The Prime Minister's announcement on 25 May 2020 that retailers can re-open from 15 June 2020, if the Government's five tests are met and if retailers follow the COVID-19 secure guidelines, is good news.
As Helen Dickinson, Chief Executive of the British Retail Consortium, says, retailers should now be communicating with their workforce about their plans for re-opening. Fundamentally, this must include communication with staff about the business' risk assessment and the proposed health and safety measures which will be put in place in line with health and safety laws and the Government's guidance on Working Safely During Coronavirus to protect workers and customers, for which the guidance for shops and branches was updated on 25 May 2020.
Consultation with staff on these issues will be key to addressing concerns staff may have about returning to their workplace. Employees are protected against being dismissed or subjected to a detriment for certain health and safety reasons - such dismissals are automatically unfair and, unlike ordinary unfair dismissal claims, the compensation for such claims is uncapped. Workers - a broader category than employees - also have protection under whistleblowing legislation if they are subjected to a detriment or if (for employees) their employment is terminated if the reason, or principal reason for this, is that they have reported a concern about danger to health and safety.
Retail employers should therefore take care to respond reasonably to staff concerns about returning to work and seek to identify the underlying concerns in each case to respond to these as appropriate. For example, workers who fall within the clinically extremely vulnerable or clinically vulnerable (this includes pregnant women) categories, will have different underlying reasons and concerns about not wanting to return to work than a worker whose primary concern may be the journey to work or that they do not have childcare in place if their child cannot yet return to school.
Consideration should also be given at this stage as to whether consultation with staff is required to seek agreement to any proposed changes to terms and conditions of employment which may be required - either temporarily or permanently - if, for example, shops anticipate a transition period during which they may have reduced opening hours. Until the end of July, the Government's Coronavirus Job Retention Scheme (CJRS) requires that furloughed workers do not do any work whilst on furlough. Further guidance is expected on the CJRS at the end of this month on the terms and conditions for the CJRS between August - October when furloughed workers will be able to return part-time.
For legal advice on specific circumstances, please contact Lydia Christie at Howard Kennedy.