Employment Law Update – Returning to Work After Lockdown

On Sunday 10 May 2020 the UK Government announced a “road map” to recovery in relation to the ongoing Coronavirus pandemic that hit the country in March this year.

As the lockdown restrictions are eased businesses will face different challenges ranging from getting staff back to work and decisions on when to relax furlough leave and whether there is a need around cutting costs and making redundancies.

James Leo, Head of Employment Law at The Wilkes Partnership considers the guidance on offer to assist employers, businesses and their staff in returning to work after lockdown.

Returning to the workplace

While it is advised employees who can work from home continue to do so, the government’s plans for returning to the workplace continues to emerge. This includes specific guidance for eight different sectors including construction, other outdoor workers, warehouses, labs and research facilities, contact centres and offices. Other guidance considers working in other people’s homes such as cleaners, restaurants offering takeaway or delivery, shops and similar environments and people who work in or from vehicles.

It is important for businesses to ensure they can meet a certain criteria before allowing their employees back to the workplace. This will include questions such as:

Is it essential?

As stressed by the government if people can continue to work from home they must continue to do so for the foreseeable future.

Is it safe?

Employers have a duty of care to manage and identify risks. This is to ensure it is safe to return to work and that there are sufficient safety measures in place such as protective equipment (e.g. gloves, hand sanitiser). In line with government guidance, social distancing measures are still in place and employers need to determine whether the two meter rule can be maintained. Employers are urged to take their time with gradual returns to work to test health and safety measures in practice and ensure they can work with larger numbers.

Is it mutually agreed with employees?

There should be a clear dialogue between employers and their staff. This can address any concerns employees may have such as travelling to and from work. Flexibility is required on both sides to accommodate working times and managing risks. Employers should be aware that some employees may not feel comfortable returning to work at this early stage. It may be that this will gain a great deal of friction in the coming weeks and months.  If not handled carefully, the issue may lead to claims for disability discrimination under the Equality Act 2010 (“EA 2010”), constructive dismissal, unfair dismissal for health and safety issues under the Employment Rights Act s100 (“ERA 1996”) and detriments suffered as a result of not attending work due to health and safety concerns under s44 ERA 1996.

In particular Under s100(1)(d) and (e)  ERA 1996 an employee will be deemed as unfairly dismissed if the principal reason for dismissal is that in “circumstances of danger which the employee reasonably believed to be serious and imminent”.  Employers should listen to their employees’ concerns about returning to work, consider whether the employee in question suffers from any underlying medical condition which makes them vulnerable to the virus and also to consider if they suffer from a disability requiring adjustments to be made.

Short-term working/ Redundancies

The government furlough scheme has been extended to October 2020. When planning a return to the workplace, a business may decide not all of the existing workforce will be needed.

This may create a situation whereby it starts to consider:-

• Reduced working hours
• Continuing furlough leave for employees
• Furloughing other members of staff
• Recruitment freezing
• Redundancy

Reduced hours 

Employers may want to consider reducing the working hours for staff if there is a reduced level of work upon returning. This is usually considered  a temporary measure and should be agreed in writing.

Further furlough

Employers should check their furlough letter to individual staff in order to see if it included a specific date for return and whether a specific percentage salary payment was included. If employers wish to continue to keep employees furloughed it may be worth updating their letters in order to make further updated agreements with staff for the continuance of furlough leave and payment rates.

Redundancy

Employers may not be able to continue trading or there may only be enough business for significantly fewer staff. This may create a need to consider redundancy planning. Employers need to ensure that they follow correct procedures and apply them fairly. Employees have rights in a redundancy situation.

James Leo comments: “Given that the nature and timing of any further relaxation of restrictions is uncertain, it is sensible for a business to consider all options and have the capability to move quickly from one scenario to another”.

For any further guidance on this issue or any other employment related matter, please contact James Leo or a member of the Employment Team at The Wilkes Partnership Solicitors. Alternatively email us at [email protected].