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COVID-19: emerging from lockdown and returning to work

(1 June 2020)

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Government and Acas guidance .............................................................................................................4

Government recovery strategy plan .................................................................................................... 4

COVID-19 Secure guidelines (working safely) .................................................................................... 4

Guidance for employers and businesses on coronavirus (COVID-19) ................................................ 4

Acas guidance .................................................................................................................................... 5

Entering lockdown: restrictions on businesses ....................................................................................5

Businesses permitted to remain open: homeworking and social distancing ........................................ 5

Emerging from lockdown: step-by-step reopening of businesses .....................................................6

Step One: from 13 May 2020 ............................................................................................................. 7

Step Two: from 1 June 2020 .............................................................................................................. 7

Step Three: not before 4 July 2020 .................................................................................................... 7

Emerging from lockdown: five steps to working safely .......................................................................8

Emerging from lockdown: COVID-19 Secure guidelines ......................................................................9

Application of COVID-19 Secure guidelines in specific workplace settings ......................................9

Approach to risk ................................................................................................................................. 9

Who can return to work .................................................................................................................... 10

Communicating about return to work ................................................................................................ 12

Personal protective equipment (PPE) and face coverings ................................................................ 13

Social distancing at work .................................................................................................................. 14

Shift patterns and working groups .................................................................................................... 16

Managing customers, visitors and contractors .................................................................................. 16

Workplace health and safety .................................................................................................................. 17

HSE: guidance and enforcement ...................................................................................................... 17

Employer duty to consult on health and safety ................................................................................. 18

Health and safety policies ................................................................................................................ 18

Risk assessments ............................................................................................................................ 19

Employee responsibilities ................................................................................................................. 20

Communicating with the workforce ...................................................................................................... 20

Preparing workplaces for a return from lockdown .............................................................................. 21

Homeworking ................................................................................................................................... 21

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Flexible working ............................................................................................................................... 21

Policies and procedures ................................................................................................................... 22

Restructuring the employer’s business ................................................................................................ 23

What measures can an employer take if it anticipates a lasting downturn in work? .......................... 23

How should the employer go about making redundancies? .............................................................. 23

How should the employer go about changing terms and conditions of employment? ....................... 23

Workforce issues an employer may face after lockdown ................................................................... 24

Sickness absence ............................................................................................................................ 24

Vulnerable employees ...................................................................................................................... 24

Mental health.................................................................................................................................... 25

Employee fitness for work: monitoring and sharing information ........................................................ 25

Return to work: commuting and attendance at the workplace ........................................................... 25

How MLR can help? ................................................................................................................................. 25

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COVID-19: emerging from lockdown and returning to work by Practical Law Employment

Government and Acas guidance Government recovery strategy plan On 11 May 2020, the government published Our Plan to Rebuild: The UK Government’s COVID-19 recovery strategy (Recovery Strategy). This sets out a “cautious roadmap” to ease existing lockdown measures in what the government suggests will be a safe and measured way, subject to successfully controlling COVID-19 and being able to monitor and react to its spread. It will be kept constantly under review. The Recovery Strategy sets out the government’s intention both to redesign social distancing measures, to reflect the level of risk while taking account of their effect on health, the economy and society, and to wind down economic support schemes while people are eased back into work. The Recovery Strategy notes that it is likely that COVID-19 will circulate in the population long-term. This may cause periodic epidemics and large epidemic waves which will require continuation of some lockdown measures. Given these observations, employers need to be prepared for the impact on their businesses if lockdown measures are reintroduced. COVID-19 Secure guidelines (working safely) On 11 May 2020, the government published the COVID-19 Secure guidelines. They are the result of engagement between the government, the Health and Safety Executive (HSE), public health authorities, business representative groups, unions, employers and local authorities, to agree the best way to make workplaces less infectious. The guidelines make practical suggestions on how work can be undertaken safely and are intended to help employers when undertaking an appropriate COVID-19 risk assessment. The government anticipates that the guidelines will be updated over time. The guidelines apply to eight workplace settings:

Offices and contact centres. Shops and branches. Factories, plants and warehouses. Labs and research facilities. Construction and other outdoor work. Other people’s homes. Restaurants offering takeaway or delivery. Vehicles.

The guidelines are intended for both those businesses that are currently open and for those which the Recovery Strategy anticipates may be able to begin a phased reopening. Guidance for remaining businesses will be provided before they are permitted to open and with sufficient time to enable them to plan. Guidance for employers and businesses on coronavirus (COVID-19)

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BEIS and Public Health England have published Guidance for employers and businesses on coronavirus (COVID-19) which is intended to assist employers, businesses and their staff in staying open safely during COVID-19. The guidance contains sections on:

The principles of social distancing at work. Shift-working and staggering processes (which also considers the use of staff canteens

and rest areas). Acas guidance Acas has published Coronavirus (COVID-19): advice for employers and employees (Acas Guidance) which is has been updated on various occasions. Anticipating the return to work from lockdown, the Acas Guidance suggests that:

It is important for employers and employees to talk as early as possible about when they can return to the workplace. Staff should continue to work from home if they can.

Employers should consult with staff (ask for and consider their views to try and reach an agreement) about returning to work. This includes:

o trade union representatives; o employee representatives; and o health and safety representatives.

Employers should also check any agreements they have with a trade union or employee representatives to see if they must formally consult.

Employees and workers should be ready to return to work at short notice, but employers should be flexible where possible.

Acas recommends that employers should discuss how and when staff might return to the workplace and to share their risk assessments with their workforces. Wherever possible, employers should speak to staff before making a decision or putting plans in writing since this can help staff understand, and feel included in, decisions. Acas also recommends that employers should talk to those employees who are anxious about safety and returning to work and to try to resolve concerns together. It notes that people’s concerns can be fear of catching COVID-19 themselves, being concerned that they risk severe illness if they catch it, that they are living with someone who is shielding or they are caring for children. In these cases, employers may be able to keep someone on furlough, arrange for car parking to avoid use of public transport or stagger working times to avoid peak travel hours. If someone still does not want to go back to work, the employer might enable them to take annual leave or unpaid leave (but is not obliged to do so) and ultimately a refusal to attend work may result in disciplinary action. Acas has also published Coronavirus and mental health at work which is intended to assist employers and employees to manage their mental health during the pandemic, whether they are working from home, anxious about having to leave home to go to work or are furloughed. Entering lockdown: restrictions on businesses Businesses permitted to remain open: homeworking and social distancing The Cabinet Office’s Guidance, Staying at home and away from others (social distancing) called on those businesses which were permitted to remain open to discuss working arrangements with employees and to “take every possible step to facilitate employees working from home”,

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including providing suitable IT and equipment to enable remote working. However, it permitted travel to work where homeworking was not possible. Where employees were continuing to travel to offices and other workplaces, employers were called on to ensure that employees could follow Guidance for employers and businesses on coronavirus (COVID-19) published by Public Health England and BEIS. This guidance suggested that employers:

Make regular announcements to remind staff to follow social distancing advice and wash their hands regularly.

Encourage the use of digital and remote transfers of material where possible rather than paper format.

Ensure sufficient handwashing stations or facilities if possible, providing soap, water, hand sanitiser and tissues and encourage staff to use them

Enable staff to remain two metres apart where possible, using floor markings to mark the distance in the most crowded areas. Where that is not possible enable staff to work side by side or facing each other rather than face to face.

Keep face-to-face contact to 15 minutes or less if it is essential. Keep teams of workers together and as small as possible. Consider shift working or staggering of processes which would enable staff to continue to

operate effectively and at a safe distance (more than two metres) from one another and staggering on-premises hours to reduce use of public transport during peak periods.

Encourage staff to bring their own food to work and to change staff canteens and distributors to takeaway services where possible. Social distancing measures should be applied in rest areas.

On 7 April 2020, the government issued guidance on social distancing for certain sectors which continue to operate during lockdown: BEIS guidance: Social distancing in the workplace during coronavirus (COVID-19): sector guidance (workplace social distancing guidance). This was only applicable in England and provided advice on social distancing for the following sectors:

Shops running a pick-up or delivery service. Working in people’s homes as a tradesperson, cleaner or nanny. Construction. Manufacturing and processing businesses. Retail. Logistics businesses. Outdoor businesses. Farming: visiting farms for animal health and welfare. Fishing or other short-term offshore work. Cargo-shipping or other long-term offshore work. Transport businesses. Waste management businesses.

It advised that employers should also consider advice published by trade associations and similar groups on operating during the pandemic. Emerging from lockdown: step-by-step reopening of businesses The government’s Recovery Strategy was published on 11 May 2020 for England. The “cautious roadmap” which is intended to ease existing lockdown measures in a safe and measured way

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includes a step-by-step approach to lifting restrictions on businesses. These are set out below. Step One: from 13 May 2020 Under Step One, from 13 May 2020 (and subject to local public health and safety requirements for Wales, Scotland and Northern Ireland):

For the foreseeable future, workers should continue to work from home rather than their normal physical workplace, wherever possible. In addition to minimising the number of social contacts and therefore keeping transmissions as low as possible, those who are able to work from home make it possible for those who have to attend workplaces to do so with a reduced risk of overcrowding on transport and in public places.

All workers who cannot work from home should travel to work if their workplace is open. The Recovery Strategy states that those sectors of the economy that are allowed to be open should be open, for example food production, construction, manufacturing, logistics, distribution and scientific research in laboratories.

As soon as practicable, workplaces should follow the “COVID-19 Secure” guidelines. These are intended to enable as many people as possible to resume their livelihoods while ensuring that the risk of infection is as low as possible.

Step Two: from 1 June 2020 Under Step Two:

Non-essential retail will be permitted to open in phases when and where it is safe to do so, and subject to ability to comply with the COVID-19 Secure guidelines. The government will issue guidance on the approach that will be taken to phasing, including which businesses will be covered in each phase and the timeframes involved.

Re-opening more local public transport in urban areas. This will be subject to strict measures to limit, as far as possible, the risk of infection in these normally crowded spaces.

On 25 May 2020, the government announced that with effect from 1 June 2020 outdoor markets and car showrooms would be permitted to reopen. From 15 June 2020, all other non-essential retail including shops selling clothes, shoes, toys, all furniture stores, books, and electronics, tailors, auction houses, photography studios, and indoor markets will be permitted to reopen. Step Three: not before 4 July 2020 Under Step Three, which will not be taken before 4 July 2020 (and which is subject to further detailed scientific advice, provided closer to the time, on how far the government can go) some of the remaining businesses and premises that have been required to close may be able to reopen. The Recovery Strategy groups these as follows:

Personal care (such as hairdressers and beauty salons). Hospitality (such as food service providers, pubs and accommodation). Public places (such as places of worship). Leisure facilities (such as cinemas).

It is noted that some venues are, by design, crowded and that social distancing may be difficult to achieve. Such venues may be able to open in part but may be required to wait longer until they can re-open.

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Emerging from lockdown: five steps to working safely The COVID-19 Secure guidelines are supported by five key steps to working steps which employers need to implement as soon as practicable. These are:

1. Carry out a COVID-19 risk assessment. Before employers restart work they should ensure the safety of their workplaces by:

o carrying out a risk assessment in line with the HSE guidance. o consulting with their workers or trade unions. o sharing the results of their risk assessment with their workforces and on their

websites.

2. When the government announced the publication of the COVID-19 Secure guidelines it suggested that employers should publish the results of their risk assessments on their websites and stated that the government expected all businesses with over 50 employees to do so.

3. Develop cleaning, handwashing and hygiene procedures. Employers are called on to ensure an increased frequency of handwashing and surface cleaning by:

o encouraging people to follow the NHS guidance on hand washing. o providing hand sanitiser around the workplace, in addition to washrooms. o frequently cleaning and disinfecting objects and surfaces that are touched

regularly. o enhancing cleaning for busy areas. o setting clear use and cleaning guidance for toilets. o providing hand drying facilities (either paper towels or electrical dryers).

4. Help people to work from home. Employers should take all reasonable steps to help people

work from home by: o discussing home working arrangements. o ensuring they have the right equipment, for example remote access to work

systems. o including them in all necessary communications. o looking after their physical and mental wellbeing.

5. Maintain two metre social distancing, where possible. Employer should do this by:

o putting up signs to remind workers and visitors of social distancing guidance. o avoiding sharing workstations. o using floor tape or paint to mark areas to help people keep to a two metre distance. o arranging one-way traffic through the workplace if possible. o switching to seeing visitors by appointment only if possible.

Where people cannot be two metres apart, manage transmission risk. Employers should do this by:

o considering whether an activity needs to continue for the business to operate. o keeping the activity time involved as short as possible. o using screens or barriers to separate people from each other. o using back-to-back or side-to-side working whenever possible. o staggering arrival and departure times. o reducing the number of people each person has contact with by using fixed teams

or partnering.

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A downloadable notice has been produced reflecting the five steps which employers should display in their workplaces to show their employees, customers and other visitors that they have followed the government’s guidance. Emerging from lockdown: COVID-19 Secure guidelines The eight workplace specific guidelines for the sectors referred to above are intended to help employers when undertaking an appropriate COVID-19 risk assessment in particular workplace settings. The government states that they expect the guidelines to be updated over time. Application of COVID-19 Secure guidelines in specific workplace settings The COVID-19 Secure guidelines consider similar steps for employers in each of the workplace settings which apply to:

Approach to risk. The guidelines consider how, in order of priority, employers can reduce risk to the lowest reasonably practicable level by taking preventative measures in their workplaces. They recognise that employers cannot completely eliminate the risk of COVID-19.

Who can return to work. The guidelines look at how employers should approach homeworking, the position of staff who are either “extremely clinically vulnerable” or “clinically vulnerable”, employers’ duties under discrimination law and reminds employers about the need for staff to continue to follow self-isolation advice in the event that they or a member of their household experiences COVID-19 symptoms.

Communicating about return to work. Employers need to take steps to ensure that all workers understand COVID-19-related safety procedures.

Personal protective equipment (PPE) and face coverings. The guidelines suggest that additional PPE beyond any already used by employers to protect against non-COVID-19 risks will not be beneficial and is not recommended. Face coverings (as opposed to face masks) are optional and not required by law. The government does not expect to see employers relying on face coverings as risk management for the purpose of their health and safety assessments (because the evidence that using a face covering to protect others is weak and the effect is likely to be small). However, employers should support their workers in using face coverings safely if they choose to wear one.

Social distancing at work. The guidelines consider several aspects of social distancing in addition to general requirements. These are arriving for and leaving work, moving around the workplace, use of the workplace and workstations, the conduct of meetings and use of common areas. The guidelines for those working in other people’s homes and for those working in and from vehicles differs from the other sets of guidelines in addressing the particular demands of these workplace settings.

Shift patterns and working groups. Employers should make changes to the way work is organised to create distinct groups and reduce the number of contacts each employee has.

Work-related travel. Unnecessary work travel should be avoided, where it cannot be avoided staff need to be kept safe when they travel for work.

Accidents, security and other incidents. The guidelines briefly confirm that in these circumstances the priority is safety.

Managing customers, visitors and contractors. Approach to risk Each set of guidelines suggest that employers should reduce risk to the lowest reasonably

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practicable level by taking preventative measures, in the following order of priority:

Increase the frequency of handwashing and surface cleaning. Employers should make every reasonable effort to enable working from home as a first

option. Where working from home is not possible, workplaces should make every reasonable effort to comply with the social distancing guidelines set out by the government (keeping people two metres apart wherever possible).

Where the social distancing guidelines cannot be followed in full, in relation to a particular activity, businesses should consider whether that activity needs to continue for the business to operate, and, if so, take all the mitigating actions possible to reduce the risk of transmission between their staff:

o increasing the frequency of hand washing and surface cleaning; o keeping the activity time involved as short as possible; o using screens or barriers to separate people from each other; o using back-to-back or side-to-side working (rather than face-to-face) whenever

possible; and o reducing the number of people each person has contact with by using “fixed teams

or partnering” (so each person works with only a few others). If people must work face-to-face for a sustained period with more than a small group of

fixed partners, employers will need to assess whether the activity can safely go ahead. The guidelines state that no-one is obliged to work in an unsafe work environment.

The guidelines also state that an employer’s assessment should have particular regard to whether the people doing the work are especially vulnerable to COVID-19. Who can return to work The guidelines address the following:

That the first consideration is that, where possible, staff should work from home. The position of staff who are “clinically extremely vulnerable” (who have been advised to

shield) and those who are “clinically vulnerable”. That in applying this guidance, employers should be mindful of the particular needs of

those with protected characteristics and who are protected by discrimination law (in particular, in these circumstances, those with disabilities and new or expectant mothers).

The guidelines also remind employers that staff should not come to work where they are advised to stay at home under existing government guidance. This includes anyone who has symptoms of COVID-19, anyone in a household with someone who has symptoms and anyone who is advised to self-isolate in accordance with the government’s test and trace strategy. These staff should be enabled to work from home where possible. Otherwise they will be treated as incapable of work for statutory sick pay (SSP) purposes. Homeworking The starting point, underlined by the five steps to working safely that support all the guidelines is that, where possible, everyone should work from home. It is recognised that working from home is unrealistic for those who work in other people’s homes or who work in or from vehicles. Some recommendations are made for those working in other people’s homes. In other settings, employers should consider who is needed on-site.

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In each of these workplaces, and where staff working in or from vehicles, an employer should:

Plan for the minimum number of people needed on site to operate safely and effectively. Where the employer has staff working in or from vehicles they should plan for the minimum needed to be deployed in the field to operate safely and effectively.

Monitor the wellbeing of people who are working from home and help them stay connected to the rest of the workforce, especially if the majority of their colleagues are on-site.

Keep in touch with off-site workers on their working arrangements including their welfare, mental and physical health and personal security.

Provide equipment for people to work at home safely and effectively, for example, by providing remote access to work systems.

Vulnerable staff The guidelines take the same approach to vulnerable staff across all workplace settings, their objective being to protect “clinically extremely vulnerable” and “clinically vulnerable” individuals. Clinically extremely vulnerable staff who have been advised to shield On 21 March 2020, the government published Guidance on shielding and protecting people who are clinically extremely vulnerable from COVID-19. Those suffering from specific medical conditions were advised to stay at home at all times and avoid any face-to-face contact (referred to as shielding). Members of this group were notified by letter from the NHS that, in accordance with the guidance, they need to follow rigorously shielding measures for a specified period. It is understood that initial notifications to shield for 12 weeks were sent out on 23 March and were due to end on 15 June 2020. However, the period was extended until the end of June. Whether and, if so, for how much longer this group may be advised to continue to shield has been the subject of debate. The COVID-19 Secure guidelines note that the “clinically extremely vulnerable” have been “strongly advised not to work outside the home”. However, the guidelines are silent on what happens when these staff cannot work from home. Since 16 April 2020, shielding employees are deemed to be incapable of work for the purposes of statutory sick pay (SSP). Clinically vulnerable staff On 11 May 2020, the government published Guidance, Staying alert and safe (social distancing). This guidance identifies clinically vulnerable people who, in summary, are:

Individuals aged 70 and over (regardless of medical conditions). Individuals aged under 70 with a specified underlying health condition (which includes

anyone instructed to get a flu jab each year on medical grounds). Pregnant women.

Clinically vulnerable people are advised to stay at home as much as possible and take “particular care to minimise contact with others outside their household”. However, the guidance suggests that where it is not possible for these individuals to work from home, they can go to work. The COVID-19 Secure guidelines suggest that clinically vulnerable employees “should be helped to work from home, either in their current role or in an alternative role”. Where it is not possible for them to work from home, they should be offered the option of the safest available on-site roles,

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enabling them to stay two metres away from others. Where this is not possible, an employer should “carefully assess whether this involves an acceptable level of risk”, taking into account specific duties for those with protected characteristics. Staff who live with either clinically extremely vulnerable or clinically vulnerable people While the COVID-19 Secure guidelines suggest that “particular attention should also be paid to people who live with clinically extremely vulnerable individuals” they do not make any suggestion about what that will mean in practice for employers. Many employees who share households with those who are either clinically extremely vulnerable or clinically vulnerable may have concerns about returning to work (either because they need to commute using public transport or because they are concerned about being in the workplace). Equality and discrimination law The guidelines suggest that employers should:

Understand and take the particular circumstances of those with protected characteristics into account.

Involve and communicate appropriately with workers whose protected characteristics might either expose them to a different degree of risk or might make any measures the employer is considering implementing inappropriate or challenging for them.

Consider whether they need to make adjustments to take account of their duties under discrimination law.

Make reasonable adjustments to avoid disabled workers being put at a disadvantage. Assess health and safety risks for new or expectant mothers. Make sure that the steps they take do not have an unjustifiable negative impact on some

groups compared to others, for example, those with caring responsibilities or those with religious commitments.

Communicating about return to work The objective in all the workplace guidelines is to ensure that all workers understand COVID-19 related safety procedures. When returning to work the guidelines suggest that employers should:

Provide clear, consistent and regular communication to improve understanding and consistency in ways of working.

Engage with workers through existing communication routes and worker representatives to explain and agree any changes in working arrangements.

Develop communication and training materials for workers prior to their return, especially around new procedures for arriving at work.

Thereafter, to ensure that all workers are kept up to date with how safety measures are being implemented or updated, the guidelines suggest that the following will usually be needed:

Ongoing engagement with workers (including through trades unions or employee representative groups) to monitor and understand any unforeseen impacts of changes to working environments.

Awareness and focus on the importance of mental health at times of uncertainty. Using simple, clear messaging to explain guidelines using images and clear language, with

consideration of groups for which English may not be their first language.

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Using visual communications, for example whiteboards or signage, to explain changes to schedules, breakdowns or materials shortages to reduce the need for face-to-face communications.

Communicating approaches and operational procedures to suppliers, customers or trade bodies to help their adoption and to share experience.

Personal protective equipment (PPE) and face coverings PPE PPE (such as face masks, safety helmets, gloves, eye protection, high-visibility clothing, safety footwear and safety harnesses) protects the user against health or safety risks. The guidelines suggest that where employers already use PPE to protect against non-COVID-19 risks they should continue to do so. However, the guidelines suggest that, when managing the risk of COVID-19, additional PPE beyond that already used will not be beneficial. This is because the risks posed by COVID-19 need to be managed through social distancing, hygiene and fixed teams or partnering, not through use of PPE. There is an exception for clinical settings (such as hospitals). The guidelines conclude that:

Workplaces should not encourage the precautionary use of extra PPE to protect against COVID-19 outside clinical settings or when responding to a suspected or confirmed case of COVID-19.

Unless a workplace is in a situation where the risk of COVID-19 transmission is very high, a risk assessment should reflect the fact that the role of PPE in providing additional protection is extremely limited.

If a risk assessment shows that PPE is required it must be provided free of charge to workers who need it. Any PPE provided must fit properly.

Face coverings (as distinct from face masks) A face covering is distinct from a face mask (such as a surgical mask) and from the PPE used to manage risks like dust and spray in an industrial context. Supplies of PPE, including face masks, must continue to be reserved for those who need them. A face covering, which covers the mouth and nose, may be worn in enclosed spaces where social distancing is not possible. The guidelines suggest that there are some circumstances when wearing a face covering may be marginally beneficial as a precautionary measure and that, while the covering will not protect the wearer, it may protect others if the wearer is infected but has not developed symptoms. However, the guidelines go on to state that the government does not expect to see employers relying on face coverings as risk management for the purpose of their health and safety assessments. This is because the evidence that using a face covering to protect others is weak and the effect is likely to be small. Accordingly, face coverings are not a replacement for better ways of managing risk (such as minimising time spent in contact). Wearing a face covering is optional and is not required by law, including in the workplace. The guidelines suggest that employers should support their workers in using face coverings safely if they choose to wear one by telling them to:

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Wash their hands thoroughly with soap and water for 20 seconds or use hand sanitiser

before putting a face covering on, and after removing it. Avoid touching their face or face covering when it is on (as they could contaminate them

with germs from their hands). Change their face covering if it becomes damp or if they have touched it. Continue to wash their hands regularly. Change and wash a face covering daily (in line with any manufacturer’s instructions) or

dispose of it in their usual waste if it is not washable. Practice social distancing wherever possible.

Social distancing at work The guidelines consider the following aspects of social distancing at work:

General requirements of social distancing. Coming to and leaving work. Moving around buildings and worksites. Workplaces and workstations. Meetings. Common areas.

While the general requirements of social distancing suggested for those who work in other people’s homes and those who work in or from vehicles are similar to other workplace settings, the guidelines diverge given the particular workplace settings and are considered in Social distancing for those working in other people’s homes and Social distancing for those working in and from vehicles. General requirements of social distancing The guidelines set out the objective for two metres’ social distancing to be maintained wherever possible, including when arriving at and departing from work, while in work, and when travelling between sites. Where this cannot be followed in full in relation to a particular activity, businesses should consider whether that activity needs to continue for the business to operate, and, if so, take all the mitigating actions possible to reduce the risk of transmission between their staff. Mitigating actions include:

Increased frequency of hand washing and surface cleaning. Keeping activity time involved as short as possible. Using screens or barriers to separate people. Using back-to-back or side-to-side working (rather than face-to-face) where possible. Reducing the number of people each person has contact with by using fixed teams or

partnering (so that each person only works with a few others). Coming to and leaving work The guidelines set out the objective of maintaining social distancing wherever possible, on arrival and departure and to ensure handwashing upon arrival. Steps that will usually be required are:

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Staggering arrival and departure times. This will reduce crowding into and out of the

workplace. It should take account of the impact on those with protected characteristics. Provision of additional parking or facilities such as bike racks. Limiting passengers in corporate vehicles, for example, work minibuses. This could

include leaving seats empty. Reducing congestion, for example, by having more entry points to the workplace. Providing more storage for workers for clothes and bags. Where people are working in a

restaurant it is suggested that uniforms should be washed on site rather than by individual staff members at home.

Using markings and introducing one-way flow at entry and exit points. Providing handwashing facilities, or hand sanitiser where not possible, at entry and exit

points and providing alternatives to touch-based security devices such as keypads. Adjusting procedures at entry or exit points where appropriate, for example, deactivating

turnstiles requiring pass checks having passes checked by security personnel at a distance.

Moving around buildings and worksites The guidelines suggest that, to maintain social distancing wherever possible while people travel through the workplace, the following steps will usually be needed:

Reducing movement by discouraging non-essential trips within buildings and sites. Restricting access between different areas of a building or site. Reducing job and location or equipment rotation. Introducing more one-way flow through buildings. Reducing maximum occupancy for lifts . Providing hand sanitiser for the operation of lifts

and encouraging use of stairs wherever possible. Regulating use of high traffic areas including corridors, lifts turnstiles and walkways.

Workplaces and workstations To manage occupancy levels so that social distancing between individuals can be maintained when they are at their workstations, the steps an employer will usually need to take are:

Assigning workstations to individuals. If sharing workstations is unavoidable they should be shared by the smallest possible number of people.

Keeping workstations two metres apart. If that is not possible the business should consider whether the activity in question needs to continue for the business to operate and, if so, take all mitigating actions possible to reduce the risk of transmission: people should work side by side or facing away from each other rather than face-to-face and screens should be used to separate people.

Where using hot desks and spaces cannot be avoided, cleaning workstations and shared equipment between occupants.

Using floor tape or paint to mark areas to help workers keep to a two metre distance. Meetings In order to reduce transmission of COVID-19, the guidelines suggest:

Avoiding in-person meetings by using remote working tools.

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Where in-person meetings take place, only those absolutely necessary should attend, maintaining two metre separation throughout. Hand sanitiser should be provided in meeting rooms and pens and other objects should not be shared. Meeting rooms should be well-ventilated, and thought should be given to holding meetings outdoors.

For areas where regular meetings take place, using floor signage to help people maintain social distancing.

Common areas The guidelines make the following suggestions in order to maintain social distancing while using common areas:

In multi-tenant sites or buildings, businesses will need to work collaboratively with landlords and other tenants to ensure consistency across common areas, for example, receptions and staircases.

In reception and similar areas install screens to protect staff. Regulate use of locker rooms, changing areas and other facility areas to reduce concurrent

usage. Encourage storage of personal items and clothing in lockers or other personal storage spaces.

Stagger break times to reduce pressure on break rooms or canteens. Use safe outside areas for breaks or creating space by using other parts of the workplace that have been freed up by remote working.

Avoid fully opening staff canteens by providing packaged meals and encouraging staff to bring their own food. Arranging seating and tables to maintain spacing and reduce face-to-face interactions.

Encouraging staff to remain on-site and, when not possible, maintaining social distancing while off-site.

Shift patterns and working groups The guidelines suggest that employers should change the way work is organised to create distinct groups and reduce the number of contacts each employee has. For each workplace setting, the guidelines suggest:

As far as possible, where staff are split into teams or shift groups these should be fixed so that where contact is unavoidable, this happens between the same people.

Identifying areas where people directly pass things to each other and finding ways to remove direct contact, such as using drop-off points or transfer zones.

The guidance for those in construction also suggests:

For those workers who are required to travel and stay away from home in onsite accommodation, creating fixed groups of workers so that where contact is unavoidable, this happens between the same people.

Minimising worker congregation at bottlenecks such as timeclocks, entrances and exits and maintaining social distancing during shift handovers.

Managing customers, visitors and contractors The objective of the guidelines is to minimise the number of unnecessary visits or to minimise contact during visits while ensuring that those who do attend understand what they need to do

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to maintain safety. The guidance recommends:

Where visits cannot be undertaken by remote connection and are required, guidance on social distancing and hygiene should be explained before arrival (for example, by phone, by email or direction to a website) and on arrival (for example, by signage or other visual aids).

The number of visitors should be limited at any one time and a record of all visitors maintained, if possible.

Reviewing entry and exit routes for visitors and contractors to minimise contact with other people.

Establishing host responsibilities relating to COVID-19 and providing any necessary training for people who act as hosts for visitors.

Consider revising schedules for essential services and contractor visits to reduce interaction and overlap between people, for example, carrying out services at night.

Workplace health and safety Employers have both statutory and common law duties for health and safety. The Health and Safety at Work etc. Act 1974 (HSWA 1974) imposes a general duty on employers to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all their employees. It sets out the basic health and safety duties of a company, its directors, managers and employees and acts as the framework for other health and safety regulations. In particular, employers should ensure:

Provision and maintenance of plant and systems of work that are, so far as is reasonably practicable, safe and without risks to health.

Safe use, handling, storage and transport of articles and substances. Information, instruction, training and supervision as is required to ensure, so far as

reasonably practicable, the health and safety of employees at work. Places of work under the employer’s control are, so far as is reasonably practicable, safe

for work and without risks to health (with safe entrances and exits). Provision and maintenance of a safe working environment with adequate facilities and

arrangements for welfare at work. In addition to their statutory duties, all employers have a common law duty to take reasonable care for the safety of their employees; they have a duty to see that reasonable care is taken to provide them with a safe place of work, safe tools and equipment, and a safe system of working. It is an implied term of employment contracts that employers will take reasonable care of the health and safety of employees and provide a reasonably suitable working environment for performance of the employee’s contractual duties. Where employees raise concerns about health and safety, they are potentially protected from unfair constructive dismissal, from detriment and dismissal by the health and safety provisions and by whistleblowing legislation. HSE: guidance and enforcement The Health and Safety Executive (HSE) is responsible for promoting better health and safety at work. It provides guidance for employers on a range of health and safety issues, including:

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Working safely during the coronavirus outbreak. This guide sets out simple steps employers can take to help manage the risk of COVID-19 while continuing to run their businesses.

Talking with your workers about preventing coronavirus. This guide is aimed at all employers and explains how they can talk to workers about preventing COVID-19 in the workplace. It gives guidance on reducing the risks, for example, by putting in place social distancing measures, staggering shifts and providing additional handwashing facilities.

Health and safety at work: criminal and civil law. Providing information and training. This guide is intended to assist employers to tell their

staff what their health and safety duties are. Consulting workers. This brief guide suggests ways employers can consult their

employees on health and safety. Preparing health and safety policies. This resource contains a template health and safety

policy. Managing risk and risk assessments at work. This resource contains a template risk

assessment.

Generally, health and safety legislation does not create rights for employees to sue employers directly for damages in the event of a breach by the employer. The HSE can take enforcement action against employers and they may face criminal sanctions (fines or imprisonment (or both) in serious cases). On 11 May 2020, when it announced the publication of the COVID-19 Secure guidelines, the government stated that it was making an extra £14 million available for the HSE (equivalent to an increase of 10% of its budget) for extra call centre employees, inspectors and equipment if needed. Employer duty to consult on health and safety Each of the COVID-19 Secure guidelines states that employers have a duty to consult their employees on health and safety. It is suggested that employers can achieve this by listening and talking to them about their work and how risks from COVID-19 will be managed. Since employees do the work they often have the best understanding of the risks and will have views on how to work safely. By involving them in making decisions, employers demonstrate that they are taking employees’ health and safety seriously. The guidelines reiterate the requirement for an employer to consult with the health and safety representative selected by a recognised trade union or, if there isn’t one, a representative chosen by workers. The HSE guide, Talking with your workers about preventing coronavirus, notes that employers must consult all their workers on health and safety. It is a two-way process, allowing workers to raise concerns and influence decisions on managing health and safety. A small business might choose to consult workers directly whereas larger businesses may consult through a health and safety representative. Health and safety policies If an employer employs five or more people:

It must have a written statement setting out its general health and safety policy with respect to its employees and organisation (a health and safety policy), and the arrangements for carrying out the policy.

It must bring its health and safety policy, and any revision of it, to the attention of all its

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employees. Risk assessments The HSE has produced Managing risk and risk assessments at work (which contains a risk assessment template) to assist employers undertake risk assessments. The HSE suggests that the minimum an employer must do is:

Identify what in their business could cause illness or injury (hazards). Decide how likely it is that someone could be harmed and how seriously (the risk). Take action to eliminate the hazard, or if this isn’t possible, to control the risk.

As the MHSW Regulations put it, in order to identify any measures it needs to take to comply with its legal obligations, an employer must make a suitable and sufficient assessment of both:

The risks to the health and safety of its employees to which they are exposed whilst they are at work.

The risks to the health and safety of persons not in its employment arising out of or in connection with the conduct of its business.

Where the employer employs five or more employees, it must record:

The significant findings of the assessment. Any group of employees the assessment identifies as being especially at risk.

Matters to be considered in a risk assessment The COVID-19 Secure guidelines are intended to help employers when undertaking an appropriate COVID-19 risk assessment in their workplaces. They make practical suggestions on how work can be undertaken safely. However, each employer will need to consider the particular size and nature of their business, and how it is organised, operated, managed and regulated. They should also take into account agency workers, contractors and other people, as well as employees, when making their assessment. Providing information about the risk assessment Employers must provide their employees with “comprehensible and relevant information” on the following:

The risks to their health and safety identified by the assessment. The preventive and protective measures that the risk assessment has shown the employer

it needs to take to comply with its legal obligations. The procedures to be followed in the event of serious and imminent danger to persons at

work. The identity of the people who will implement any evacuation of the workplace. Where they share a workplace with one or more other employers (whether on a temporary

or a permanent basis), the risks to employee health and safety notified to them by the other employer(s).

The five steps to working safely that accompany the COVID-19 Secure guidelines note that

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employers should share the results of their risk assessment with their workforces and suggests that employers should publish them on their websites. The government expects all businesses with over 50 employees to do so. The government has also produced a notice that employers should display in their workplaces to show that they have followed the guidelines. Employee responsibilities It is not only the employer that should be concerned with health and safety issues since employees also have health and safety responsibilities at work:

To take reasonable care for their health and safety and that of anyone who may be affected by their acts or omissions while at work.

To co-operate with their employer so far as is necessary to enable compliance with any statutory duty or requirement relating to health and safety.

When dealing with a return from lockdown, having undertaken a risk assessment to inform the basis on which it is to reopen and organise its business, an employer needs to ensure it communicates what this means for employees and their behaviour on their return to work. Employers may consider it appropriate to remind employees of their duty to take reasonable care of both their own health and safety and that of their colleagues and other third parties who may be at their workplace. Depending on the employer’s circumstances it may consider it appropriate to warn employees that failure to comply with the social distancing measures the employer has in place to protect staff from infection with COVID-19 will be dealt with under the employer’s disciplinary procedure. Communicating with the workforce Many employers have established methods of communicating with their workforces either through recognised trade unions or staff consultative committees. Those who don’t currently have such means of communicating may wish to set up a staff body to communicate with as part of their dissemination of information to staff. The matters it is likely to need to cover include:

How it intends to emerge from lockdown in line with the government’s advice. What steps it is taking to inform its position and what this means for employees. This could

range from a return to the workplace, proposed changes to terms and conditions of employment or redundancies, which may require both individual and collective consultation.

What changes the employer has made to the workplace to enable and support a return to work and what steps are required of employees when they are at work. Employers should be alert to and acknowledge:

o the levels of stress that employees have been under given the threat of COVID-19 to themselves and their families;

o the impact that lockdown has had on them (they may have been ill or suffered family bereavement, their family may be in financial difficulty);

o the steps they are being asked to take to come back to work (some of which may be making them feel anxious); and

o the importance of open communication and cooperation in making a return to work successful.

The support that the employer has in place for employees, particularly with the impact on their mental health, and the channels of communication that are open to employees if they have concerns or questions about the return to work and news ways of working.

The requirement for staff to remain vigilant about their health and that of members of their

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household and the steps that they must take to self-isolate if they or a member of their household starts to experience symptoms of COVID-19.

Depending on their circumstances, employers may consider creating a COVID-19 policy or procedure to cover the issues relevant to their organisation which it can continue to update and alert staff to as required. Alternatively, it may consider it sufficient to advise employees of any changes to, or use of, existing policies and procedures to as employees return to work. Preparing workplaces for a return from lockdown Homeworking After the lockdown was announced on 23 March 2020, the Cabinet Office’s Guidance, Staying at home and away from others (social distancing) called on those businesses which were permitted to remain open to discuss working arrangements with employees and to “take every possible step to facilitate employees working from home”, including providing suitable IT and equipment to enable remote working. However, it permitted travel to work where homeworking was not possible. As a result, many employees have been working from home. Some may have previously worked at home on an ad hoc basis and others may have already spent some of their working time at home under existing arrangements. For others working from home will have been a sudden and new experience. In ordinary circumstances, employers entering into homeworking arrangements will need to address a range of practical issues, including:

Tailoring standard employment contract clauses to encompass homeworking. Taking appropriate measures to protect confidential information and personal data. Reviewing the health and safety implications of the arrangements, including carrying out

a risk assessment. Deciding whether any special equipment should be provided. Considering whether any special planning or insurance arrangements are required. Deciding what arrangements should be made for the management and supervision of

certain types of homeworkers. Identifying the tax consequences of homeworking.

Flexible working Flexible working can take many forms which may assist an employer to adapt its workforce as lockdown measures are eased but before any return to “business as usual”. For example, it may involve any of:

Homeworking. A change to the hours employees work. A change to the times the employees work.

These could encompass a number of working patterns including part-time working, compressed hours, flexi-time, job-sharing, shift-working, staggered hours and term-time working. While many employers have experienced disruption to their businesses and workplaces, many employees have also experienced disruption to their lives as a result of the lockdown.

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Government guidance has identified some employees as clinically vulnerable (who should take particular care to minimise contact with others outside their household) and individuals who are clinically extremely vulnerable (who have been advised to shield). Employers who cannot arrange homeworking for these individuals should think carefully about requiring them to come into the workplace. There may also be employees who live with or care for vulnerable or extremely vulnerable individuals who may be concerned about travelling to or attending workplaces. Employees who have children may be unable to attend work until nurseries and schools have reopened. Employers may be able to accommodate these employees by agreeing temporary homeworking arrangements. Otherwise, depending on particular circumstances, they could consider agreeing to reduced hours, a more flexible approach to time off to deal with emergencies involving dependants, the use of the right to unpaid parental leave or a period of compassionate leave. It remains open for qualifying employees to exercise their statutory right to request flexible working. Policies and procedures Employers may need to review their staff handbooks or individual policies and procedures to ensure that they are applicable to and support any new ways of working that have been introduced as a result of COVID-19. Policies that may have been affected include:

Sickness absence and pay. The employer may have adjusted notification evidence requirements for COVID-19-related absences (including instances where employees are required to self-isolate even if they are not themselves suffering from symptoms) and may have clarified entitlement to sick pay (in particular to statutory sick pay (SSP)).

Health and safety. Employers may consider it appropriate to remind employees of the employer’s policy and of their duties as regards their own and other’s health and safety and co-operation with the employer.

Disciplinary offences. Employers may consider it appropriate to inform employees that failure to observe social distancing and other measures to protect against infection with COVID-19 will be dealt with under the employer’s disciplinary rules and procedure.

Harassment and bullying. There is the potential that employees may be harassed by colleagues or customers in the workplace because they are perceived to be at a greater risk of having the virus. Employers may consider a return to work to be an appropriate opportunity to remind employees of their anti-harassment and bullying policy.

Homeworking. Many employers have enabled employees to work from home on an emergency basis. As businesses emerge from lockdown the government’s clear message is for employers to continue to facilitate homeworking wherever that is possible. As employers seek to “regularise” homeworking arrangements for many they should consider whether any existing homeworking policy meets these new circumstances.

Flexible working. For consideration of circumstances in which either an employer or employee may wish to adopt certain forms of flexible working.

Enabling employees to take time off work in appropriate circumstances. Employers may consider using family leave, compassionate leave and career break policies when dealing with circumstances affecting individual employees. Some may have concerns about return to work and others may face practical difficulties, for example, in relation to childcare.

Annual leave. As the country starts to emerge from lockdown many employees, who have not been taking holiday, may simultaneously want to book holidays in anticipation of being able to take a break over the summer or into the autumn. Others will wait to book last

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minute breaks when circumstances permit. Employers should consider the practical issues for its workplace of many employees wanting to use annual leave at the same time. They may wish to remind employees of their holiday policy and to alert them to how the employer intends to deal with holiday requests.

Redundancies. Where an employer is faced with making employees redundant. Mental health. As businesses start to emerge from lockdown there is a renewed focus on

employee mental health. Restructuring the employer’s business When employers started to feel the effects of the COVID-19 pandemic many took action before the lockdown was announced. They might have made some employees redundant, laid-off employees or put them on short-time working or agreed variations to employees’ terms and conditions. Others did so in light of restrictions announced with the lockdown and many have made use of the option of furloughing staff under the CJRS. As the government has now set out its plan for leaving lockdown and is due to announce a winding down of the CJRS, employers will be assessing what this will mean for their businesses and the future for their employees. What measures can an employer take if it anticipates a lasting downturn in work? Employers who decide that parts of their business are no longer viable, or that they will face a slow return to be fully operational and so no longer have work for all their employees, are likely to have first considered any steps that they can take to avoid the need to make redundancies. They may conclude that it is necessary to make employees redundant. Alternatively or in addition, employers may decide that they need to change employees’ terms and conditions of employment to accommodate the changes their business is facing. Employers who are considering making changes to the way its workforce operates and to employees’ terms and conditions of employment should assess whether the restructuring or reorganisation that they are proposing amounts to making employees redundant. How should the employer go about making redundancies? An employer who is facing a redundancy situation will need to consider numbers affected to determine whether the collective redundancy consultation requirements apply. It will also need to take steps to ensure that dismissals of individual employees by reason of redundancy are fair. How should the employer go about changing terms and conditions of employment? Employers may wish to change existing employees’ terms and conditions of employment in a number of ways. For example, they may wish to:

Reduce hours and pay possibly on temporary basis or conditional basis (for example, the employer meeting targets on its route out of lockdown) but possibly on a permanent basis.

Introduce more flexibility regarding start and finish time or shift patterns, as recommended by government guidance, in order to avoid congested commuting, provide for a rotating workforce or minimise numbers working together at any one time.

Introduce changes to job roles as the employer adapts and possibly changes its business. Anticipate further lockdown periods by inserting lay off or short-time working clauses into

contracts.

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Whether or not changes can be imposed depends on the contents of the employees’ contracts. An employer’s proposal to change terms and conditions may give rise to a dispute about whether the changes go to the heart of the job being done by the employees and whether it is being made because of a diminished requirement for work of a particular kind. The question of whether a reorganisation is in fact a redundancy exercise is fact sensitive. If a business reorganisation leads to a diminution in the requirement for employees carrying out the relevant work, then that business reorganisation leads to a redundancy situation. Workforce issues an employer may face after lockdown Many of the issues facing employers as they emerge from lockdown will be similar to those they faced when the impact of the COVID-19 pandemic started to impact on peoples’ lives and work. The following considers issues that may continue to be relevant as employers grapple with the new employment landscape. Sickness absence While the rate of transmission of COVID-19 has been reduced by lockdown it is expected that transmission will increase as lockdown measures are eased. Employers may have been affected by high sickness absence levels before the lockdown was announced either because staff were ill or needed to self-isolate in accordance with government guidance. This may have impacted on the employer’s ability to carry out their normal business activities and the likelihood of this continuing should be taken into account when they plan their path out of lockdown. The government has provided guidance for individuals and households to self-isolate in the event of the onset of symptoms of COVID-19 or in the event of a positive test for COVID-19. The statutory sick pay (SSP) legislation has been amended to deem the following to be incapable of work for SSP purposes:

Those isolating because either they or a member of their house have symptoms of COVID-19.

Those who have been notified to shield. Those who are isolating because they have been advised by the NHS Test and Trace

service that they have come into contact with someone who, at the time of the contact, had COVID-19.

Vulnerable employees An employer may have any of the following amongst its employees:

Clinically extremely vulnerable employees who have been advised to stay at home at all times and avoid any face-to-face contact (referred to as shielding).

Clinically vulnerable employees who have been advised to stay at home as much as possible and “take particular care to minimize contact with others outside their household”.

Employees who live with people who are either clinically extremely vulnerable or clinically vulnerable.

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Mental health Employers may find that their employees’ mental health has been affected by any of the following:

Illness. Employees may have had COVID-19 or they know others (family, colleagues and friends) who have been badly affected by it. They may have suffered bereavements. They may be worried about the ongoing risk of contracting COVID-19 and about travel to and being at work.

Finances. Employees may have suffered lost income as a result of being laid-off, agreeing to pay cuts or being furloughed. Their family finances may also have been affected through similar measures or by job loss.

Future employment. Many employees will be worried about losing their job in the short or medium term.

Family. Many employees will be concerned about elderly relatives and children. They may also have ongoing issues about organising work and childcare while their children remain out of school.

Employers should take account of the impact on mental health when communicating with staff and organising a return to work. Those employers who already have provision to support employees’ mental health can direct them to their policies and resources. Acas has published guidance, Coronavirus and mental health at work, to assist employers and employees to manage their mental health during the pandemic, whether they are working from home, anxious about having to leave home to go to work or are furloughed. Employee fitness for work: monitoring and sharing information Employers may have ongoing concerns about whether employees are attending work with symptoms of COVID-19. As part of its approach to maintaining a safe workplace an employer may consider imposing checks on employees and introducing restrictions while they are in the workplace. Where the employer is informed that an employee is off sick with either suspected or confirmed COVID-19 they will be concerned about the extent of information that they ought to share with other staff. Return to work: commuting and attendance at the workplace The government’s clear emphasis when advising employers that they can reopen is that those employees who can work from home should continue to do so. When employees cannot work from home they are advised to walk, cycle and drive to work (rather than use public transport) and employers are asked to support them to do so by providing cycle racks and parking places where possible. The government’s guidance anticipates that some employees may need to use public transport but asks employers to consider staggering start and finish times to avoid large numbers using public transport at peak travel times. Employers also now have guidelines on how to make their workplaces “COVID-19 Secure”. How MLR can help? Morgan LaRoche can assist with any of the above queries. For further information please contact

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Hannah Belton, Director and Head of Employment on 01267 493130 or email hbelton@morganlaroche.com