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07th May 2020

Returning to the workplace after lockdown: employment law issues and practical steps

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There is an expectation that a lockdown exit plan will soon be revealed by the government. When lockdown eventually begins to be lifted, we are likely to see measures for a gradual and phased return to the workplace. Pending publication of any formal guidelines, businesses are starting to turn their minds to how they will resume operations.

For some businesses, the return to the workplace will mean a focus on managing new issues such as physical distancing measures, testing and tracing. For others, the main focus will be acting on the permanent damage to the business caused by the pandemic, and this may mean redundancies. Below we set out some of the employment law issues and practical steps that employers should consider when planning a return to the workplace.

Preparatory steps: key health and safety measures

On 27 April the TUC published a paper setting out the steps it wants the government and employers to undertake to ensure a safe transition from lockdown. One of the key recommendations is that every employer must carry out a specific COVID-19 risk assessment before staff are allowed to return to work. The assessment should identify the risks of exposure to the virus, provide an outline of the business’s health & safety plans and the measures it is taking to reduce the risks identified.

Employers are under a duty to take reasonable care and steps to ensure the safety of their employees while at work. Employers should therefore think about (among other things):

  • Continuing to follow guidance from the government, NHS and World Health Organisation;
  • Communicating with employees to ensure regular and transparent updates on its plans;
  • How physical distancing can be effectively achieved and how this affects the number of people that the workplace can accommodate; and
  • Whether a return-to-work policy should be implemented and how this might deal with new issues surrounding the testing of employees.

Getting back to work: assessing who will return and when

Indications from other European countries suggest there will be a progressive relaxation of restrictions over an extended period, and most employers are likely not to need all staff to return to the workplace at first. This poses the question as to who should return, and when.

Employers should think about how many staff are needed in the workplace and consider the associated risks. There will be various issues to consider, including:

  • The more people who return to the workplace, the greater the risk of an outbreak and spread of the virus.
  • Limiting the number of employees allowed in the building at any given time and considering a rota for who comes in and when. Staff could be split into teams with alternate days and times for attending the workplace. Any teams should be small and fixed so where contact is unavoidable it happens between the same individuals.
  • For those who have been furloughed, the furlough will need to be brought to an end before they can be asked to undertake any work. The period of furlough must have lasted for at least 3 weeks in order for an employer to remain eligible to claim for their wages under the Coronavirus Job Retention Scheme (CJRS).
  • Following shielding guidelines to protect those most at risk (i.e. those aged over 70 and/or with serious underlying health issues). Such individuals will not be in a position to return to work until at least the end of June 2020 based on current guidelines.
  • Implementing suitable homeworking guidelines which ensure those who work from home are not disadvantaged compared to those who are able to return to the workplace.

Furlough exit strategy

The Chancellor has said he won’t impose a ‘cliff edge’ to end the CJRS, and says the government are trying to figure out how to wind it down. There has been mounting pressure on the government for some time to make the CJRS more flexible to allow employers to make smaller claims for employees working reduced hours, in order to incentivise staff back to work. But with no formal furlough exit strategy as yet, what are the options for employers?

  • End furlough and bring employees back to work on their existing terms and conditions. Giving notice to furloughed employees that their employment will resume on the terms and conditions which applied immediately before their furlough commenced is perhaps the easiest option, but it is expensive. This is likely to only be an option for employers who anticipate the business will get back to near-normal trading conditions in the relatively short-term.
  • Extend furlough without the benefit of the government grant. There appears no reason in principle why employers could not continue to extend furlough, even if the CJRS closes on 30 June. Employers could furlough new employees or operate a form of rotation to retain employees for when business conditions begin to recover. This is also an expensive option, but it avoids significant redundancy costs and employees may agree to reduced terms as an alternative to redundancy.
  • Ending furlough and bringing employees back to work on reduced hours and pay. This is a useful approach for businesses who are seeing trading conditions improve but are not able to operate as normal and wish to avoid the cash-flow issues associated with redundancy costs. A reduction in hours and/or pay is a change to terms and conditions and requires employees’ agreement. Individual consent should be obtained and evidenced in writing. If the proposal is presented to staff as an alternative to redundancy, or if a decision is made to force the change by dismissal and re-engagement on new terms for those who do not agree, collective consultation may be necessary depending on the numbers involved.
  • Offering unpaid (or part-paid) leave or sabbaticals. This might be an option where the business is not yet able to return to normal trading conditions so there is no work for employees. An employer could make it known that it is considering applications for sabbatical, reserving the right to decline requests (e.g. in case someone is in a business-critical role). If a sabbatical is agreed, then its terms and the employee’s consent to them should be recorded in writing.
  • Redundancies. Whether the CJRS will be extended in some way (even on reduced terms) is still unknown, but in the absence of this some employers will have no option but to reduce headcount by implementing redundancies. HMRC guidance for employers on the CJRS states that employers can still make a furloughed employee redundant while they are on furlough or afterwards. Although there is no express guidance on this point, it is likely that individual or collective consultation could be carried out during furlough, as it is not making money for the employer or providing services. Legal advice should be sought if an employer is considering a redundancy process.

The return to the workplace will undoubtedly be a complex process, with no single solution for all. With the CJRS currently due to end on 30 June, many employers will need to start planning ahead to determine if and how furloughed staff can be reintegrated into the workplace and the issues that will arise therefrom. We encourage employers to take advice on tailoring their approach to fit their business.

If you wish to discuss any of the contents of this article click here to email Charlotte Herrington, or speak to the Hewitsons’ employment team.