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Advice for Employers Around the Return to Work Challenge
Employers will need to adopt a highly considered approach to the return to work challenge. Specifically tailored to their unique circumstances, with due consideration given to all the potential issues which could arise as staff start to return. Our FAQs are for general guidance only, and do not constitute and should not be relied upon, as legal advice. Every business and challenge is different. If you are an employer and your business needs specific support and advice for your unique context please contact us at legal@lexleyton.co.uk

Last update:21/08/2020 – 11.03

There are many potential issues which may cause an employee to feel nervous about returning to work as lockdown eases.  Many of these relate to health issues, but employees with caring responsibilities may also find the return to the workplace difficult.  From an employer’s perspective, the key to success will be in balancing the needs of the company against the needs of the employee, and ensuring that all necessary steps have been taken to minimise the risk posed by the workplace.  We have prepared a handy flowchart outlining the most common reasons for refusal and our advice on how to minimise the impact of such refusals on your business as you return to the workplace – https://lexleyton.co.uk/wp-content/uploads/2020/08/Returning-Employees-to-the-Workplace.pdf

The Government has now provided industry-specific advice on how employee safety can be managed, which we expect will be updated continually. Companies should keep abreast of the current guidance as this changes from time to time. Guidance can be found at https://www.gov.uk/guidance/working-safely-during-coronavirus-covid-19

The rules on returning to work differ by country and industry sector, with an overarching theme that, until things are back to normal, those who can work from home should do so. Employers should also remember the importance of targetted, regional lockdowns and the impact on the return to work. The Health and Safety Executive provides useful guidance on how Coronavirus impacts upon workplace safety, and employers should heed their advice, ensure that their Coronavirus risk assessments are robust and up-to-date and that they deal with the concerns of individual employees sympathetically. More guidance on Employer Health and Safety Obligations can be found at https://lexleyton.co.uk/health-and-safety/
The Government has also published an online tool to allow employees to check whether they should return to work: https://www.gov.uk/coronavirus-employee-risk-assessment

Where policies can be implemented into a business without consultation with and agreement by employees, it stands to reason that they can be amended in the same way. However, employers stand the best chance of obtaining true employee buy-in where they listen to workers and consult with them with a view to reaching agreement. Where consultation is necessary, employers should engage with employees or their representatives to consult. Clearly, where employees are not physically present in a workplace, the mechanics of consultation can be difficult and would need to take place remotely. If the reason for change to the policies is that Government guidance has changed this is likely to be uncontroversial.

Employers will need to ensure that they regularly engage with employees and are highly proactive in responding to their concerns around returning to work.  Nervousness about returning to work may amount to illness, which would tend to justify sickness absence.  In addition, where an employee’s cautious response leads to a refusal to work, employers should be mindful that dismissal in such circumstances could amount to an automatically unfair dismissal.  Specific legal advice should be sought in such circumstances.

Our Coronavirus Health and Safety Obligations Guide and our advice on Health & Safety will be useful to employers in this situation.

Many employers will be likely to have to ‘unfurlough’ employees in waves, depending on the order in which the different parts of their business come back on stream. Where only part of the staff in a certain department are required, this raises issues around potential discrimination. Whatever reasons a business chooses for selecting which staff should return to work, the reason should not be discriminatory. A useful way of minimising the risk of discrimination is to request volunteers to return first. However, where this is not possible, a clear and robust business case is a prudent first step for employers. The Government has announced an extension of the CJRS to October 2020 and part-time working and furlough have been permitted from 1st July 2020. This modified approach allows employers flexibility in returning employees to the workplace on a phased basis.

Emergency Volunteering Leave requires an employee to provide their employer with a certificate from an authority (usually a health authority or local authority) which sets out the length of the leave.  Both Furlough Leave and Emergency Volunteering Leave involve a worker not attending work for a time.  If an employee has been furloughed they will be paid; in contrast Emergency Volunteering Leave is unpaid.  At the end of both types of leave, workers return to work as usual, recommencing the normal work-wage bargain.

It is not uncommon for some employers to approach flexible working requests by looking for ways to refuse.

The Coronavirus lockdown has shown that a large number of jobs can be carried out from home relatively easily and many businesses have reported a number of beneficial and unforeseen impacts to include lifts in productivity and employee engagement.  Employers should remember that, even before lockdown, the Government’s Good Work Plan insisted that flexibility will be the new norm in future.

Working from home, which is one of the main examples of flexible working, requires a degree of trust between employers and employees and it is likely that employers will see an increase in requests for homeworking post-lockdown.  Decisions on homeworking are taken on a case by case basis and not all roles or employees will be suited to undertaking their roles from home.  The easiest (and fairest) approach to this tends to be a ‘first come first served’ basis.  Employers can then assess the impact of the request on the company (keeping in mind the impact of any homeworking that has already been agreed).

Employers will need to look at more robust performance and productivity assessments if homeworking is to become more prevalent on a permanent basis.  However, if it can be managed successfully during lockdown there is little to suggest that this could not be similarly successful permanently.  Employers should ensure that their homeworking policy gives them the control necessary to make such arrangements work for both parties.

Yes – there is nothing in the Scheme which prevents an employee being served notice of termination of employment. The amount of notice will depend on whether the employee has normal working hours and the contractual terms for the termination of their employment. If a contract of employment provides that an employer must give an employee at least one week more notice that the statutory minimum, then the notice pay will be based on their contractual pay.

The rules in this area are notoriously complex and it would be prudent for employers to seek specific advice on this point. For more guidance on dismissals please see https://lexleyton.co.uk/redundancies-and-dismissals/

Yes – where employers have reserved the right to pay in lieu of notice in a contract of employment they may rely on this right. For more guidance on dismissals please see https://lexleyton.co.uk/redundancies-and-dismissals/

In common with making a payment in lieu of notice, if an employer has reserved the right to place an employee on garden leave in their contract of employment they may rely on this. In a period of furlough, there is little practical difference between garden leave and furlough itself – both essentially lead to an employee’s employment continuing but without the need to attend work . As such, employers without garden leave clauses could achieve much the same effect by having an employee pass their notice period on furlough leave. Employers should be mindful that there are some contractual issues that may arise during a period of garden leave – for example, Restrictive Covenants will often provide that the period of restriction is reduced by any time spent on garden leave. More guidance on dismissals can be found at https://lexleyton.co.uk/redundancies-and-dismissals/

Use of annual leave, for almost all employers, depends on a system of application and acceptance or refusal of annual leave.  As such, it is perfectly possible for employers to reject applications for annual leave following furlough leave if this does not suit the business.  Employers, especially those whose annual leave years end later in 2020, should consider how to make sure that the business has sufficient cover while balancing this with the need for employees to use up their annual leave allowance and enjoy some rest and relaxation.  Where employees are unable to use annual leave due to Coronavirus, the Government have taken steps to allow this to be carried over in to future annual leave years, similar to how employees on long-term sickness absence may do. See https://lexleyton.co.uk/job-retention-scheme/ for more guidance on the Coronavirus Job Retention Scheme

The Government’s provision to allow employees to carry over annual leave to future years is designed to help employees who cannot take annual leave due to Coronavirus. The wording of the legislation refers to situations where it is not “reasonably practicable” for employees to take some or all of their annual leave “as a result of the effects of coronavirus.” The word ‘effects’ is defined very broadly. However, a distinction should be drawn between the inability to take a specific (e.g. foreign) holiday and the inability to use annual leave. Depending on the end of lockdown restrictions (and of individual company holiday years), it should be perfectly possible for many employees to use at least a large proportion of their annual leave in the current leave year.

Employers have the right to force employees to take annual leave, provided that they are given twice the length of notice compared to the length of leave to be taken. This can often be unpopular, other than in relation to common shutdowns (such as Christmas or a traditional period in the Summer) but will be an important consideration for employers given the financial and resourcing impact of employees having a build up of holiday accrued over the lockdown period. During lockdown it remains important for employees to have regular rest and holiday breaks from work for their mental health so encouraging the taking of holiday during this time is important.

Temperature checks are increasingly being used across the world, for example in airports where they are used to stop the spread of Covid-19 . The General Data Protection Regulation (GDPR) and most other data-privacy laws would generally prohibit employers from conducting temperature scans as GDPR considers health data to be “sensitive personal data” that an employer would need an exception to implement.

While country-specific practices vary, temperature checks may be acceptable with the consent or approval of the relevant employee, provided they are self-administered or conducted by medical staff or reliable automated technology.

Employers should consider the additional privacy concerns and any employment contract implications of temperature screening and take advice before implementing any screening practices. For more guidance on Health and Safety considerations for Employers see https://lexleyton.co.uk/health-and-safety/

The best way to achieve such variation is firstly to plan what sorts of changes will be required in order to keep the business going and then to consult with staff in an open and transparent manner. The current pandemic is an issue which clearly impacts on employers; employees appreciate this and uncertainty about job security adds to the stress that they will feel. An open and honest conversation, which shows the efforts being made by the company to avoid closure or redundancies, is likely to be the most effective manner of allaying fears and promoting employees to accept difficult changes.

The mechanics of consultation will depend on the content of contracts of employment (which may contain specific or general variation clauses), the recognition of a trade union or works council and the extent to which employees accept change. Once changes have been agreed, employers should record this with each affected employee in a formal document which outlines the changes, the time period (if temporary) and have the employee sign to confirm acceptance.

Given that the furlough scheme has now been extended until October, and as part-time work has been compatible with furlough from 1st July 2020, employers have more flexibility in how they preserve their businesses while bringing their workforce back to work. For more guidance on the Coronavirus Job Retention Scheme see https://lexleyton.co.uk/job-retention-scheme/

Such consultations can be difficult, and it would be prudent for employers to seek specific legal advice on strategy and delivery.

The Health and Safety Executive advise that employers should engage with their workers on health and safety matters. Indeed, employers must consult with employees on certain matters. Employers should carry out risk assessments in relation to Coronavirus and it is sensible to share the outcomes of these with staff – this will often help to allay fears about returning to work.

The Government has provided guidance on consultation with employees in relation to Coronavirus risk assessments. In particular, employers with over 50 employees will be expected to publish the results of their risk assessments on their website.

Further information is available at Health and Safety can be obtained from the HSE and in particular at https://www.hse.gov.uk/risk/ https://www.hse.gov.uk/news/coronavirus.htm and https://www.gov.uk/government/news/new-guidance-launched-to-help-get-brits-safely-back-to-work

See also https://lexleyton.co.uk/health-and-safety/ for more guidance.

The Government has announced a move to return to work in England and devolved administrations have announced their plans for a phased end to lockdown – please see https://www.gov.uk/government/news/new-guidance-launched-to-help-get-brits-safely-back-to-work

Specific information for different industries has also been issued at https://www.gov.uk/guidance/working-safely-during-coronavirus-covid-19

Employers should note the requirement to consult with employees and to publish the results of any risk assessment. It is likely that by engaging with employees on the risks of returning to work, workers will feel less worried about coming back to the workplace. For more information on Health and Safety considerations for employers see https://lexleyton.co.uk/health-and-safety/

Employers will need to ensure that they regularly engage with employees and are highly proactive in responding to their concerns around returning to work.  Nervousness about returning to work may amount to illness, which would tend to justify sickness absence.  In addition, where an employee’s cautious response leads to a refusal to work, employers should be mindful that dismissal in such circumstances could amount to an automatically unfair dismissal.  Specific legal advice should be sought in such circumstances.

The statutory definition of medical suspension is very limited and does not currently extend to Coronavirus. If an employee falls within the definition of being in isolation for Coronavirus for the purposes of SSP, it is likely that they would be considered to be sick and therefore eligible for sick pay (either company sick pay or SSP only). If they do not fall within that definition, they should receive full pay unless their contract of employment states otherwise.

Where schools have closed, employers should consider the impact of this on employees with children of school age. If an employee must remain at home whilst they make alternative arrangements for childcare, this time will be treated in accordance with normal rules on unpaid time off for dependants or unpaid parental leave if they cannot work as a result.

However, if the employee can work from home then they should be paid as usual and this would be a sensible approach.
Employees may choose to take this time off as holiday instead in which case normal annual leave processes and pay apply.
Strictly speaking, time off for dependants should only cover a period of a few days while (in this case) parents find alternative childcare arrangements. However, we advise that employers should be flexible where possible in this situation, as it is likely that finding child minders will become increasingly difficult if schools close.

Can an employer refuse to allow an employee to work from home if they will also be looking after children who have been sent home from school or nursery?In normal circumstances, it would not be appropriate for an employee to work from home while also providing childcare. However, given the current rules on lockdown and the need to work from home where this is reasonably possible, employers may need to take a pragmatic approach. Where schools and nurseries are closed, a large number of parents in the workplace will face this issue. Placing a blanket ban on working from home while also looking after children may preclude a large proportion of the workforce from performing any duties.

In these unprecedented circumstances, employers may be prepared to take a more relaxed and flexible approach to homeworking and allow employees to work around their childcare responsibilities if the employees are needed.

In normal circumstances, it would not be appropriate for an employee to work from home while also providing childcare. However, given the current rules on lockdown and the need to work from home where this is reasonably possible, employers may need to take a pragmatic approach. As all schools and nurseries have closed for all but the children of key workers, the majority of parents in the workplace will face this issue. Placing a blanket ban on working from home while also looking after children may preclude a large proportion of the workforce from performing any duties.

In these unprecedented circumstances, employers may be prepared to take a more relaxed and flexible approach to homeworking and allow employees to work around their childcare responsibilities if the employees are needed.

If an employee refuses to go to work when they are fit to do so, an employer has no legal duty to pay them. However, stress or anxiety are clearly conditions which impact on an employee’s fitness to come to work. Accordingly, if an employee is not fit to come to work because of stress or anxiety due to the threat of Coronavirus, they will be considered to be on sick leave and receive sick pay. They may wish to work from home instead if they feel able to do so.

Where an employee is able to work from home, they are not automatically entitled to SSP if they work from home.

They would be very likely to benefit from such protection. The law protects whistleblowers from suffering detriment because they made a ‘Protected Disclosure’. Put generally, disclosures of information are protected where the employee reasonably believes that wrongdoing has taken place, that the wrongdoing itself relates to a danger to the health and safety of an individual and where they reasonably believe that disclosure is in the public interest. Whistleblowing is not limited to health and safety matters, but here you can see how a disclosure about health and safety dangers would be likely to qualify.

The key for employers is not to panic or to seek to punish the employee for making the disclosure. Rather, in the case of a return to work post-lockdown, it would be prudent to discuss the employee’s concerns with them in order to see what steps can be taken to avoid the H&S danger in the first place.

Current Government guidance on quarantine can be found at https://www.gov.uk/uk-border-control

Unless and until such guidance changes, the period of quarantine will apply to those arriving in or returning to the UK from certain countries.  As such, it would be prudent for employers to ask their employees how they plan to cover the additional quarantine period before their holiday requests are approved.  If they need to take additional paid holiday or unpaid leave to cover this and you cannot grant them the extra time,  then this should be explained to them before their leave request is approved and you should make it clear that they need to be back into work at the end of the original holiday period.  It may be possible for the employee to work from home during the period of quarantine. However, if this is not reasonably possible, they may wish to change their holiday plans or hold off booking their annual leave until Government guidance changes.

Download the guidance on this topic