Where are we now?

• The Government is easing lockdown. Provided the 5 tests set out by the Government are met see here and businesses comply with COVID-19 secure guidelines: outdoor markets and car showrooms have opened and all other non-essential retail can open from 15th June.
• The Government has published eight separate guides on working safely during coronavirus. These cover construction and other outdoor work; factories, plants and warehouses; homes; labs and research facilities; offices and contact centres; restaurants offering takeaway or delivery; shops and branches; and vehicles.
• The Government has also published guidance on travelling to work, which advises people to consider all other forms of transport before using public transport. It also advises travellers to travel outside of peak times if they can and encourages employers to agree alternative or flexible working hours to assist travelling at off-peak times see here.
• The broad advice remains that anyone who can work from home should continue to do so and offices are likely to remain closed in the short term. Employers should not reopen until they can do so safely.
• Employers need to do a COVID-19 risk assessment as soon as possible. All employers should consider publishing their risk assessment on their website and the Government guidance expects all employers with over 50 employees to do so.

If we open our workplace, what steps must we take to make it COVID-19 secure?

All employers have a duty to take all reasonably practicable steps to provide a safe place of work. Taking the following steps is advisable:

• Carry out appropriate risk assessments;
• Implement measures to minimise those risks identified. You must take all reasonably practicable steps; you are not expected to eliminate the risks altogether.

To clarify what you need to do, you should refer to the relevant sector-specific guide contained in the Government’s guidance on working safely during coronavirus mentioned above.

To assist you with this process, Burnetts have prepared a guide of the factors to be taken into account when performing a COVID-19 risk assessment.

Must we publish our risk assessment?

The law already says that significant findings from risk assessments must be written down if you have more than five staff. The guidance now also recommends that you publish your COVID-19 risk assessment on your website, and that all employers with over 50 workers will be expected to do so.

Do we need to do a risk assessment even if we are not reopening because everyone is working from home?

Yes, but it should concentrate on the homeworking risks. You can update it (after consultation) in due course to reflect your plans for re-opening.

How do we go about doing a satisfactory risk assessment?

The Health and Safety Executive (HSE) provides general guidance on how to do a risk assessment, which needs to be adapted for COVID-19 using the appropriate workplace guidance for your particular environment. The HSE recommends taking the following five steps:

• Identify the hazards in your workplace.
• Decide who might be harmed by those hazards and how.
• Evaluate the risks and decide on measures you can implement to minimise the risks.
• Record your findings and implement them.
• Review your risk assessment and update it as necessary.

What responsibilities do our employees have for their safety?

Employees have independent statutory duties to take reasonable care for their own health and safety, and that of other persons, and to co-operate with you to ensure that your rules are complied with. It is therefore important for you to educate and train your staff on the practices and policies you have decided to adopt.

Should we be consulting employees or their representatives about the health and safety aspects of reopening plans?

Yes. If you recognise a trade union, you should consult with your union safety representatives. Where workers are not already represented by union safety representatives, you have a statutory requirement to consult either employees or their elected representatives about health and safety - in particular, the introduction of new measures that could substantially affect their health and safety.

The first step is to check your health and safety policy to see if it says how you will engage with employees. Depending on any existing commitments in your policy, you may want to organise a body of employee representatives for this. There is no set process for conducting elections and you might simply start by asking for volunteers.

Consulting representatives can be easier and more effective than trying to consult employees directly, especially when consultation needs to happen remotely. If you are starting to prepare for reopening but not expecting an imminent return, now would be a good time to put in place a representative body. If you do not want to set up a representative body, or you are concerned about the time it might take to do so, you can consult employees directly. To do this effectively without being able to hold physical meetings, you would need to consider open meetings using apps such as Zoom, or other online employee survey tools.

You may wish to consider delaying implementing any return to work plan until you have consulted employees. Not only does this mitigate your legal risk, but it is also likely to flush out issues and prevent problems when it comes to putting your plans into practice.

Until 1st July (when flexible furlough is allowed) employees who are on furlough are not allowed to do any “work” for their employer. HMRC furlough guidance states that the duties and activities of employee representatives as will not be regarded as “work”, as long as the representatives do not provide services to or generate revenue for the employer.

What if employees want to come back but we are not ready?

Some workplaces are legally required to remain closed. Employees in those businesses cannot return.

Other businesses can potentially open. However:

• If an employee can work from home, they should continue to do so even if they would prefer to come back to work.
• If the work cannot be done from home and you are not legally required to close your business, you can choose to reopen your workplace but you should not do so until you are satisfied that it is safe.

How do we choose which employees should come back first?

If an employee can work from home, they should continue to do so.

For work that cannot be done from home, you should first seek the employees’ views by providing a RTW Questionnaire to understand who would be willing to come back.

If too many employees volunteer, you may need to implement a rota system or make selections on an objective basis.

If not enough employees volunteer, you may need to have a mandatory system. Employees with caring responsibilities may be unable to return at all, particularly single parents and those whose partners are key workers so cannot share caring responsibilities. Vulnerable employees, employees who live with vulnerable people, pregnant employees and employees with anxiety or similar health conditions may not want to come back. It will generally be safest if you can avoid calling on these categories of employee and leave them on furlough or other types of leave if possible.

What if there’s a disagreement over whether the employee’s job can be done from home?

If the work can’t be done effectively at home but the employee disagrees, you should attempt to resolve the dispute but, if that proves impossible, you may have to issue an instruction that the employee comes back to work. Ultimately, if the employee refuses to do so, you may need to consider disciplinary action, although you may wish to consider allowing a period of unpaid leave. If the employee is concerned about work dangers, the position may be different – see below.

What if the employee says that they cannot come to work because they believe there is serious and imminent danger?

Employees have the right not to be subjected to any detriment or dismissed for refusing to come to work in circumstances where the employee has a reasonable belief that they are in “serious and imminent danger”. For the purposes of this statutory protection, the issue is whether the employee reasonably and genuinely believes they are in serious and imminent danger. It’s not relevant that you disagree about the danger – the question is whether the employee’s perspective is reasonable. This can include danger caused by the behaviour of work colleagues in relation to social distancing.

In situations where this protection applies, the employee would be entitled to stay at home on full pay for as long as they are refusing to return to the workplace because of serious and imminent danger. At least, that is the implication, since "detriment" would ordinarily cover loss of pay.

How this legal protection will apply to COVID-19 is currently unknown as there have yet to be any test cases. Employers can reduce the chances of this argument succeeding by doing all that it reasonably can to protect health and safety of its staff, including following Government guidance.

If an employee refuses to return to work for this reason, you need to investigate their concerns and provide a reasoned and documented response. Remember your duty of care towards employees who are worried and ensure you are taking practical measures to support their mental health and wellbeing. Many employees will be anxious, and you should anticipate this.

What if an employee is not ill, vulnerable, in any special category or citing any particularly serious dangers but is unwilling to come back?

You could potentially take disciplinary action against such employees where you are confident that you are taking all reasonably practicable steps to control the risks. We would caution against doing this in most cases. Any dismissal could be regarded by an ET as unfair and disproportionate in the current situation and any disciplinary action could result in constructive unfair dismissal claims.

Where possible, keep the employee on furlough or put them onto unpaid leave - employees who are not able, ready and willing to work are not entitled to pay – while continuing to take practical measures to support their mental health and wellbeing.

In time, the furlough scheme will be wound down and employees remaining on unpaid leave may become unsustainable.

In those circumstances it may be appropriate to consider termination of employment. As the situation develops and more employees return to work, it may also become safer for you to take disciplinary action.

What if the employee is classed as vulnerable and they are unhappy about coming back?

The Government recognises two groups of vulnerable people – those who are clinically extremely vulnerable (who have been advised to shield themselves) and those who are clinically vulnerable.

The Government’s guidance says that clinically extremely vulnerable people are “strongly advised not to work outside the home”, so they should not return to work. The latest guidance on safe travel advises clinically extremely vulnerable people not to travel. If they cannot work from home, they are entitled to SSP.

Clinically vulnerable people who cannot work from home can return to work but must take extra care with social distancing. Remaining on furlough or taking unpaid leave is currently a safer approach for vulnerable employees if they are unhappy about returning to work, given the legal risks many vulnerable employees will also qualify as disabled for the purposes of the Equality Act. This means they have the right to reasonable adjustments, which could potentially include staying at home (although this is unlikely to be on full pay).

It is also unlawful to operate provisions, criteria or practices which would put disabled employees at a disadvantage compared with non-disabled employees, unless this is justified. A policy of requiring vulnerable people to return to work could potentially be indirectly discriminatory and require justification. It may be hard to justify requiring an unwilling vulnerable employee to come back to work if, for example, other employees could cover their role or you could recruit temporary cover.

What if the employee is classed as clinically vulnerable and they want to come back but we are too wary of the risks and we’d like them to remain at home?

If you have a clinically vulnerable employee who wants to return to work but you would prefer them to remain at home, the legal position is different.

If they have agreed to be on furlough, then you can require them to keep to this agreement. Once any agreed furlough period comes to an end, unless you agree something else, an employee who is ready, willing and able to work would be entitled to full pay if you required them to stay at home.

There is a potential exception if you have an agreed lay-off provision in the employment contract which entitles you to lay the employee off without pay (these are rare), or if the employee is a casual worker who is not entitled to be provided with any work.

What if the employee lives with a vulnerable person?

You do not owe a duty of care to people who live with your employees. However, the Government guidance for who should be going to work also suggests employers pay “particular attention” to people who live with clinically extremely vulnerable individuals.

It may therefore be sensible to let some employees remain on furlough or unpaid leave if they are very worried about the risks to somebody they live with.

What if the employee is pregnant?

Pregnant employees are treated differently than other vulnerable people and may have a greater claim to being allowed to remain at home on full pay, if they are not already on furlough.

Pregnant women with heart disease have been included in the list of clinically extremely vulnerable individuals who must not work. All other pregnant women have been included in the list of clinically vulnerable people as a precaution and have been advised to be particularly careful about safe distancing, because the risks to them remain unclear.

As the employer, you have to assess the specific risks to pregnant employees and, where these are identified, you must do all you can to prevent or remove them. It may be possible to do this by taking extra precautions to enforce safe distancing in the workplace. The current guidance does not say that vulnerable employees can never be asked to work, and this includes pregnant employees. It is a matter for your own risk assessment and whether you are confident that you can provide a safe workplace.

If you cannot ensure safe working conditions, you need to temporarily alter the pregnant employees’ working conditions or hours, provide suitable alternative work on the same terms and conditions or suspend the employee on full pay. This right to be suspended on full pay does not apply to other vulnerable employees, and in practice means that pregnant employees are treated differently than other vulnerable people.

What if the employee has anxiety or a similar condition which impacts on their ability to return to work?

Employees in this category could be kept on furlough. If you require their return, they may not be fit and able to work and may be signed off sick as a result, which would entitle them to sick pay under your usual policies.

Even if they are not signed off sick, employees with some long-term mental health conditions may be disabled for the purposes of the Equality Act and it may be a reasonable adjustment to allow them to stay at home. They will not, however, be entitled to pay unless they are on sick leave.

What if employees are unable to return to work because they have no childcare?

The three main options where employees have no childcare available are:

• Furlough;
• Employees with over one year’s continuous service may apply for a period of unpaid parental leave if they are caring for a child under 18 (a maximum of four weeks’ parental leave per child);
• Employees have a right to a reasonable amount of unpaid time off where it is necessary to deal with unexpected events involving their dependants. This would include a situation where the school or nursery has not reopened for their children, their childminder is not working or their usual reliance on grandparent care has been disrupted. Under normal circumstances, the employee would be expected to put in place alternative care arrangements, rather than having a right to an extended period of time off to look after their children themselves. However, in the current circumstances, tribunals are likely to be sympathetic to employees who are genuinely struggling to find suitable childcare in the short term.

If employees are unwilling to come back to work, can they stay on furlough?

Probably yes, but it will depend on the circumstances of each employee. Keeping carers or clinically vulnerable employees on furlough for the time being may be acceptable, even if you might otherwise have asked them to return.

What processes do we need for employees to flag concerns about potentially unsafe practices at work?

You might consider setting up a special process for employees to flag concerns that your health and safety measures are not working or are not being observed.

An alternative is to use existing whistleblowing hotlines. A complaint that “the health and safety of any individual has been, is being or is likely to be endangered” counts as a protected disclosure for the purposes of whistleblowing legislation and you may already encourage concerns on this issue to be raised through whistleblowing policies.

Whichever process you use, make sure that:

• Someone has responsibility for investigating the concerns.
• Managers are clear about the process for dealing with concerns and can signpost it to employees.
• You take any steps required to address legitimate concerns, e.g. by adjusting your health and safety approach or disciplining individuals who have behaved irresponsibly.
• Nobody takes retaliatory action against any employee who complains (since they are likely to be protected as a whistle-blower, even if they did not use the whistleblowing policy).
• You comply with applicable data and privacy requirements.

What Personal Protective Equipment (PPE) should we provide? Must we supply facemasks?

You must first assess the risk and see if it can be eliminated entirely. If that is not reasonably practicable, you will need to look at a range of methods which can minimise the risk of harm. However, the Government’s guidance emphasises that:

• COVID-19 risks need to be managed through social distancing, hygiene, screens and fixed team or partnering, not through the use of PPE.
• Workplaces should not encourage the precautionary use of extra PPE.
• In the event that your risk assessment did show that PPE was required (unlikely for any office), you would need to provide it.
• There is a distinction between face coverings and PPE. There are some circumstances when the guidance suggests that wearing a face covering may be marginally beneficial as a precautionary measure. Face coverings can be made at home. Employers should support employees in using a face covering safely if they choose to wear one but should not rely on them as a risk management strategy.
• People should wear a face covering if they need to use public transport.

Do employees have a right to be notified if a colleague has suspected or diagnosed COVID-19?

No, there is no specific right. You owe the colleague a duty of confidentiality and data privacy obligations which would ordinarily mean that you should not disclose details about their health. On the other hand, you have a duty of care and statutory health and safety responsibilities towards your other employees. Try to balance these obligations by warning individuals who have been in contact with any member of staff suspected or confirmed with COVID-19 without revealing the name of the colleague and, if that is not realistic, do not reveal any information any more widely than necessary.

How do we avoid discrimination in our return to work plans?

First, check that your return to work plans don’t disadvantage certain protected groups such as disabled people and women.

Second, many individuals who are classified as vulnerable or extremely vulnerable will also qualify as disabled within the meaning of the Equality Act, and your duty to make reasonable adjustments may require you to transfer them into safer alternative work or even allow unpaid leave.

Third, employers should try to avoid making decisions purely on the basis of protected characteristics, except in relation to pregnancy and the over-70’s (who are included in the list of vulnerable groups).

This blog does not constitute legal advice and liability for reliance on the views and opinions expressed is excluded. Specific advice on your own particular circumstances should always be sought.

If you require specific legal advice please contact David Gibson at Burnetts on 01228 552222 or dgi@burnetts.co.uk and she will put you in touch with the Employment team who will be happy to assist you.