Getting back to work

What does the Government’s announcement on 11 May 2020 mean for employers?

On 11 May 2020, the Government published its roadmap COVID-19 recovery strategy. The following points are relevant in the employment context:

  • The Government will work with businesses and unions to enable individuals to return to workplaces safely.
  • For the foreseeable future, workers should continue to work from home wherever possible.
  • From 13 May 2020, all workers in England who cannot do this should travel to work if their workplace is open. Workplaces should follow the new Working Safely guidance.
  • Anyone who has symptoms of COVID-19, or who lives in a household where someone has symptoms, should not leave their home to go to work.

Annex A of the Government’s roadmap sets out the following principles, which individuals should follow:

  • Work from home if they can but travel to work if their workplace is open and they cannot work from home. Employers should consider reasonable adjustments to enable working from home.
  • Reduce the number of people they spend time with at work where they can (for example, by changing shift patterns).
  • Walk or cycle to work wherever possible and avoid peak travel times. Employers should consider staggering working hours, among other measures.
  • Follow advice given to them by their employer when at work

Annex B advises all clinically extremely vulnerable individuals to continue to stay at home at all times (and, therefore, not return to their workplace) until the end of June 2020.

The rules on which workplaces can open are different for England, Scotland, Wales and Northern Ireland. Therefore, if you have premises in different countries you will need to make sure you are applying the relevant guidance in each workplace.

The new guidance is also reflected in the Social Distancing Guidance which was republished on 11 May 2020, and the Staying Safe Guidance. The types of businesses that must remain closed are largely unchanged, although garden centres and outdoor sports facilities have been permitted to open since 13 May 2020, provided that certain social distancing measures are in place.

If you open your workplace, what do you need to do?

First you need to check that you’re the type of workplace that can reopen under the current guidance, and that you refer to the guidance applicable to your location.

The Government’s updated Coronavirus outbreak FAQs: “what you can and can’t do” (applicable in England only), provides additional guidance on returning to work. Employers are advised to make “all efforts” to enable individuals to work from home. Where a worker doesn’t want to return to the workplace employers and workers are encouraged to discuss and agree working arrangements, and come to a “pragmatic agreement”.

Employers should discuss workplace risk assessments with workers, as workers are able to report concerns to their local authority or the Health and Safety Executive. When reopening the workplace you should also be aware of how your workers travel to work. The Government’s guidance reiterates the advice to cycle or walk to work where possible, and to wear a face covering when using public transport.

How can social distancing be achieved in the workplace?

Acas guidance states that, if a workplace is open, employers have a duty of care to ensure the health, safety and wellbeing of all staff, customers, and anyone else who visits the workplace. The employer must:

  • Encourage staff to work from home wherever possible.

The Working Safely guidance comprises general guidance for employers, and eight workplace-specific guidance documents. A downloadable notice is provided in each of the workplace-specific guidance documents, which employers should display in their workplaces to demonstrate compliance with the Government’s guidance.

Key areas of the guidance are:

  • Working from home. Individuals should work from home if they can, and “all reasonable steps” should be taken by employers to enable individuals to work from home. From 13 May 2020, individuals who cannot work from home should go to work if their workplace is open.
  • Risk assessments. Employers must carry out COVID-19 risk assessments in consultation with their workers or trade unions in order to establish what guidelines to put in place. If possible, employers should publish the results of their risk assessment on their website and the Government “expects” all businesses with over 50 employees to do so.
  • Maintaining social distancing. Social distancing of two metres should be maintained in workplaces wherever possible. Employers should re-design workspaces to maintain this level of social distancing by staggering start times, creating “one-way walk-throughs”, opening more entrances and exits, or changing seating layouts in break rooms. Where social distancing of two metres cannot be maintained in a workplace, employers should manage the transmission risk of COVID-19. The guidance suggests that employers could put barriers in shared spaces, create workplace shift patterns or fixed teams designed to minimise the number of individuals coming into contact with one another, or ensure that colleagues are facing away from each other.
  • Cleaning. Cleaning processes should be reinforced, by cleaning workplaces more frequently and paying close attention to high-contact objects (such as door handles and keyboards). Employers should provide handwashing facilities or hand sanitisers at workplace entry and exit points.

On 13 May 2020, the Government published Guidance COVID-19 Roadmap Taskforces, which sets out details about five new ministerial led taskforces that have been set up to plan how the following sectors that are currently closed can re-open safely:

  • Pubs and restaurants (Department for Business, Energy and industrial Strategy).
  • Non-essential retail (including salons) (Department for Business, Energy and industrial Strategy).
  • Recreation and leisure, including tourism, culture and heritage, libraries, entertainment and sport (Department for Culture, Media and Sport).
  • Places of worship (Ministry for Housing, Communities and Local Government).
  • International aviation (Department for Transport).

The taskforces will be tasked with developing COVID-19 secure guidelines for each sector, building on the existing workplace guidance.

To find out more about returning to work join our webinar on 3 June from 12pm – 1pm. Our Managing Director and Solicitor, James Howell, will be discussing how an employer might make changes to employees’ terms of conditions. Specialist employment and commercial barrister, Allan Roberts of Guildhall Chambers, will be joining us to discuss how employers can ensure their employees’ safety when returning to work and the legal and practical issues around making redundancies. Find out more here.

The information in this article is provided for general information purposes only. It should not be considered legal advice and you should not rely on this information in making any business, legal or other decisions. MS Rubric shall have no liability to you in respect of the information contained in this article, without limitation, including arising by any breach of contract, arising by tort (including, without limitation, the tort of negligence or negligent misstatement) or arising by a breach of statutory duty.