The BBC reports that it has seen a leaked draft Government outlining measures to enable workplaces to re-open post-lockdown. Infection control measures proposed apparently include staggering employee start and finish times, discouraging hot-desking and equipment-sharing, and implementing physical distancing and shielding measures both at work and on public transport. The Government has received feedback on the plans from trade unions and business groups and is due to announce details of the proposals later this week.
Although businesses will be keen to move on from lockdown, the plans could create a host of legal and employee relations issues for employers, at a time when workforces are already unsettled.
The devil in the detail
The leaked plan apparently recommends that employees who can work from home should continue to do so - so working from home will continue to be the norm for many office workers. However, businesses in sectors such as retail, hospitality and construction will be scrutinising the plans carefully to see if they offer a viable route to re-start business operations.
A key issue will be who bears the risk of potential claims. The plan appears to provide guidance for employers rather than definitive rules - so it is up to employers to decide what arrangements are needed in individual workplaces. The Trades Union Congress has heavily criticised this aspect of the plan as providing insufficient protection for vulnerable workers. The plan also doesn't appear to deal with the issue of employers' liability for any staff who return to work and catch the virus even where their employer has implemented the guidance correctly. Some business groups have already stated that they want certainty that if they rely on Government advice and implement these measures correctly, they will not be held liable for any harm resulting to staff who return to work.
At present, the plan apparently contains little detail on provision of protective equipment (such as face-masks). If this will be required, businesses will want guarantees that they will be able to source safe equipment and guidance as to who should cover the cost.
What happens if staff refuse to return to work?
Although this could potentially be treated as a disciplinary matter, employers will need to tread very carefully. Employees are protected against being dismissed for certain health and safety-related reasons - such dismissals are automatically unfair and, unlike ordinary unfair dismissal claims, the compensation for such claims is uncapped. There are also potential discrimination issues, since staff who are medically vulnerable to coronavirus, pregnant or older will potentially have good reasons for wanting to avoid public transport and physical workplaces. Likewise, it's not yet clear whether schools and childcare settings will have reopened by the time any workplace reopening measures are implemented. If not, that will create major issues for working parents. Some employers may wish to keep such staff on furlough - but this depends on whether the furlough scheme is extended.
The times they are a-changing...
Many staff have contractually-set start and finish times. Changing these will require employees' agreement (and could require collective consultation) and deciding who should be required to start early/later will require difficult decisions balancing business needs against employees' personal circumstances. If school and childcare start times are staggered to reduce infection risks in those settings, that will have an impact on employees' willingness and ability to vary their own hours.
The guidance also suggests that staff who are particularly vulnerable to the virus may need to be redeployed into another, safer role if they can't work from home - again, this would require individual consultation and agreement.
Consultation and risk-assessment
The plan apparently envisages that employers will need to carry out a coronavirus-specific risk assessment and monitor the physical and mental health both of employees in the workplace and those working from home. This appears sensible - and most employers are alive to these issues already. However, employers will also need to consider whether consultation obligations under the Health and Safety (Consultation with Employees) Regulations 1996 are engaged. Although these are less prescriptive than the collective redundancy consultation rules (for example, they don't stipulate a minimum consultation period), they potentially add a further layer of complexity.
Employers' experience with the furlough scheme will make them wary of the Government's plans. The furlough guidance has changed repeatedly and the goalposts have shifted several times. Businesses will need to know that any measures announced have been fully thought-through and will not be changing from week to week, as has been the case with the furlough scheme.
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