The Prime Minister's announcement on 10 May 2020 that staff who can't work from home are now 'encouraged' to return to work will come as welcome news to many businesses. General guidance was published on 11 May 2020, followed by sector-specific guidance
However, the guidance leaves many key decisions in the hands of employers, who will need to tread carefully to mitigate the legal risks of re-opening while the Covid-19 pandemic continues. Despite the suggestions in the Government's announcement that staff can return immediately, prudent employers will want to take a measured approach to minimise the risks of disputes with staff, which could be costly, time-consuming and damaging to the business' reputation.
What does the guidance say?
Crucially, the guidance states that staff who can work from home (including many office-based staff) should continue to do so. Staff who are 'clinically extremely vulnerable' who have been told to shield themselves should remain away from the workplace, and non-shielded vulnerable staff should work from home where possible (or with risk mitigation measures in place). Some vulnerable staff will need to be redeployed into alternative roles in order to reduce risks - and where redeployment is not possible, employers will need to assess whether the risks involved in them returning to work are acceptable.
Where workplaces are re-opened, employers need to take steps to ensure that social distancing can be followed as far as possible, minimise crowding and contact, and ensure that hygiene practices can be adhered to. As well as altering working practices of staff, employers will need to assess what risks are created by the activities of customers, contractors and other visitors to the site and put in place measures to mitigate those risks.
Employers whose staff work from home should monitor their wellbeing and keep in touch with them about mental and physical health and security.
Businesses should also read the sector-specific guidelines carefully. Please note that the guidance applies in England only.
What do I need to do before I re-open the workplace?
Employers (other than those with fewer than 5 employees) should produce a written risk assessment prior to re-opening workplaces, to assess what COVID-19-related risks are present and how they can be mitigated. This risk assessment should be provided to employees and the guidance recommends that it is published on the employer's website.
Re-opening a workplace with infection control measures in place (see below) is likely to engage the duty to consult with employees (or elected employee representatives) under the Health and Safety (Consultation with Employees) Regulations 1996 (or the equivalent regulations for unionised workers). Although these regulations are less prescriptive than the collective redundancy consultation rules (for example, they don't stipulate a minimum consultation period), they add a further layer of complexity. Consultation will need to take place before the workplace re-opens, so that any feedback can be considered and taken into account. Employers must therefore factor this into their plans.
Consulting with staff may slow down re-opening, but it could also help to minimise the risk of health and safety issues arising and of claims – an instruction to return to work is more likely to be reasonable where the employer has consulted with staff about risk reduction measures and taken their feedback into account.
What infection control measures should I put in place?
Infection control measures recommended include staggering employee start and finish times, discouraging hot-desking and equipment-sharing, the provision of hygiene facilities (e.g. hand sanitiser) and implementing physical distancing and shielding measures both at work and on public transport. Face-coverings are recommended in enclosed spaces where it is not possible to maintain social distancing (such as public transport).
Staff should be encouraged to walk, cycle or drive to work if possible. Public transport operators will be issued with guidance to improve the safety of public transport but there are already reports of crowding on public transport in major cities and employers may face difficult issues with staff who are unable (or unwilling) to walk or cycle, but who are concerned about the risks of travelling by public transport.
Employers will need to assess all aspects of their premises and working practices and implement distancing and hygiene measures to minimise infection risk. It is up to individual employers to decide what is appropriate in their workplaces.
Will I need to change employees' contractual terms?
Changing start/finish times in many cases will entail contractual changes which require employees' agreement, so will require individual discussions and may need individual agreement. This is likely to include consideration of transport and childcare practicalities.
Do I need to provide face-masks or other personal protective equipment (PPE)?
At present, the guidance contains little detail on provision of personal protective equipment (such as face-masks). Face-masks of the type used in hospitals are not mandatory but face-coverings (which can be made out of cloth) are recommended in enclosed spaces where distancing is impossible. Reliable supplies of PPE have been difficult even for the NHS to obtain. If an employer provides equipment to employees which is defective, the employer will be liable for any harm caused to employees as a result, even if the defect is the fault of a third party.
Employers will therefore need to consider carefully whether face-coverings are appropriate in their workplaces and whether they will supply these to staff. If staff are required to buy their own, this may take their pay below the minimum wage for that pay period if they are paid at or close to the minimum wage, so employers may need to provide an extra allowance to enable them to purchase these.
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 or subjected to a detriment 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 with medical conditions or who are pregnant or older workers will potentially have good reasons for wanting to avoid public transport and physical workplaces. Employers should not forget the risk of unfair dismissal claims from employees with 2+ years' service.
Likewise, schools will not begin to open until June at the earliest, and even then the opening will be gradual. This will create major issues for working parents – particularly as social distancing will make it impossible for many to get help from grandparents or other family members. Some employers may wish to keep such staff on furlough for the time being, bearing in mind the extension of the furlough scheme (see below). Dismissing an employee at this stage for failing to return to work due to such childcare issues would potentially be unfair and discriminatory.
Furlough scheme wind-down: next steps for employers
The Government has announced that the furlough scheme will continue in its current form until the end of July, and then in an amended form. Furloughed staff will be able to return to work part-time from 1 July but employers will be required to contribute to furlough pay on a tapered basis starting from August.
Many businesses which have been able to avoid making redundancies so far will need to consider the need to do so when the scheme ends or when they are required to contribute to furlough pay. The timing issue is particularly acute for businesses which may need to consult collectively over redundancies or changes to contract terms as there are minimum timescales for such consultation.
When do collective consultation obligations apply and what do they involve?
If an employer is proposing to dismiss 20 employees or more at one establishment within a period of 90 days or less, they will need to consult collectively over the proposals. In summary, this requires them to provide written information to and consult with appropriate representatives with the affected employees and notify the Department for Business, Energy & Industrial Strategy of its proposals by submitting form HR1.
Which dismissals need to be counted?
Redundancy in this context includes 'classic' redundancy dismissals and terminations with a view to re-engaging on new terms (but excludes expiry of fixed term contracts on the anticipated date).
A key issue for employers is what counts as an 'establishment' (and so which dismissals need to be counted to trigger the obligation and the minimum consultation periods). An 'establishment' will often correspond with a physical location (e.g. a particular branch) but not in every case – the key legal test is where the employee is 'assigned' to work. This issue is fact-specific and often needs careful consideration.
What is the timescale for consultation?
If the employer is proposing to make redundancies of 20 to 99 employees in 90 days, they must begin the consultation process at least 30 days before the first dismissal takes effect. If the number of dismissals is 100 or more, the minimum period is 45 days. However, consultation must also begin 'in good time' - which means it must begin before the employer has taken any operational decisions which make consultation meaningless.
Employers also need to consult individually with employees who are to be made redundant – the employer may be able to begin this while collective consultation is ongoing but in most cases it is better to wait until the collective consultation process is fairly well-advanced, as aspects such as selection criteria and proposed organisation structure may change as a result of the consultation process.
How should I go about consulting collectively while lockdown/social distancing is in place?
Employers should carefully consider the mechanics of the election and how consultation will work: how will the employer consult with the representatives and how will they in turn discuss the proposals with the affected employees remotely? Although online methods such as Zoom and Teams have become popular during the lockdown, they may not be suitable for workforces with a high percentage of non-English speakers or who do not have internet access at home. Employers should be prepared to make arrangements to ensure that potentially disadvantaged employees can participate effectively, even if this involves additional costs and time.
The election process needs to be fair and confidential – technological solutions may be appropriate providing that they are sufficiently secure and accessible.
Employers whose workplaces remain open or have been re-opened will need to ensure that social distancing and risk reduction measures can be adhered to during consultation meetings.
Can furloughed employees act as employee representatives?
The updated CJRS guidance confirms that furloughed employee representatives will not be regarded as 'working' for the employer during consultation and so this will not breach the conditions of furlough, whether they are an elected employee representative or trade union representative. However, employers should be careful to avoid placing obligations on these representatives which go beyond their statutory role. The HR or management staff who attend the consultation meetings on behalf of the business would, however, probably be regarded as working, so this role should not be undertaken by furloughed staff.
Can I claim reimbursement of termination costs under the CJRS?
The furlough scheme guidance makes it clear that the scheme is not to be used for any statutory redundancy payments (or payments in lieu of notice); seeking to do so could result in clawback of payments and further penalties being imposed by HMRC.
Are there any exceptions to the collective consultation requirements?
There is a limited exception to these obligations where there are special circumstances which render it not reasonably practicable to comply with some, but not all, of the consultation requirements. In this circumstance, an employer is still required to take all steps towards compliance as are reasonably practicable.
'Special circumstances' are not legally defined, but are interpreted narrowly: for example, insolvency is not of itself a special circumstance. The CJRS and government-backed guaranteed loans for business may make it difficult for employers to rely on the special circumstance exception in the event of no or shortened collective consultation. Employers should not assume that they can rely on this defence and, to minimise risk, should (as far as possible) comply with the consultation obligations.
What are the penalties for non-compliance with the collective consultation obligations?
Employee representatives (or employees, if no representatives were elected) can bring Employment Tribunal claims if the employer has failed to collectively consult in line with its obligations. In cases of breach the Tribunal can make an order that the employer pay to each employee a "protective award" of up to 90 days' pay.
Failure to submit the HR1 is a criminal offence punishable by an unlimited fine.
It is therefore in employers' interests to comply as far as possible – specialist advice about the legal and practicalities may help businesses avoid costly mistakes.
This note gives general guidance and an overview but is not intended to be legal advice.
The situation in relation to COVID-19 is developing rapidly: we have sought to ensure that the contents are accurate as at the date of publication but you are advised to check for the latest information.
Public Health England provides public health information and up-to-date information is available here.
Guidance for employers and employees provided by Advisory, Conciliation and Arbitration Service, is also available here.
For any legal advice on specific circumstances please contact your usual Howard Kennedy Employment Team contact.