing a glass vile containing the virus leading to exposure).

     
  28. Is an employee who is experiencing mild respiratory symptoms but has not been diagnosed with Covid-19 entitled to sick pay?

    Displaying symptoms is sufficient without a diagnosis. If the employee is unable to work from home, they should be treated as on sick leave and entitled to statutory sick pay or any contractual sick pay applicable.
     
  29. Is someone who has been diagnosed with Covid-19 likely to be disabled under the Equality Act 2010? 

    The Equality Act 2010 defines someone as disabled if an impairment has a long-term substantial impact on their ability to carry out normal day to day activities. In this sense “long- term” is regarded as lasting or likely to last 12 months or more or for the rest of the individual’s life. As the long-term effects of coronavirus are not yet known, it is difficult to say with certainty whether it would fall within the definition of a disability for the Equality Act 2010. It is certainly possible that some of the more serious cases which have resulted in lengthy periods in hospital will have long lasting effects and will meet the legal definition of disability. 
     
  30. What adjustments (other than working from home) might an employer have to make for someone who has had coronavirus?

    The employer should discuss with the employee whether there are any adjustments they require.  These may include for example a phased return to work, a temporary reduction in hours and/or duties and allowing time off for further follow up treatment and hospital appointments. 

    In order to better assess what adjustments would be appropriate advice should be obtained from Occupational Health and/or the employee’s GP.
     
  31. What do I do if one of my employees lives with someone who is suspected to have or has Covid-19?

    The employee will need to self-isolate for 14 days in accordance with the Government guidance and should not attend work. 

    The amended Statutory Sick Pay Regulations provide that the employee will be deemed incapable for work and entitled to statutory sick pay. This may extend to contractual sick pay if applicable. However, if the employee is able to work from home, they will be entitled to full pay.
     
  32. Can I test employees for Covid-19 if tests are available?

    The ICO has published “Workplace testing – guidance for employers”.

    This confirms that testing may be carried out, but employers should carry out a data protection impact assessment to assess whether the processing is necessary and proportionate. Most employers will be able to establish that testing was necessary to comply with health and safety obligations, however, employers should also consider whether other measures could achieve the same result (for example, employees taking the test themselves). The guidance also highlights the importance of transparency and being as open as possible with employees about what information is being processed. Employers are encouraged to discard negative results immediately.
     
  33. What are tracing apps and how can I use them?

    Whilst the Government is trialling the use of a tracing app (already being used in other countries) the wider implementation of a contact tracing app in the UK is likely to require further advice from the Government and the Information Commissioner’s Office. 

    Once in place, an option may be to ask employees to voluntarily self-declare if the app shows they have been in contact or close proximity with an infected person. Further guidance will follow once provided by the Government and relevant bodies. 
     
  34. What is the overall risk to directors and officers should an employee allege s/he contracted Covid-19 whilst at work or worst-case scenario, if an employee dies of Covid-19 and has been at work?

    This is an extremely difficult question to answer as the worst-case scenarios would be a potential investigation and prosecution by the regulator (typically the HSE) for gross negligence manslaughter against an individual director or officer, or a corporate manslaughter investigation against the corporate business. 

    For any criminal prosecution to be successful, causation is potentially going to be extremely difficult in current circumstances particularly as there is evidence that Covid-19 can stay on surfaces for 3 days and, for instance, it is possible people can contract it if they handle post coming through their door or if they are in a supermarket and someone in the next aisle sneezes etc. We anticipate that the HSE will only proceed with full investigations and future prosecutions for businesses who have clearly ignored all government guidance, made no effort whatsoever to make the workplace safe and therefore put employees at risk by requiring them to come into work. 

    In the event of a HSE investigation, the burden is on the employer to prove that it had put in place all necessary policies, procedures and practices to make the workplace a safe one.  
     
  35. Will my employer liability insurance cover me if an employee contracts Covid-19 as a result of attending the workplace?

    This will depend on the wording in the specific policy. However, our experience is that most insurance companies will dispute that Covid-19 related issues are covered under the terms of the policy. This is likely to be the same in relation to Directors and Officers insurance where that is in place. 
     

    Ending furlough and changing terms

  36. How do I end a period of furlough and bring employees back to work?

    This will depend on the terms of the furlough agreement. If it is silent on this, you should provide a reasonable period of notice to the employee that they are required to return to work. There is no guidance on what is reasonable – we would suggest that a minimum period of 3 days’ notice is given. We would also suggest that where employees have other commitments (such as childcare) they should be given more time to arrange cover.
     
  37. We don’t need all our employees back at work yet. How do we choose which employees to leave on furlough? 

    This will necessarily involve a selection process of some sort. How that is carried out will primarily be up to the employer, taking into account the requirements of the business. However, care should be taken that the decision does not lead to any employees being treated less favourably due to any protected characteristics, for example age, disability etc.  We would recommend documenting the reasons for the decisions in case any employees do bring subsequent claims.

    Employers should also be mindful of employee’s personal circumstances which may cause them difficulties in returning to the workplace in the short term and try to accommodate these where possible.  
        
  38. Can I ask employees to use holiday as part of a phased return to work?

    Yes, it is possible to do this. The contract of employment or holiday policy may provide that notice can be given to require employees to take annual leave. In the absence of any such contractual provision the default position under the Working Time Regulations 1998 is that an employer may require employees to take annual leave by giving twice as much notice as the period of annual leave that is required to be taken. For example, if the employee is to take 5 days leave you will need to tell them at least 10 days before.
     
  39. How can I change hours of work to allow staggered hours?

    You should try to agree any changes with the employee or with the union if one is recognised. If there is an express clause in the contract which allows for terms to be varied this may be relied upon for small changes, for example in relation to start times. However, reliance on such a clause to make significant changes is likely to be challenged.  

    Where the change cannot be agreed, an option would be to dismiss and re-engage on the new terms. However, whether the new terms are accepted or not, the employment has still been terminated therefore employees with at least two years’ service could bring a claim for unfair dismissal and/or redundancy depending on the circumstances. 

    As to the fairness of the dismissal, an Employment Tribunal would take into account factors including whether the employer had a sound business reason for the change, the employee’s reasons for refusing the change, the consultation process, any alternatives to the course being taken and the reaction of other employees.

    It is also important to consider that where there are 20 or more contracts terminated around the same time it may trigger collective consultation obligations.

    Another option is to impose the change and see if the employee continues to work under the new terms. If the employee does not object and continues to work under the new terms it is possible to argue they have impliedly accepted the changes. However, this approach does carry with it the risk that claims could be made for unlawful deduction from wages or even constructive dismissal should the employee resign in response to a fundamental breach of their contractual terms.  Express agreement is always preferable.

    Consideration should also be given as to whether any changes to terms may have a discriminatory impact. It might place workers with childcare responsibilities in a difficult situation if working patterns are varied which could indirectly discriminate against women. Any changes of this nature that place some at a disadvantage will need to be objectively justified. 
     

    Dealing with health and safety concerns and harassment

  40. What should I do if an employee contacts me with health and safety concerns?

    Concerns should be taken seriously. A meeting should be arranged with the employee (preferably remotely or with social distancing) to listen to their concerns, investigate as appropriate and make a decision on the concerns raised and whether action needs to be taken as a result.  Any health and safety policies you have in place should be considered and the impact on any risk assessments. 

    As referred to above, there are specific provisions in the Employment Rights Act 1996 which protect employees from being treated detrimentally or being dismissed from taking certain action in relation to health and safety concerns. It is also highly likely that raising such a concern could amount to a ‘protected disclosure’ under the Employment Rights Act 1996 and the individual would then have potential whistleblowing claims if they are treated to their detriment or dismissed on the grounds of/because of raising the concern. 
     
  41. What should I do if an employee breaches health and safety measures we have put in place?

    The reasons for the changes that have been made to working practices should be clearly explained to the employees. It will be important that they realise they are for the health and safety of all employees and that any breach of these new procedures will be treated as a potential gross misconduct offence. One option is to set out the new procedures and rules in a return to work form which the employee will need to read and sign to acknowledge that they understand. It will be necessary to communicate and provide training, as appropriate, in respect of the new procedures.
     
  42. How do I manage any harassment of employees or customers because of their race or ethnicity following increased hate crimes connected to Covid-19? 

    The employer can be held liable under the Equality Act 2010 for the harassment by one employee towards another during the ‘course of employment’. This definition has been interpreted very widely and can even extend to incidents taking place outside the workplace and outside normal working hours. The employer’s knowledge of the harassment is not relevant. In order to defend a claim, the employer would need to show they took all reasonable steps to prevent discrimination. 

    Making employees aware that the company has a zero-tolerance policy towards harassment or any form of discrimination and making them aware of any anti-harassment or equal opportunities policies is a good starting point to remind employees of the duties and expected behaviour at work. Any acts of harassment should be taken seriously and actioned promptly through the employer’s usual disciplinary process.

More information

For more information regarding re-emergence contact our experts listed below, and for more coronavirus related insights visit our Cornavirus hub.

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