Unlocking the office could have legal implications for employers
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After ten weeks or so of lockdown, restrictions are beginning to ease and employers and employees alike are beginning to contemplate what this so-called “new normal” will look like.
Employees are going to have mixed reactions and each sector and business will have their own needs so there will be no standard approach that suits all. There will be factors around childcare, transportation, health concerns and some people’s desire to remain working at home for productivity. How you handle this will very much depend on the business needs, but the law and government guidance should be considered carefully.
Read more: Lockdown loosening to continue as ‘shielders’ freed to go outside
From a legal perspective the important things to be aware of include:
1) Communication is key
Planning a staggered return to the workplace, where should an employer begin?
The key for employers is to have a clear and documented plan, amended transparent policies and, in my opinion , you should engage in early conversations with your team to get everyone on board, where possible.
To take my firm as an example, I have found reaching out to understand my team’s needs and balancing those against the business I believe distilled confidence, loyalty, whilst allowing the business to thrive. As a result the team spirit remains strong and we are developing a return to the office plan together.
2) Continue remote or flexible working where necessary
An employer will need to be careful to address this with all staff in a non-discriminatory way. Those in ‘at risk groups’ for age or underling conditions or with a disability should be protected under the Equality Act so an employer should keep them on furlough or consider remote working or make other reasonable adjustments. Those with children that cannot return as a result should be considered fairly as suggesting one gender should manage the children over another could result in a discrimination claim.
3) Staggering work times or days
It is likely that businesses are going to need to give employees more flexibility due to childcare arrangements and to curb the number of people on public transport. So different hours and days may need to be discussed and rotas addressed. This must all be agreed with the employee as any contract variation must be by consent.
4) Social distancing
This is here to stay for a while and employers are going to need to consider how employees get to work and operate safely. A risk assessment will be necessary and policies should be conveyed to employees in a clear manner. We would also strongly suggest they are given contact details and a forum to have the opportunity to discuss any concerns, they may have.
5) Can you test your employees for Covid-19?
It is unlikely that an employment contract would be drafted in a blanket way in which to force employees to take any such test. If your employee consents you can set up testing facilities or pay for testing – but how you store and who has access and use of this medical information needs to be considered carefully under the privacy rules.
An employer has a legal health and safety obligation to provide a reasonably safe place of work. We recommend the policy states that if an employee shows symptoms, it must require them to leave immediately and not return until they have been tested. If positive the employer would then have to take measures to protect the rest of the workforce.
6) Does an Employer need to Provide PPE?
Employers will need to be aware of ‘The PPE Regulation 1992’ and it should now be on the forefront of all employers’ minds. The contentious point here will be what is ‘reasonably practical’ so a documented plan can evidence careful consideration has been taken.
7) Reintroducing furloughed members of staff
In August the scheme allows you to bring staff back to the office on a part-time basis otherwise furlough can continue to October. Motivating staff during furlough and those continuing to work should be a key consideration for any employer that wants its team to pull together post-pandemic.
Those who were furloughed may feel out of touch, perhaps a return to work interview and review of any training requirements, will be required. If you can give them training whilst on furlough or have regular touch in calls this may help them feel less isolated and assists bring them back into the working environment.
The principle message, aside from a clear plan and policies, is to communicate with your staff, have early conversations, listen to their concerns and plan the return together. This strategy will encourage people to trust and follow you.