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COVID-19: FAQS for the Return to Work

Posted on 25 June 2020

This page was last updated on 25 June 2020.

The following is a Q&A for employers, individuals and employees on guidance regarding the easing of lockdown and the return to work. 

Return to the Office

Employment
Health & Safety
What are an employer's legal obligations?

An employer must take reasonable steps to set up, and implement, a safe place and safe system of work so that it does not breach its statutory duties. Failing to do so could amount to a criminal offence and an unlimited fine (although Sentencing Counsel guidelines suggest this will not exceed £10 million, which would be reserved for the most serious breaches). Directors and officers can also be criminally liable for breaches of Health & Safety obligations.

These obligations apply in relation not just to an employer's employees, but also those not in their employment (such as members of the general public) who may be affected by their business.

Employers are also required to undertake a risk assessment of their business, which must be regularly updated to reflect any change in circumstances and to consult with their employees (see below).

What Government guidance is currently available to employers?

Whilst the current guidance remains that employees should continue to work from home when they can, the Government has published sector specific guidance for employers aimed at assisting employers making appropriate changes to the workplace. The Government has also set out five practical steps for businesses preparing for staff to return to work including re-designing workspaces to maintain social distancing and enhancing cleaning processes. You can find the link to the guidance and the relevant guides here. Employers should download the notice included in the applicable guide to demonstrate that they have followed the guidance and they are taking reasonable steps to ensure a safe system of work.

However, it is important to remember that this guidance does not replace an employer's legal obligations. The Government has made it clear that the guidelines only hold the status of non-statutory guidance. Compliance with the guidance in itself will not therefore necessarily mean that an employer is complying with its full legal obligations in respect of Health & Safety – but a failure to comply with the guidance is likely to indicate that the employer is also failing in their statutory duties.

What should an employer consider when carrying out a COVID-19 risk assessment?

The Health and Safety Executive ("HSE") sets out guidance for carrying out a risk assessment here. Employers need to bear in mind what they can do to avoid employees risking infection, such as allowing people to continue to work from home where possible.

Where employees need to attend the workplace, employers should consider how they can best adapt their workplace to abide by social distancing measures and reduce the risk of a virus outbreak. The Government published workplace specific guidance on 11 May, and this was updated on 24 June to help businesses prepare their workplaces so that they can operate safely.

Employers must consult their workers or trade unions to establish what guidelines to put in place (see below). If possible, employers should publish the results of their risk assessments on their website and the Government has stated that it expects all businesses with over 50 employees to do so.

Do I need to consult with employees in relation to plans to re-open the workplace?

Employers have a duty to consult their staff on health and safety. 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 - employers cannot decide who the representative will be.

Employers must provide such information is necessary to enable employees or their representatives to participate fully and effectively in any consultation process.

If I have done a risk assessment, consulted with employees and issued guidance to employees, is that enough to satisfy my Health & Safety obligations?

No. Employers should remember the ongoing nature of their duties, and keep their procedures under review, making any changes where necessary.

Simply issuing guidance to employees is unlikely to amount to providing a safe system of work: the employer must also provide the resources necessary to carry it out.  For example, if an employer instructs employees to wash their hands regularly, it should also provide the appropriate amount of washbasins, soap and hand drying options throughout the workplace to enable employees to comply.

Employees must also be trained on any process or guidance which is introduced, to ensure that they are aware of what is required of them and the steps they need to take to protect themselves and others.

Can we require employees to submit to COVID-19 testing?

Employee consent will be required in order to administer any testing, including taking temperatures. To proceed without consent could amount to a repudiatory breach of contract and potentially assault if a temperature check is carried out against an individual's will.

Employers also need to give consideration to the personal data they are storing about their employees, see section on Data.

Practical health and safety changes an employer might have to make to the workplace

The following is a list of suggestions of steps an employer might consider taking, depending on the nature of the business and taking into account Government guidance.

Hygiene

  • Provide adequate volumes of hand sanitiser, and disinfectant wipes for computers and phones
  • Ensure strict cleaning rules are adhered to, and that deep cleans are carried out regularly
  • Consider providing personal protective equipment ("PPE") to employees
  • Do not allow 'hot desking'
  • Have a dedicated phoneline/email where employees can alert the employer if they are displaying symptoms of COVID-19, and which colleagues they have been in contact with recently
  • Consider how waste disposal will work, particularly in relation to PPE

Entering and exiting the workspace

  • Checks at the entrance to the workspace, such as taking employees' temperatures
  • Limit the number of people allowed in lifts and encourage use of stairs
  • Stagger start, lunch, and finish times to avoid overcrowding in the workspace

Ensuring physical distancing between employees in the workspace

  • In office spaces, ensure that desks are at least two metres apart. If this means reducing the number of desks available, consider rotating staff who work in the office (but note that hotdesking is not advisable). If certain members of staff can work effectively home, allow them to do so
  • In other workspaces, such as retail, limit the number of staff allowed in certain areas, such as at till kiosks or serving areas
  • Limit the number of people allowed in confined spaces, such as meeting rooms, and the time employees can spend in these places
  • Establish a one-way system of movement for employees where possible

Communal spaces and facilities

  • Strictly limit the number of people allowed in communal spaces, such as canteens and kitchens
  • Shut down other communal facilities, such as gyms
  • Prohibit the use of shared equipment, such as cutlery, crockery and stationery

Non-employees in the workspace

  • Limit clients entering the workspace to essential visits only, and hold meetings virtually if possible
  • In retail spaces, limit the number of customers allowed in to the workspace at one time
  • Have appropriate signage asking non-employees to respect social distancing measures
  • Encourage greetings other than handshakes
  • Provide appropriate PPE to non-employees
  • Consider installing screens at service points

How should an employer monitor the effectiveness of its measures?

  • Regular surveys allow employees to make suggestions on the adequacy of current measures, and suggest improvements going forward
  • Consult with representative bodies (staff consultative committees, recognised trade unions), where appropriate, before re-opening and on a regular basis after re-opening
  • Set up a dedicated email/telephone for employees to contact if measures need to be addressed urgently
  • Provide assurances that employees raising concerns will be free from reprisal, and publicise (and introduce, if necessary) a whistleblowing policy
  • Review policies and risk assessments on a regular basis

 

Employment Law
If an employee has had COVID-19, are they likely to be disabled under the Equality Act 2010?

Whilst medical evidence on COVID-19 is still developing, the virus itself is unlikely to constitute a disability.  However, the long-term effects of the virus on people who have suffered severe cases (i.e. those hospitalised and/or admitted to intensive care) may lead to long-term impairments amounting to a disability under the Equality Act 2010.

As a result, the employer should be careful to make reasonable adjustments for employees that have had severe cases of COVID-19. Dialogue between the employer and employee should help identify what measures, if any, are appropriate for the individual employee's current condition (for example, a gradual/phased return to work). They should keep arrangements under review in case any problems arise in the future.

How should an employer support employees who are considered 'clinically extremely vulnerable'?

The Government outlines those classed as 'clinically extremely vulnerable' here, and employees falling in this category may well also be disabled under the Equality Act 2010. The Government strongly advises they should not work outside the home and should 'shield' at home until at least 31 July.

Compelling a 'clinically extremely vulnerable' employee to come to the workplace before the end of July, and potentially even after some further easing to the lockdown restrictions, could potentially lead to claims under both discrimination and/or health and safety law.

How should an employer support employees who are considered 'clinically vulnerable'?

'Clinically vulnerable' people are listed here. They are distinct from those considered 'clinically extremely vulnerable'.

However, a 'clinically vulnerable' employee may also be disabled under the Equality Act 2010. Consequently, employers should talk to an impacted employee, undertake risk assessments and (if needed) obtain relevant medical evidence to identify reasonable adjustments that can help an employee safely return to work. The Government has advised 'clinically vulnerable' (but not 'clinically extremely vulnerable') individuals to take extra care in observing social distancing and employers should help them to work from home, either in their current role or in an alternative role. If 'clinically vulnerable' individuals cannot work from home, they should be offered the option of the safest available on-site roles, enabling them to stay 2m away from others. If they have to spend time within 2m of others, employers should consider whether this involves an acceptable level of risk and should consider their specific duties to those with protected characteristics, including, for example, expectant mothers who are entitled to suspension on full pay if suitable roles cannot be found.

If an employee wants to remain at home because they live with a 'clinically vulnerable or 'clinically extremely vulnerable' person, what should the employer do?

The employer should allow this, at least in the short term, if other arrangements are not possible. If an employer dismisses an employee because they refuse to come to work in this situation, it may give rise to an automatically unfair dismissal.

Consider each case on its merits. For example, one employee may be able to isolate him/herself from the vulnerable person if they return to work, and significantly lower the risk of any infection, but this may be impossible for other employees. Particular attention should be paid to people who live with 'clinically extremely vulnerable' individuals.

Can an employer dismiss, or refuse to pay, an employee who does not come to work because of COVID-19?

In theory, yes, but if the employee reasonably believes that the threat posed by COVID-19 is serious and imminent, and that it cannot reasonably be controlled, then any dismissal or detriment is likely to be unlawful.

These cases will be fact-dependent, and automatically unfair dismissals may occur in cases where employees are 'extremely vulnerable' or 'vulnerable', or if the employee lives with someone in that category.

What are an employer's obligations towards pregnant women?

Pregnant women are in the 'clinically vulnerable' category. As such, employers should follow the guidance for 'clinically vulnerable' people, (please see 'How should an employer support employees who are considered 'clinically vulnerable'?' above).  Of course, the usual rules relating to the treatment of pregnant women will also continue to apply.

What about employees who are not able to work because they have no available childcare?

Employees are entitled to take reasonable time off for dependants. Employers do not have to pay employees for such periods of leave. Employees do not have to give advance notice, and this type of leave is designed to help parents deal with emergency situations. However, it is not designed to allow employees time off in the medium to long term.  Alternatives, including taking annual leave, should be discussed with the individual.

Employees are also entitled to take up to 18 weeks of parental leave per child. Employers do not have to pay employees for periods of parental leave. However, advance notice is required.

Employees are protected from detrimental treatment by their employees because they have sought to take time off work in circumstances where they have a statutory entitlement. A return to work policy which places a group of employees at a particular disadvantage (such as, for example, women) may constitute indirect discrimination.

We have imposed a recruitment freeze, but can we also stop those we have already offered jobs from joining us when we re-open?

If a new joiner is not needed at the current time, you may decide to defer the start date. If a specific start date has already been confirmed in the contract then the change should be agreed with the employee.

If a job offer has been made but not accepted, the employer can normally change it unilaterally or withdraw the offer altogether without obligation, provided this is communicated before the individual purports to accept it. However, if the employee has accepted the offer a contract will usually have been formed and so if the employee does not agree to defer the start date, or if the business decides to dispense with the role completely, it needs to terminate the contract. In most circumstances, this can be done by paying the notice under the contract.

Can we postpone pay rises and bonuses?

Pay rises are rarely contractual and even if notified, unless a pay rise has already been agreed, deferring it should be straightforward. Many bonus schemes are discretionary and the clauses governing such schemes normally give the employer absolute discretion both over the amount of bonuses and whether they are paid at all. Even contractual schemes may contain provision for the employer to terminate or amend the scheme, so it may be worth checking the precise wording of the scheme rules. Where payments are contractual then reducing or deferring will need to be agreed with the employee.

Can we force employees to take holiday?

Yes, but you are required to give double the amount of notice as the amount of holiday you wish them to take. For example, if you want them to take one week's holiday, you need to provide a minimum of two weeks' notice.

We need to re-open our workplace, but we do not need our employees to work full time. Can we bring them back part-time and reduce their hours and pay?

It is unlikely that your employment contracts contain a right to do this, and so these changes have to be agreed with employees. Some may be willing to agree, particularly if the change is not significant (a four day week for example) and/or is agreed for a short period of time. Others may be reluctant or simply unable to agree because of their personal circumstances.

In order to push through a contract change, you would need to consult with employees and, if there is still no agreement, dismiss and offer re-engagement on the new terms. You would need to show sound business reasons for pushing through a change of terms (for most, the current crisis will be the reason) and pay notice. If there are 20 or more employees at risk as a result of these changes, further obligations apply (see 'If we need to reduce the hours for a large number of people, is the process the same' below).

You may also be able to use the flexible mechanism within the updated Cornonavirus Job Retention Scheme so that employees work some days but remain furloughed when they are not working. See our employer FAQs.

If we need to reduce the hours for a large number of people, is the process the same?

If you are proposing that 20 or more employees could be dismissed as a result of this process, then you will also need to go through collective consultation with specially elected employee representatives (or the union or an appropriate representative staff body if there is one) for at least 30 or 45 days (depending on the numbers).  

Now that our workplace is re-opening, we have been forced to consider redundancies as a last resort.  What are our obligations?

See our employer FAQs.

 

 

Cyber
What data issues should I be cognizant of as teams return to office working?

Businesses have made efforts to secure home workers, but it is no secret that exceptions have been made; organisations have quite rightly relaxed corporate restrictions around things such as the use of personal IT, and the movement of corporate data, recognising that exceptions to policies are preferable to a paralysed workforce. The clearest example of the consequences of this necessary relaxing of controls will be found in the spread of confidential data, and businesses will now need to agree how this data is brought back onto corporate systems.

It is inevitable that data will have spread beyond corporate remits. Personal email accounts, file sharing applications and even instant messaging clients are likely to have been used. This presents two challenges; firstly, repatriating data - getting this data back under corporate control as the return to work progresses, and secondly dealing with the issues this data may bring back in the form of malicious code in files.

What should we be doing to facilitate this move of data back to internal systems?

For staff that have not taken the opportunity to migrate data back proactively prior to a return to the office, organisations may well find their users unable to access materials that were generated outside of the corporate perimeter while working from home. Organisations may need to consider amnesty periods; timeboxed periods where platforms typically blocked within the organisation are opened to allow the retrieval of data to work devices.

Careful messaging will be needed around this activity; if restrictions are going to be restored in the future, staff need to be alerted to the time the access will be available, and the reasons for this temporary permission to access sites that are typically blocked for data protection purposes. Staff must be made aware; this temporary access is a period for data retrieval, not permission to maintain data on external systems.

Beyond our anti-virus software, what steps should we take to protect the business against this potential threat?

Businesses need to be ready for a potential increase in security incidents. All potential controls should be in place to protect user endpoints as well as any data flowing in via web connections, but it is likely that some malicious documents and files will still arrive; anti-virus software is not a panacea. Teams will need to be ready to deal with malware outbreaks as staff return, and organisations may wish to factor this into their resourcing plans, particularly where some staff may have been furloughed.

Factoring in both the likelihood of malware incidents and support calls, IT and cyber security teams need to ensure teams are ready and staffed to deal with these first weeks post-distancing. Businesses that adjusted team numbers to account for drops in support calls during the distancing will need to review resourcing carefully ahead of the return to offices if quality of service and appropriate levels of security are to be maintained.

Are there any long term cyber considerations for mixed home and remote working?

The COVID-19 pandemic brought around huge changes in the way we work, and potentially will work for the future. Many organisations are looking to return to normal, but questions remain about what a 'new normal' will look like.

The opportunity for remote and flexible working, as well as a new way of delivering services is now more viable than ever. We recommend that organisations challenge the return to the old normal and embrace new strategies.

Remotely managing cyber security incidents, collecting forensic information at a distance and managing cyber security risks have all continued during the crisis and should continue afterwards. Teams are likely to maintain a level of home working, which means the challenges of home working may persist.

 

Data

What are business owners' duties towards data collection?

The Government's announcement on 23 June of the easing of lockdown restrictions confirmed that, from 4 July, pubs, restaurants and hairdressers in England will be able to reopen, providing they adhere to COVID Secure guidelines.

The guidance issued on the same day says "We will work with industry and relevant bodies to design this system in line with data protection legislation, and set out details shortly". This, however, leaves very little time – little more than a week – for businesses to receive these details and make preparations.

This is potentially a tremendous challenge, both practically, and legally, for a sector which relies, in very large part, on "passing trade". Although Johnson's speech went on to say that the Government "will work with the sector to make this manageable", we anticipate that many business will be unused to, and unprepared for, collecting personal data (and this will potentially be very sensitive data) in this way. Although we also anticipate a degree of regulatory forbearance (as we have previously noted, the Information Commissioner has generally been taking a lenient approach to companies' data protection compliance during the pandemic) businesses emerging from drastic shutdown measures will keen to be exposed to as little legal, regulatory or reputational risk as possible. Already, some civil society groups are warning of a "privacy minefield", and it is quite likely that complaints and claims against non-compliant businesses could follow.

In order to encourage their customers to provide accurate information, businesses will need to make sure they do their best to build up a level of trust. Ensuring that customers are told clearly and in simple terms why their data is being collected, what the business plans to do with it, and then only doing that, is key to good data protection practice.

Return to School

Which children are able to go back to school?

Whilst many schools have remained open throughout the lockdown for vulnerable children and children of key workers, from 1 June children in Reception, Year 1 and Year 6 were permitted to return. Pupils in Years 10 and 12 have been allowed back to school for some face-to-face support from 15 June, to help them prepare for exams. The Government has further confirmed that, where schools have capacity, they may welcome more children back, in group sizes of no more than 15, before the summer holidays. It will be up to individual schools to decide which additional children to invite back.

Can parents decide to keep children at home?

Yes. The Government "strongly encourages" eligible children to return to school when they are able to do so, unless they are self-isolating or shielding, but it is not compulsory. Parents will not be fined for children not returning to school, even if they are able to do so – although this could change, particularly once the school summer holidays have ended

What happens if parents cannot agree whether a child should return to school?

Such differences of opinion may not only be between separated parents but also with parents living together. However even where children spend the majority of their time with one parent, that parent should discuss important matters in relation to their upbringing with the other parent. In the current circumstances a return to school may well be considered one such matter.

If at all possible, parents should in the first instance discuss their concerns directly to try and agree, or explore whether alternative arrangements can be made. For example, if one of the concerns is about the child travelling on public transport, solutions could be developed to help make the concerned parent feel more at ease, such as the other parent picking the child up and driving them for the time being. If there are issues around the safety measures the school has put in place, then these should be discussed with the school, involving both parents. It may also be the case that children can return to school and then be withdrawn if parents are concerned about the safeguarding measures in place.

There may be particular considerations for some parents, such as siblings who will not be returning to school, or households where there may be adults or children with underlying health conditions which put them at greater risk. Balanced against that will doubtless be factors such as the impact of missing school on the child's education and socialising with their peers, as well as their mental well-being.

If parents do not feel able to have these discussions directly, or need the assistance of a third party, then a mediator can assist in facilitating the conversation and exploring different options.

However ultimately, if parents are unable to agree then an application can be made to the court for a Specific Issue Order (which is an order to determine a specific question which has arisen or may arise in connection with any aspect of parental responsibility for a child), or a Prohibited Steps Order (which prevents someone from exercising their parental responsibility in respect of the disputed matter). Which application is appropriate will depend upon whether the parent wishes for the child to return to school in the face of opposition from the other parent, or is seeking to prevent the child from returning to school.  In respect of both orders, the child's welfare will be the court's paramount consideration. Factors which will be taken into consideration in determining the outcome include the child's physical and emotional need, but also, importantly in such cases, their educational needs.

Clearly, court proceedings should always be a last resort, and the outcome will depend upon the particular facts of each case. Applications can be made on an urgent basis, although it will be up to the individual judge to decide whether a case is suitable to be heard remotely.

Arrangements between separated couples

My ex and I have a child but are separated. Can our child move between us?

The Government's guidance published in March stated that, as an exception to the COVID-19 restrictions, children with separated parents are permitted to move between both households. This position has been maintained as restrictions have been relaxed.

From 13 June, it has been possible to form a "support bubble" with one other household if a parent lives alone or with dependent children. All members of the support bubble are permitted to act as if they live in the same household. If a child's parents are separated, they do not have to form a support bubble in order for the child to spend time indoors in each household. Even if each parent forms a support bubble with a third party, the child can move between both households.

If anyone in either household is showing any of the symptoms of COVID-19, then the Government guidance must be followed – the person who has symptoms must stay at home for 7 days and all members of their household must stay at home for 14 days. If the parents are both in separate support bubbles, all households would need to isolate if anyone in the group becomes symptomatic.

Practical arrangements may need to change. If you usually collect your children from their school and they have not yet returned to school, you may need to collect them from the other parent's home instead. Parents will need to work together insofar as is possible to ensure that children can still see both of their parents during this time. You should avoid using public transport to facilitate children's travel from one home to another unless absolutely necessary.

 

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