Reopening your business?
12th May 2020 by Robin Watson
The Government has released, earlier than anticipated, 8 workplace guides, each providing suggested measures relevant to the specific workplace that employers can put in place, ensuring the safety of workers during Covid-19.
Although the Guidance is referred to as ‘non-statutory’, it will be taken into account when considering existing statutory obligations around health and safety and employment law, so it cannot be disregarded.
How Covid-19 or health and safety measures will impact on existing employment contracts and law still remains unclear. Generally, employees do not need to have two years’ service before claiming on grounds of discrimination, whistleblowing and health and safety. All three grounds are relevant to the Guidance and employers must be careful as workplaces open again.
Following, we have covered off the most likely questions from employers and employees, but only briefly at this stage.
However, if you are in any doubt as to what your requirements are, especially if a disagreement occurs around the Guidance or reopening, we would recommend you seek specialist advice, before it escalates.
Can I just require all staff to return?
We recommend you read and follow the Guidance that is relevant to your industry, which may involve more than one type of workplace.
To help you decide which actions to take, the Guidance states you need to carry out an appropriate COVID-19 risk assessment, in consultation with unions or workers.
Be ready to reassure returning employees how you have made the workplace safe and followed the Guidance. Listen to worries and concerns and maintain an open and continuing dialogue.
The Guidance aside, remember that for some employees, being on Furlough or isolating may have been difficult or traumatic. They may have had a bereavement or been in hospital themselves.
It is important to provide an update to any employee not at work and encourage them to make contact if they are worried. Encourage the use of any counselling service or wellbeing initiative locally too.
What if an employee refuses to return?
The reason is vital. First, talk to the employee and try and establish the reasons, if not clear already. Be mindful of health issues that you may not have been aware of before.
This is especially so regarding mental health that could have developed during Furlough Leave or isolation. Potentially, common health issues can amount to a disability and lead to a claim if not handled appropriately.
It may be necessary to obtain medical evidence or advice so be prepared. Get specialist advice early and especially once you have found out the reasons for the refusal.
Some reasons for not returning could become disciplinary matters, but due to the uncertainty at the moment, it is best to think carefully before commencing such a process.
What if an employee is isolating or shielding?
Neither the Guidance nor the recent announcements regarding easing the lockdowns have changed the need to shield or isolate. However, the existing guidelines about isolating and shielding should be followed.
This includes guidance on whether or not an employee is entitled to be paid or remain on Furlough Leave.
What if an employee refuses just because they are scared of Covid-19?
If you have followed the Guidance and shared the measures you have taken with the workforce and unless there are more steps that you could take, it may be hard to know what more can be done, but ask for views.
It is understandable and reasonable for all staff to feel anxious about returning, but having an open dialogue will help. Ultimately, it may not be reasonable for an employee to simply refuse to return out of fear alone.
However, this is where mental health should also be taken into account and careful consultation with the employee to find out what the problems are. If mental health is a factor, specialist advice should be sought.
What if an employee wants to continue to work from home or flexibly?
This may well be reasonable and before forcing the point, there should really be some valid reason why they must return now. This is especially if they are also caring for children or someone who is disabled, or if they have a health issue or worry.
If performance is a concern, then this should be addressed informally first and a dialogue started about it. It may be that a solution can be found by having a conversation first.
An employer does have the final decision on how and where an employee works, but the interplay with the Guidance, existing employment and health and safety law, means a heavy-handed approach may well end with a claim.
Can I now make people redundant?
The decision to commence a redundancy process is primarily one for the employer. An employment tribunal will always look at the real reason for any dismissal and this will likely be so if redundancy has followed a refusal to return, especially if mental health is involved.
The easing of the lockdown and the Guidance does not mean that an employer is forced to allow employees to return. Sadly, many businesses will have to consider making redundancies.
Covid-19 and Furlough Leave may well become relevant considerations as part of a fair redundancy process. It is hard to see how they will not. The existing obligations that form a fair redundancy process have not changed (other than using remote facilities for meetings).
How does the Guidance impact on Furlough Leave?
You must continue to follow the rules regarding Furlough and what activities an employee can carry out. As part of your risk assessment, it may be sensible to start staggering the return of staff and continue to take advantage of Furlough pay.
Furlough Leave can be seen as another method to keep staff safe and ensure that not all staff return at the same time. This will likely lead to worry and potentially breach the Guidance and your obligations.
We hope the above information has helped clarify the current situation however if you have any specific queries that have not been addressed above, please contact our Employment specialist, Robin Watson on firstname.lastname@example.org or 01202 755202 and he will be happy to help.