An employee washes their hands at a sink

Lifting the lockdown – facilitating a return to the workplace

28 May 2020

Following developments in the government’s COVID-19 recovery strategy, Shoosmiths have put together the following checklist for employers to use when considering how to facilitate a return to the workplace.

Have you carried out a detailed risk assessment?

Whilst the content of the risk assessment will vary depending upon the nature of your business, the government has provided some sector specific guidance which can be found here.

Key things for you to think about include:

Are you able to maintain social distancing at all times? Will this require you to rearrange workstations? Do you need to set up plexiglass screens? Do you need to reduce the number of employees that are permitted to come on site/into work at any given time?
Can employees work side-to-side rather than face-to-face?
Are you going to implement one-way systems?
How are you going to clean the workplace before people return and each day whilst the pandemic is ongoing?
Is the use of PPE necessary to enable your employees to carry out their duties safely?
Are you going to ask employees about their current state of health or that of members of their household?
How are you going to manage canteens or other communal areas to ensure social distancing is maintained?
How are you going to communicate the changes to your employees?
Who is going to enforce the new rules?

We are finding that a lot of businesses are placing their focus on PPE and, while it is necessary for this to be considered/utilised, it should not be seen as an alternative to social distancing or a means of avoiding the need for physical barriers or re-arranged workstations. The government guidance advises that, when managing the risk of COVID-19, additional PPE beyond what you would usually wear is not beneficial.

If your organisation has more than 50 employees, the HSE expects the results of your risk assessment to be published on your website. While this isn’t a statutory requirement and therefore there is no financial penalty for non-compliance, failure to do so could have negative PR consequences or result in a disgruntled employee complaining to the local authority or the HSE (see below for more on this). Any report to the HSE may then prompt a visit, which could lead to the HSE identifying areas of non-compliance that do have criminal penalties (such a failure could include the failure to carry out an adequate risk assessment).

How are you going to communicate any changes and who is going to enforce them?

While these questions will form an essential part of your risk assessment, they are worth particular consideration here.

If you have existing representatives, you should engage with them to explain and, ideally, agree any changes to working arrangements. If you do not already have appropriate representatives in place and intend to put some in place these representatives need to be elected by the workforce. Otherwise you will need to consult with your entire workforce about the changes.
To make sure that people understand what is required, do you need to implement specific training? We would expect, for example, that where the use of PPE is appropriate, employees would need to be trained in how to put it on and use it correctly.
As with any employee-facing policy, to ensure that you are able to fairly enforce it you need to make sure that employees are clear about what is required of them and that the potential sanction for non-compliance has been clearly communicated. With this in mind, employees should be asked to sign to say that they have read and understood the new rules.

What information are you going to ask your employees to provide and what are the implications of this from a data protection perspective?

If you are going to ask your employees to provide information about whether or not they or anyone in their household has symptoms of coronavirus or if you are going to test your employees (when tests become more readily available) then you will be processing special category information for the purposes of the GDPR. You will therefore need to consider:

What legal ground are you relying on for the processing? In the private sector you are likely to be able to rely on your legitimate interests, as well as the fact that the processing is necessary for performing or exercising obligations that are imposed on you in connection with an individual’s employment.
Have you carried out a data protection impact assessment (DPIA)? If you are asking about employees’ health, we would expect a DPIA to be necessary.
Can you limit the data that you are proposing to process? For example, can you ask that employees provide generic information about their household rather than specific details (i.e. “someone in my household has symptoms” rather than “my mum has symptoms”)? If you are carrying out a test, is it necessary for you to process any information other than the result?
Do you need to update your workforce privacy notice?

The ICO has released new guidance on employee testing which can be found here.

Have you checked your employers’ liability insurance?

Employers must have insurance to cover their liability for bodily injuries and illness suffered by their employees for at least £5 million. A typical employer’s liability policy will have few exclusions in the UK as this is a compulsory insurance and insurers will have an obligation to pay a claim. However, insurers could in theory seek from a recovery of damages paid out if they can show that reasonable steps were not taken to prevent injury or illness.

Having insurance in place does not absolve employers of responsibility for any lack of employee protection, including – for example – the provision of PPE and safe distancing.

The policy may require the employer to repay the insurer if there have been serious failures on the part of the employer, if they have acted recklessly, or if there is a fundamental breach of policy terms and conditions. Employers would be well advised to review a) the extent of cover and b) specific terms and obligations and ensure these are being met.

What will you do if an employee refuses to come back to work?

The best course of action will naturally vary depending upon the employee in question and their specific concerns. However, as an employer you will need to be alive to the following risks:

If the employee has over two years’ service, they will have unfair dismissal protection so you would need to have both a fair reason to dismiss, as well as follow a fair procedure. It is highly unlikely that a gross misconduct dismissal for unauthorised absence would be fair if the employee has legitimate concerns and/or you have not taken steps to understand those concerns and remedy them where reasonable.
If the employee has raised specific concerns about returning to work then you will need to consider whether or not the raising of those concerns meets the definition of a qualifying disclosure for the purposes of a whistleblowing complaint. The employee would be protected against detriment and dismissal on the grounds of that disclosure so it would be important for any action taken to be distanced from the disclosure itself. It is important for employers to remember that employees without two years’ service can bring whistleblowing claims.
There are specific rules in place that protect employees if they refuse to attend work where they believe the workplace poses serious and imminent danger. If the employee does hold this belief reasonably and are dismissed because they fail to attend work, that dismissal will be automatically unfair. Again, no qualifying service is necessary. The fact that an employer has complied with government guidance about making their workplace COVID-19-safe is not a get out of jail free card; however, evidence of compliance will be useful if a claim lands.

What processes do you have in place for employees to raise concerns?

The government guidance is clear that employers can contact their trade union or the HSE if they have concerns about the safety of their workplace. While a breach of the government guidance will not result in a financial penalty, a complaint to the HSE could result in an inspection (which may result in penalties if material breaches are found along with the service of enforcement notices). Unhappy employees could also go to the media, which could cause reputational damage. It is therefore important that employers have processes in place to encourage employees to resolve matters internally. We would recommend that you think about the following:

Do you have a specific COVID-19 policy? If so, does it include a mechanism for raising concerns?
If there isn’t anything in your COVID-19 policy, when was the last time you refreshed your grievance and whistleblowing policies? Are they up to date?
Are the relevant policies readily available? As part of any COVID-19 training, we would recommend that you remind your employees that such policies are in place.
Are your managers adequately trained to recognise when a concern is being raised and the appropriate channels for that concern to be managed? It’s important that complaints don’t go under the radar.
Do you need to adapt your policy so that investigations can be carried out in a safe way? For example, it is likely that investigation meetings will need to be carried out by phone or video call whenever possible.

This note is intended to provide general guidance and is not a substitute for legal advice.

Amy Anderson is a Senior Associate, Emma Morgan is a Partner and Hayley Saunders is a Partner at law firm Shoosmiths.

Shoosmiths’ free online COVID-19 hub can be found at www.shoosmiths.co.uk/expertise/resources/coronavirus-covid-19-hub