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Every exit is an entrance – government releases guidance on reopening and re-occupation

12 May 2020

As part of its roadmap for a gradual exit from lockdown, the government has released guidance for employers on how to maintain workplace safety as the Covid-19 pandemic continues.

Guidance for workplace safety during the Covid-19 pandemic

The government has released detailed guidance for working safely during Coronavirus (Covid 19). This includes specific guidance for the following different types of environment:

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

The guidance is intended to explain what employers need to do to ensure physical distancing and safe working practices as they continue to operate or start preparing to reopen and re-occupy their workplaces.

Key points for HR leaders and in-house employment lawyers from the guidance on maintaining a safe workplace

  • All employers (apparently even those which do not plan to physically reopen – as the government says that it applies to all “businesses currently open”) need to carry out risk assessments. Those with five or more employees need to prepare written risk assessments. All employers should consider publishing their Covid-19 risk assessments on their websites and employers with over 50 employees are expected to do so.
  • Workplaces are going to look very different, with restricted use of corridors, lifts, and staircases, reconfigured seating and tables, stringent controls on entry and exit, staggered hours and breaks and floor tape markings.
  • Retailers need to restrict customers in shops and consider appointing social distancing “champions” to demonstrate social distancing guidelines to customers.
  • Offices can reopen for business-critical staff and employees in critical roles who are unable to work remotely due to home circumstances, but everyone else should continue to work from home if at all possible. The guidance can be used, however, to start to prepare for reopening.
  • Employers are told that they must consult with a health and safety representative chosen by a recognised union or, if there isn’t one, a representative chosen by workers about the health and safety implications of their return to work plans.
  • Employers should not encourage the precautionary use of Personal Protective Equipment (PPE), but should support employees to wear face coverings (which are not PPE) if they choose to wear them.
  • The guidance to employers says nothing about medical testing of employees on return to work.

What do HR leaders and in-house employment lawyers need to do next?

  • Businesses will welcome practical guidance, but at the same time will be concerned about how to put it into practice and who takes responsibility for what needs to happen in each workplace. There is clearly a role for HR leaders and in-house employment lawyers in ensuring that the guidance is implemented in a way which mitigates risk as well as helping the business to operate safely and efficiently with employees who feel supported and re-assured.
  • The guidance is not legally binding. Although this has caused some dissatisfaction, for example from the Trades Union Congress, it does not mean that you can choose not to follow it. A failure to do so could expose the business to grievances and various employment law risks, including negligence claims. Equally, however, because the guidance does not represent the law, there are no guarantees that following it won’t result in claims. Employers have separate health and safety obligations which are not displaced by this guidance and could potentially demand more of you.
  • A key question for HR leaders and in-house employment lawyers is how to select employees for a return to work, when many businesses will not be able to open with all staff (a topic which we explored in an earlier insight article). Many employees badly want to come back to work, but others don’t (or can’t) and significant legal questions remain over their employment law rights.
  • One problematic issue is the discriminatory impact of return to work plans. Employers need to be mindful of the potential impact on protected groups and their exposure to grievances or claims if that impact were to be challenged. However, they cannot deliberately prioritise certain groups for safer work without facing claims from other groups, leading to potentially insoluble problems.
  • The guidance refers to the need for employee consultation. This is legally required but can also be helpful as a way of ensuring that issues are flushed out and practical problems further down the line are avoided. However, it will inevitably impact on how quickly employers are able to reopen.
  • The government hopes that this latest guidance might significantly increase workplace attendance, reboot the economy and avoid significant job losses. This is probably unlikely.
  • Many workplaces (e.g. call centres, warehouses, factories, construction sites and supermarkets) have already developed their own health and safety approach and are operating at maximum (and limited) capacity within social distancing guidelines. Businesses which have continued to operate will need to review their plans in light of this new guidance.
  • Those workplaces which can operate (even in a limited way) remotely are unlikely to significantly increase their workplace attendance by relying on this guidance, for several reasons:
    • It is guidance only and (as explained above) does not displace existing health and safety obligations. It is hard for employers to get reliable health and safety advice on how to put the guidance into practice.
    • There are no easy answers for employees who need to use public transport, or who have no childcare.
    • It discourages hot-desking and shared use of equipment, which applies to many modern offices.
    • Much of the workforce has had nearly two months of working from home, and the impetus has been to get more employees working from home effectively rather than get them back to work.
    • There is an interdependence of sectors. For example, if city centre local shops cater primarily to office workers, it still won’t make sense to reopen those premises before a critical mass of office workers return to their offices and become confident to use those outlets.
  • If an office-based business is operating effectively with everyone working from home, there is likely to be little financial benefit in reopening in the short term under these conditions and with the associated risks. If that is the case, it’s important not to overlook the health and wellbeing of homeworking employees and review the approach to homeworker risk assessments and support packages.
  • Nothing in the latest guidance changes the reality that - even with the anticipated extension and gradual phasing-out of the furlough scheme - it is unlikely that the economy will return to anything close enough to business as usual to avoid significant job losses.
  • Although there are now areas of difference across the devolved nations, for now the position on leaving home for work is consistent. The Westminster government’s position is that employees should work from home and only travel to work if they cannot work from home. This reflects the position across the UK and it means that employees working in England but living in either Scotland or Wales can already travel for work across the border if they cannot work from home. Although the guidance has clearly been issued after consultation with the devolved nations, differences may emerge in the future and employers are advised to consider the guidance alongside local public health and safety requirements and legislation in Northern Ireland, Scotland and Wales.

We’ve put together practical guidance two new sets of FAQs on managing a safe return to work and staffing decisions when reopening workplaces. These cover your health and safety responsibilities, risks of claims, issues about contact tracing and medical testing, managing employees who do not want to come back and more. There’s also a useful flowchart.

 

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