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Mishcon Academy: Digital Sessions - Managing the return of employees to work - your questions answered

Posted on 18 May 2020

On 14 May 2020, we hosted a live digital session on COVID-19: Managing the return of employees to work focussing on what you need to do as an employer to prepare for a return to work and the strategies to help you minimise risk in the process.

During the session some of our audience asked questions that we didn't have time to cover live. We have pulled together the answers to these questions below.

Safe Working
 

Do we have to carry out health and safety checks for employees who are currently working from home due to the current situation - such as a display screen risk assessment?

During the coronavirus pandemic, it's unlikely that employers can carry out usual health and safety risk assessments at an employee's home. However, an employer should still check that employees feel the work they're being asked to do at home can be done safely and that they have the right equipment to do so. Managers should keep in regular contact with their employees to check on their wellbeing and ensure that reasonable adjustments are made for any employees who have a disability.

If changes are needed, employers are responsible for making sure they happen. Employees also have a responsibility to take reasonable care of their own health and safety.

The HSE advises that there is no increased risk from display screen equipment work for those working at home temporarily so, currently, employers do not need to do home workstation assessments. The HSE has prepared this checklist which employers can provide to employees with advice on completing their own basic assessment at home.

Does the employer duty of care change where employees are working from home because they choose to do so?

No, employers have the same health and safety responsibilities for home workers as for any other workers, regardless of the reason for them working from home.

How do we deal with staff who are defined as vulnerable, e.g. those who are pregnant and cannot come back to work or feel unable to return, assuming they can't be furloughed? 

Employees should work from home if at all possible. This is particularly the case with those who are 'clinically extremely vulnerable' who must work from home either in their usual role or another role they can do from home. If this is not possible, they should be furloughed or on sick leave.

Those who are 'clinically vulnerable' should also work from home but if this is not possible then they can return to the workplace but must be given the safest available onsite role, e.g. where social distancing can be maintained – if there is no such role the employer must decide if the risk is nevertheless acceptable. Those who are pregnant are entitled to suspension on full pay if they cannot work safely.

To the extent available in due course, could an employer make COVID-19 testing and/or use of the NHS tracing app mandatory with a view to protecting all staff?

In relation to mandatory testing, it is generally not lawful to require workers to have any particular medical treatment or procedure. However, it may be something an employer could reasonably require in certain relatively unusual circumstances (for example, when it can be justified due to the specific nature of the worker’s role, such as for those working in a health sector/social care or those working with people that are vulnerable).

In relation to the tracing apps, the collection and processing of this data must comply with data protection legislation. It may be possible for an employer to insist on its employees having and using such an app and having access to the data on the app (particularly if held on a device owned by the employer) so as to ensure that workers do not pose a risk to the rest of the workforce. Another, more proportionate, approach may be to require employees to self-declare that the app is showing them as having not been in contagion proximity of an infected third party, before allowing entry to the workplace. The implementation of any such app is likely to trigger specific government and ICO guidance so employers should adhere to all relevant advice as and when it is published.

What about checking employees’ temperature when returning to work?

Employees would need to give their consent and you should ensure that the collection and processing of this data is done in accordance with data protection legislation. This includes being able to show that you have conducted an assessment, have considered, and can explain, the reasons for testing and how the information will be used.

Having taken all reasonable steps to make the workplace safe, what can employers do about employees who are unwilling to use public transport to get to work?

Allow employees to work from home wherever possible. If not, consider whether staggering start and finishing times to avoid rush hour would help, or providing car parking spaces for example. If these are not options then employees who refuse to come to work are not entitled to be paid and could potentially be disciplined, unless they have a reasonable belief that by travelling to work they are in serious and imminent danger. This may be particularly relevant for those who are vulnerable or who are caring for someone who is vulnerable.

Are carers of the extremely vulnerable or vulnerable entitled to be suspended on full pay if they cannot work from home or be given alternative work?

Employers should check the employment contract and their workplace policies. In the absence of a contractual right to paid time off, there is no statutory right to paid time off in these circumstances (and such an employee would have to rely on the limited right to unpaid dependants leave or agree paid or unpaid leave with their employer).  Furlough remains an option if there is no work that can be done from home and you cannot offer the safest available onsite role.

Childcare
 

What rights, if any, do those who are unable to return from furlough e.g. because of childcare, have where the business needs them back at work?

In the first instance, it may be possible to agree a more flexible working arrangement such as working different and/or reduced hours from home to fit around caring responsibilities and being flexible about deadlines and targets where possible. If such homeworking or other flexible arrangements are not possible, employees who cannot work because of childcare may be entitled to unpaid dependants' or parental leave if they cannot be furloughed.

Redundancies
 

Can a zero hours employee who is shielding be made redundant if there is no work?

A zero hours employee can be made redundant in the usual way, however their statutory redundancy rights will depend on their individual status. Assuming they are not pregnant, the fact that they are shielding could indicate that they have a disability and care should be taken to ensure any redundancy is not discriminatory. Zero hours employees can also be furloughed or may be entitled to SSP if they are shielding so these may be alternatives, and if the zero hours employee has no minimum or guaranteed hours then they could in certain circumstances be kept on the books if there is prospect of work in the future.

How do you go about dismissing individual employees if there are fewer than 20 redundancies?

Employees with more than two years' service have the right not to be unfairly dismissed. To ensure a fair dismissal for a genuine redundancy, you would need to consult with each employee individually about the reason for and ways to avoid or mitigate redundancies and ensure you have carried out a fair and objective selection process. Employees are entitled to receive their contractual notice and (for those with more than two years' service) a statutory redundancy payment.

Can salary be used as the sole reason for redundancy? If three people have the same role and there are no discrimination issues, can we dismiss the employee who receives the highest pay?

First, in order for a redundancy dismissal to be fair (assuming the individual has the required service) there must be a genuine redundancy situation, namely: there must be a business closure (closure of the business altogether) or a closure of one of several workplaces, or relocation to a new site; or the requirements of the business for employees to do work of a particular kind must have diminished or ceased. You cannot make someone redundant purely to terminate the person with the highest salary. If the work still needs to be done then agreeing a reduction in salary may be a better option.

If we are giving notice of redundancy during furlough can we continue furlough during notice and does this need to be topped up to 100% as is the case with holidays or can it be at the 80% furlough pay?

Notice can be given and can run during furlough leave. Whether employees are entitled to full salary, or the furloughed rate, depends upon (i) the terms of the furlough agreement (which needs to be in writing) and (ii) the employee's contractual notice period (if it is not longer than statutory notice plus one week then, whatever the furlough agreement says, you should pay full salary).  However, we would recommend that you seek specific advice before giving notices of termination

Furlough
 

Can furloughed employees who have agreed to furlough leave request to come off furlough and come back to work?

Employees do not have an automatic right to request to end furlough and come back to work. However, if you need employees to come off furlough and back to work you can invite requests to help with your selection. However, remember that furlough leave must be for a minimum period of three weeks so cannot terminate before that time.

Is there any work that furloughed staff can do for the business if it doesn’t generate income? For example, can employees help with research for the business to enable it to pivot into a new space?

Employees on furlough cannot do anything that involves providing services to or generating revenue for their employer (or for a linked or associated organisation). If they do, the employer may have to repay the grant.  It is likely that business development research would be considered providing 'services' for the employer, even if no revenue is generated in the shorter term.

Furloughed employees can undertake training as long as it does not involve providing services or generating revenue for their employer so furlough leave can be used to develop skills for the future. The Government guidance actively encourages furloughed employees to undertake training.

Holiday
 

We are planning to require staff to use certain amounts of holiday by certain dates as we anticipate not being back in the office for most of the remainder of the year. As long as staff are not working and are likely to be able to relax and have downtime, will this meet any employment law requirements?

Yes, this should be fine to do. There is no legal requirement for employers to prove or show that their employees are sufficiently relaxed and rested while on holiday, and an employee who chooses to work cannot necessarily claim that their employer has breached their right to holiday (but you should not ask or put any pressure on an employee to work). Provided you have given sufficient notice of the requirement to take holiday, employees get paid their normal pay and they are not on sick leave (during which you cannot require them to take holiday) then this is compliant.

 

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