Testing times on the road to the new normal

Can we help you and your business find the new normal? And what will the new normal look like? The answer seems to be, “we won’t know until we get there”. For many businesses the past couple of months have meant closing premises and staff working from home, or on furlough leave. So what’s changed? Well, we know the ‘R’ number is down and we know the “Stay at Home” message has changed to “Stay Alert”. Although, there seems to be some confusion as to quite what that means. So, in the fog of COVID-19 let’s try and shine some light on the issues ahead following the Government’s recent easing of lockdown restrictions, the nudge towards transitioning from home back to work, a shift from full-time furlough to part-time furlough from the beginning of August and an end to the furlough scheme altogether by the end of October.

Over the next few months much will change as businesses transition from lockdown to their own new normal. Here at Burnetts we want to be with you every step of the way to provide guidance, support and advice to identify issues early, manage them appropriately and ultimately avoid litigation. As part of this transition you may have to consider some or all of the following options:

1. Sustained remote working;
2. Safety measures in the workplace for the return to work;
3. Cost saving measures from reorganisations to redundancies.

This blog will focus on point 2: the safe return to work and what you need to make sure your business is “COVID-19 secure”. In tandem with this, Dr Caroline Redhead has written an essential blog about the data protection issues that GDPR poses in the COVID-19 climate where testing, tracking and tracing are set to become part of the new normal.

Let’s start with the mixed, and often highly critical, response to the suggestion of re-opening our schools. The response from Trades Unions and staff serves as a timely reminder that those most affected have one very important question: Will a return to work be safe for me, my family and my colleagues? People are afraid, and fear prompts two reactions: fight or flight. This poses potential for refusals to come to work and a combative approach to employers insisting on staff doing so. The stakes are high for workplace acrimony and disputes. If handled badly, this tends to lead in one direction and one direction only: grievances, disciplinary action, litigation and ultimately the employment tribunal. Perhaps the worst fear of all is fear of the unknown. Let’s face this fear head on and see what we can do to alleviate it, if not dispel it completely.

As an employer looking to transition your staff back to work, you have a duty to take reasonable steps to protect their health and safety. More than this, employees are also protected from dismissal or being treated detrimentally if they refuse to return to work, insist on leaving work or take appropriate steps to protect themselves or others, where they reasonably believe there are circumstances of serious and imminent danger. For as long as the virus remains prevalent, and no vaccine has been found, each and every workplace is potentially an environment in which there is a serious danger for employees, especially those who are older or vulnerable. Whether there actually is serious danger and that danger is imminent is ultimately down to the effectiveness of the safety measures put in place in each particular case. Whether an employee holds a reasonable belief that there are circumstances of serious and imminent danger will depend on the following:

1. The safety measures you have in place;
2. The perception of safety held by staff;
3. Clear communication and consultation with staff.

Whilst following Government guidance about safety measures is vital, understanding your staff’s concerns is key to thinking outside the box and must be “Step One” on the long road to recovery from the effects of this pandemic on your business and on all our lives. For example, your staff may be satisfied with the safety measures in place at work and feel genuinely safe but have grave concerns about riding a packed train/tube to get there in the first place.

At Burnetts, we have reviewed the Government Guidance, considered the many questions you will face over the coming months and drilled down to find the best answers for you in these unprecedented times. We are ready to support all our clients through the return to work process with the sole aim of getting you, your business and your staff safely to the other side. We won’t know what the “new normal” will look like until we get there but we are here to help to steer you every step of the way. This is how we see it:

Step One: ‘Take the temperature’ of those returning to work – understand the fears, hopes and perceived risks of staff returning to your workplace;

Step Two: ‘Take the medicine’ – assess the risks and put in place policies and practical measures to be COVID-19 secure in accordance with Government guidance and the science;

Step Three: ‘Create Confidence’ – communicate clearly and consult with staff transparently: the ‘what, when, how and why’ strategy for keeping them safe.

Return to Work Questionnaire

Taking the Governments proposals to re-open schools and the backlash from Unions, on behalf of staff, as a litmus test for returning to work, is it not surprising that the media is awash with articles highlighting the anxiety of staff returning to work. Now is the time to take step one and get to grips with the fears, hopes and perceived risks of your staff where you want them to return to your workplace. To help you with this critical first step, we have prepared a straight-forward Questionnaire for you to let your staff have their say. The Questionnaire aims to:

1. Explain why this is being provided to staff;
2. Provide definitions and links to guidance in order to support staff completing the questionnaire;
3. Ask specific questions regarding their individual circumstances to ascertain whether they are able to return to the workplace. If not, the questionnaire asks for the specific reason as to why this is not possible;
4. Provide an overview of pay consequences covering a number of different circumstances.

As you will appreciate, there are many and varied reasons as to why a member of staff may not be able to return to the workplace i.e. they are shielding, they are concerned about their health more generally, they have caring commitments etc.

As a result of the number of different scenarios, together with the unprecedented circumstance of COVID-19, it is always recommended that specific legal advice is obtained regarding how to manage any member of staff who is not able to return to work. It is important to highlight that Government Guidance remains, for the time being, that staff should be supported to work from home where a return is not possible. Conversely, staff who cannot work from home may now return to work where it is safe to do so. Clearly, this is a balancing exercise between supporting the member of staff and ensuring there are sufficient resources in your workplace to enable your business to not only function but begin the journey back to flourishing.

What do I do with the completed Questionnaires?

The fundamental purpose of the Questionnaire is to ascertain the capacity, both mental and physical, of the workforce in order to return to work safely and to identify any member of staff who will require additional support during this time.

The information available to you from the Questionnaires will enable you to create a document categorising employees in line with their ability to return to the workplace. This will then inform and feed into the necessary workplace risk assessments which should be undertaken to identify what measures you are required/able to implement in order to reduce the risks identified and, importantly, whether you will have enough staff available to run your business and reopen your workplace safely.

Risk Assessments

As mentioned above, risk assessments will form a large part of the planning stage for reopening your business. Risk assessments are required for the workplace and some individual employees (i.e. those classed as vulnerable) together with the potential for privacy impact assessments regarding data protection issues around testing, tracking and tracing. Please refer to Dr Caroline Redhead’s blog for more information on this area.

To support you with this going forward, we at Burnetts are in consultation with a health and safety expert regarding the creation of model risk assessments for the various types of workplace. We will be rolling these out shortly, having drawn on relevant expertise across the board; we will be tailoring these to suit your individual business needs. We will also provide comprehensive advice covering employment and HR aspects, as and when you need us, together with the model risk assessment documents for your workforce.

We will keep you updated with this, and with the new Government guidance, in all the relevant areas as and when it becomes available.

Next Steps

More details about how to obtain the Questionnaire are available here

A member of our Employment and HR team will be more than happy to discuss the questionnaire, and any other issues you may have about transitioning your staff back into the workplace, where this would assist you.

Clear communication is key to understanding any problems that may lie ahead and will help you to be ahead of the game in finding solutions to nip them in the bud or resolve them appropriately. It is never too early to start discussions with your staff following the Government’s announcement regarding returning to work. We hope our questionnaire will help you to ask the right questions as you embark on step one on the road to your business’ new normal.

Guidance

As you will know, there is a considerable amount of Government guidance available, with more promised in the near future. For your ease of reference the links to some of the key guidance relevant to you is set out below. These are:

Guidance – Our plan to rebuild: The UK Government’s COVID-19 recovery strategy

Guidance – Closing certain businesses and venues in England

Guidance – 5 Steps to working safely during coronavirus (COVID-19)

Guidance: Coronavirus (COVID-19): Safer transport guidance for operators

Guidance – Working safely during coronavirus (COVID-19) – Construction and other outdoor work

Guidance – Working safely during coronavirus (COVID-19) – Factories, plants and warehouses

Guidance – Working safely during coronavirus (COVID-19) – Lab and research facilities

Guidance – Working safely during coronavirus (COVID-19) – Offices and contact centres

Guidance – Working safely during coronavirus (COVID 19) – Other people’s homes

Guidance – Working safely during coronavirus (COVID-19) – Restaurants offering takeaway or delivery

Guidance – Working safely during coronavirus (COVID-19) – Shops and branches

Guidance – Working safely during coronavirus (COVID-19) – Vehicles

Burnetts Employment and HR team is here to help

​If you would like to speak to someone within our Employment and HR team please contact our offices on 01228 552222 or email hello@burnetts.co.uk. Please note that both telephone and video appointments can be arranged during this period of self-isolation.