This post first appeared on Risk Management Magazine. Read the original article.
In August
2020, the U.K. government told employers that they could ask employees working
from home to return to work, subject to compliance with health and safety
obligations. In September, it reversed this position and employees were told to
work from home where possible. Such reversals are likely to continue, and businesses
will have to remain alert to the range of workplace challenges they face. Although the general issues facing
employers are likely to be similar across the working world, this article will
address the rules and guidance applied in England.
Health and Safety
The
nature of a business’ health and safety measures will vary depending on the
context of its operations, but now all businesses will have to enforce social
distancing measures and ensure work environments are “COVID-secure.”
It is an
employer’s duty to do whatever is “reasonably practicable” to protect their
workers’ health and safety of their workers and any third parties affected by
the business, such as members of the public or contractors. The extent of that
duty is also informed by the level of control over workspaces. For example, an
employer may have dual responsibility with an office building’s management with
respect to shared spaces such as elevators or access ways.
Risk Assessments
Employers must conduct a suitable and sufficient risk
assessment of all the work-related activities their employees carry out,
including those working from home, to identify any risks and assess their
severity.
What
qualifies as “suitable and sufficient” may change based on the circumstances,
including place of work and the level of risk posed by COVID-19, which is
anticipated to fluctuate at least in the short- to medium-term. To assist employers, the U.K. government created an
online tool to help carry out a COVID-19 risk assessment and to identify needed
workplace adjustments. The Department of Business has also published 14 guides to making workplaces “COVID-secure,” covering a range
of different English workplaces.
Employers should
document all risk assessments, subsequent mitigation measures and the rationale
underpinning those measures to reassure workers and to demonstrate compliance.
The government expects businesses with over 50 employees to share the results
of their risk assessment with its workforce and publish them online, and all
employers regardless of size are encouraged to do the same.
Consultation
Engagement with
the workforce is key to inspiring trust and generating buy-in with any related
instruction or training. This is particularly important when workers are likely
to be feeling anxious about returning to work and are looking for
reassurance.
At the outset, employers
should review any agreements with any trade union or employee representatives
to see if they must formally consult about return to work proposals. The Advisory,
Conciliation and Arbitration Service (ACAS) has published a Coronavirus
(COVID-19): Advice for Employers and Employees guide, suggesting that it is good practice to solicit
and consider workers’ views on these plans, particularly from fire wardens or
health and safety representatives, to flush out any specific issues. Given the
changing nature of the risks associated with COVID-19, consultation should be
ongoing.
Cleaning and Hygiene Procedures
Following a comprehensive risk
assessment, companies should develop clear, accessible and tailored guidance on
workplace and personal hygiene. Employers are encouraged to provide hand sanitizer,
frequently clean and disinfect surfaces and introduce enhanced cleaning for
busier and communal areas. On July 24, 2020, face coverings became mandatory for
indoor settings, although current guidance does not extend to wearing face
coverings in offices.
Employers should encourage workers to report
any contact with people with symptoms of COVID-19 and support workers who
self-isolate when needed. But employers cannot generally compel workers to
divulge personal information about potential COVID-19 contact or to take
temperature tests, given the data protection and contractual issues associated
with such requirements. However, employers can instruct employees who have COVID-19
symptoms or live with someone who does not to come to work, and discipline employees
if they then do so.
Support Working
from Home
Where employees are required or
permitted to work from home, employers should adequately support them. This may
include providing adequate equipment and taking reasonable steps to safeguard
the physical and mental well-being of workers. Employers should be mindful of
their continuing health
and safety legal obligations, including undertaking a risk assessment, and
their general obligation to provide a safe place of work. They should also, so
far as is reasonably practicable, attempt to ensure workers’ welfare, health
and safety, such as by monitoring work and stress levels.
Discrimination Issues
Employers should look at each home worker’s particular needs
to ensure that they comply with any obligations they have towards that
individual. For example, in the United Kingdom, if a home worker has a
disability, providing equipment (or reimbursing the worker’s equipment
expenses) or allowing them to continue to work from home may all be required as
reasonable adjustments under the Equality Act 2010.
U.K. employers must not make decisions because of an
employee’s protected characteristic, as this would be direct discrimination,
which, except in some cases of age discrimination, can never be objectively justified.
For example, employers freezing hires of job applicants from the United States
or China because of their national origin or prohibiting older employees from
returning to work would be acts of direct discrimination.
Furthermore, employers, as part of their risk assessments,
should consider whether health and safety measures result in treating certain
people less favorably, as, without objective justification, this could be indirect
workplace discrimination. For example, staggering work start times to reduce
COVID-19 transmission risk may disproportionately impact women who have
childcare responsibilities. As there is no cap on compensation for successful
discrimination claims, employers should be particularly cautious with any criteria,
provisions and practices that could be discriminatory and always consider less
discriminatory measures as part of the risk assessment.
As the economic fallout of COVID-19 unfolds, employers may consider
restructuring, which might involve layoffs. One particular area of concern may
be how furloughed staff are incorporated in the layoff process. Selection
criteria must be fair and objective, and dismissing employees because they have
been furloughed at any point between March and October, is unlikely to be fair.
Depending on the reason for being furloughed, it could also be direct or
indirect discrimination.
Suspending penalties for failing to report on gender pay
disparity for 2019 and 2020 for U.K. employers with 250 or more employees and
postponing it to 2021 was a welcome relief for businesses during the height of
the pandemic. However, pay inequities are anticipated to remain under the
spotlight and employers should maintain any momentum achieved in reducing the
pay gap.
Data Security
Working from home presents data security risks. Many
employers want homeworkers to use only the employer’s computer equipment to ensure
compatibility with the employer’s systems and to ensure adequate virus
protection and security measures. Employees will need to keep confidential
information secure when working from home, just as they would when in the
office. Employers should remind workers of these obligations and consider
reviewing and updating their information management and data protection
guidelines.
Managing Transmission Risk
Employers should implement
social distancing measures, including the “one meter plus” rule or using floor
tape to mark out one to two-meter distances, implementing one-way systems
around the workplace, limiting use of shared workspaces and encouraging in-person
meetings by appointment only. Each workplace will
have different challenges, but some of the suggested measures also include
staggering working hours to avoid public transport at peak times (and
encouraging walking or cycling to work), increasing the number of entrances and
exits to avoid congestion, and reducing any unnecessary contact by promoting alternatives
to face to face meetings.
Flexibility
The anticipated
fluctuations in the COVID-19 infection rate and associated health and
commercial risks requires employers to be dynamic in their response planning,
perhaps well into the medium- and long-term. The COVID-19 crisis is likely to
have issues for some workers like childcare and taking extra precautions to
protect at-risk people (called “shielding” in the United Kingdom), which may cause
an increase in formal and informal requests for flexible or part-time working arrangements.
Keeping Records
The COVID-19 Secure Guidelines (Working Safely)
were revised on July 3, 2020 to address situations where a localized outbreak
has been identified. In response to such an outbreak, employers will be asked
to record details of symptomatic workers to assist the NHS Test and Trace Service
in England with identifying contacts. Employers that rely on workers adhering
to certain shifts, such as factories and construction sites, should also
maintain records of staff shift patterns for the same period. Employers are
therefore advised to ensure that all their worker contact details and employment
records are updated.
Concerns and Refusals to Return to Work
Workers may worry about their own elevated risk from COVID-19 if they
have underlying health conditions, are managing childcare responsibilities, or are
shielding. ACAS recommended that employers talk to employees who are concerned
about returning to work and the proposed mitigation measures to try to collaboratively
reduce anxieties early on. Employers can decide whether to maintain certain employees
and workers on furlough, agree to part-time work or allow them to take either
paid or unpaid leave. However, employers are not obliged to do so, and any
response would be a commercial and contractual decision.
Employers should also be prepared for an increase in formal grievances
around returning to workplaces and may face tough decisions about how to deal
with workers who, despite reassurance and additional safety measures, still
refuse to return to work. Ultimately, workers who unreasonably refuse to return
to work may face disciplinary action, up to and including dismissal. Employers
must exercise care in invoking disciplinary procedures in all circumstances, as
COVID-19 will be a contextual factor in determining whether an employer’s
response was reasonable.
Lessons from the U.K. Response
The principal takeaways from the United Kingdom for employers navigating
the current crisis include:
- Dynamic thinking. The public health crisis is changing
all the time, which is a significant challenge to employers. Managing employees
through the crisis and mitigating business risk will require dynamic thinking
and resilience.
- Assessing levels of risk. Undertaking constant reviews of local
guidance is key to tailoring a company’s response, including keeping on top of
any legislative guidance while mitigating the risks of possible fines, employee
sickness or reputational damage.
- Consulting with employees. Communicating changes and adapting
those changes to consider employees’ needs is important to generate buy-in of workplace
measures relating to COVID-19. Safety adherence and employee loyalty will serve
employers well during the medium- to long-term.
- Focused investment. As businesses roll back unnecessary
expenses, this may seem counterintuitive, but businesses must on focus on smart
investments, including data security, employee well-being and to address wider
inequalities in the workplace.