Lockdown restrictions are now starting to ease throughout the UK.  With the Coronavirus Job Retention Scheme due to wind down employers need to plan for the safe return of their workforce. Giving employees' confidence that the workplace is safe will be key to a successful return.

What is the timescale for the CJRS being wound down?

The UK Government has announced that the CJRS will continue in its present form until the end of June 2020.  From July until October - when the Scheme is expected to close - more flexibility will be available to employers and employees as the economy reopens.  Employees will be able to return to work part-time to enable a phased return to work.  Employers will pay 100% of wages for the hours the employees work and an increasing percentage towards wages for unworked hours.  Staff are to continue to receive 80% of their salary up to £2,500 a month.  For more information on the CJRS see our CJRS - Overview and FAQs and Flexible furlough from 1 July.

How do I bring furlough to an end?

This can be done either in accordance with the terms of a furlough agreement or by giving notice to the employee that they are to return to work.

What are the health and safety considerations for the employer on return to work after lockdown

Employers' health and safety obligations to employees, irrespective of where they are working from, arise from the Health and Safety at Work etc Act 1974 and also a general duty to take reasonable care of the health and safety of workers, take steps to provide a safe workplace and to provide a safe system of work. 

New guidance and any amended legislation relating to coronavirus specifically should also be followed, including guidance on social distancing and PPE. 

What does that mean in practice?

The primary message for employers is if their employees can work from home they should continue to do so.  If that is not possible then employers must ensure they are providing a safe working environment.  This means carrying out a suitable and sufficient risk assessment of all work activities to identify both hazards and the degree of risk, and these will have to be updated regularly.  Employers are also legally required to provide employees with specific information about health and safety risks and how they are protected from those risks.

Doing this is likely to include consulting with employees or their representatives - getting agreement that the system that is being put in place is safe will be crucial to employees being confident about a return.  Risk assessments will need to be specific to location and process, be ongoing, and should also take into account the differing vulnerability of employees for reasons such as age, health condition and potentially ethnicity.  Many employers are likely to return employees in phases which gives them the chance to ensure the processes work before the density of employees increases.

Employers should also consider the mental health of workers and it is good practice to provide managers with training on how to recognise and deal with concerns.  This applies equally to workers who remain at home while their colleagues return.

Do health & safety obligations cover the commute to and from work?

Court cases on this have not conclusively resolved the position and cases will be fact specific.  However, it seems inevitable in the current circumstances that travel to and from work will be a factor that employers will have to consider when assessing the safety of a return to work.  Employees who do not believe their commute will be safe will be reluctant to return, particularly if they are in vulnerable groups. 

Is there any guidance available that may help?

The Government has recently published 8 sector specific guides covering construction and other outdoor work; factories, plants and warehouses; labs and research facilities; offices and contact centres; restaurants offering takeaway or delivery; shops and branches; work in other people's homes; and in or from a vehicle.

The CIPD has also published a COVID-19: returning to the workplace guide and the HSE has a variety of advice and guidance available.

Can I carry out temperature checks on the employees?

Testing employees raises data protection issues regarding gathering and retention of sensitive personal data of employees.  The Information Commissioners Office has published guidance for employers on workplace testing in the context of the COVID-19 pandemic.  Employee consent will be required and checks should be carried out in a consistent manner to avoid discrimination issues. 

What should be done if staff members are required to continue shielding after the workplace reopens and the furlough scheme ends.

It may be both a breach of health and safety legislation and disability discrimination for an employer to require an employee who has been advised to shield to return to work.  It may also be associative discrimination to require employees to return to work who do not fall into the extremely vulnerable category but who are shielding because they live with someone who does.

Where possible the staff member should be allowed to work from home.  Where that is not possible then then the employee will be entitled to statutory sick pay.  They may also be entitled to contractual sick pay.

What if an employee who is not in a vulnerable category refuses to attend work?

The first step would be to discuss with the employee why they are refusing to return, and see if their concerns can be adequately addressed.  If reasons are health related - either physical or mental - risk assessments and/or reasonable adjustments may be required.  Where relevant, medical input could be sought. 

There may be some cases where it appears the employee is failing to follow a reasonable instruction but employers should be cautious about taking disciplinary action on that basis in the present climate.  The Employment Rights Act 1996 protects employees who are dismissed because, in circumstances of danger which the employee reasonably believed to be serious and imminent and which the employee could not reasonably have been expected to avert, the employee leaves or refuses to return to the workplace.  Whistleblowing and discrimination is also a risk as is reputational damage.

What about employees who cannot return because there is no childcare available?

This should be dealt with sympathetically by employers.  While the World is changing, in the majority of cases, the main burden of childcare still falls to women.  Placing a requirement to return to work on employees with childcare obligations could result in indirect sex discrimination claims.  Communication will be key as will looking at flexible working options.  Some parents may be willing to look at unpaid parental leave but for others that will not be financially viable.  This is not going to be an easy problem to solve and advice should be sought.  This is another area where reputational damage is a risk.

What about an employee who develops symptoms of COVID-19?

The rules on this remain the same - staff who develop symptoms of COVID-19 or who live with someone who does must self-isolate for up to 14 days.  Employees should also be reminded not to attend the workplace if they are showing symptoms, and should be sent home immediately if they do attend.

What if the business needs fewer employees when the furlough scheme ends?

If the business is no longer able to continue trading or you need fewer staff you may need to consider redundancies.  Depending on the number of affected employees you may need to carry out collective consultation with union or employee representatives.

In broad terms, if you are planning 20 or more redundancies (but less than 100) you must start collective consultation 30 days before giving notice of the first redundancy.  If the number is 100 or more you must start collective consultation 45 days before giving notice of the first redundancy.  You must also give formal notice to the Department for Business, Energy and Industrial Services.  If fewer than 20 employees are affected you will need to consult individually.  Consultation during furlough will be more challenging than usual but it must be done.  Although a "special circumstances" defence for failing to consult properly exists it is unlikely it can be used in these circumstances as the difficulties are known well in advance.  Specific guidance should be sought for your particular circumstances as to when the consultation should begin and exactly what a redundancy procedure involves.

Can pay or working hours be changed on return from furlough?

Yes they can if proper processes are followed.  The changes can usually be effected by (1) individual or collective agreement or (2) by imposing the change.  The degree of risk to the employer depends on which option is required and advice should be sought before proceeding.

For more advice on this please contact Innes Clark on innes.clark@morton-fraser.com.

The content of this Q&A are for information only and is not intended to be construed as legal advice. You should take advice on specific circumstances