As many businesses prepare to return to the workplace this summer, we have put together a list of the most frequently asked questions from our clients when it comes to employment law.
What is the latest government guidance on the re-opening of workplaces?
Following the government roadmap (announced on 22 February) the current guidance is to work from home where possible. Restrictions are provisionally lifting on 21st June when all workplaces can re-open, but this will not be confirmed until 14th June. See the latest guidance.
We have vulnerable employees who do not feel safe returning to the workplace, what should we do?
The guidance changed in April with regards to extremely clinically vulnerable people, and they no longer have to shield. The most up to date guidance says that any vulnerable employees who can’t work from home should go to work.
The onus is therefore on the employer to discuss the risks with the employee and identify personal risks. Using a risk assessment, a plan should be agreed on how that employee will be protected in the workplace. This could be through social distancing measures or agreeing a different working pattern so that they are not coming into contact with a large number of people whilst commuting or in the workplace itself.
Employers should also remember than those who are regarded as clinically vulnerable or extremely clinically vulnerable are likely to have a disability for the purposes of the Equality Act 2010 and therefore will be under an enhanced duty to make reasonable adjustments to the employee’s role and/or working pattern to facilitate a safe return to the workplace.
There is no single approach for employers, and each case will need to be assessed individually. However, if an employee refuses to return to work and the role is unable to be carried at home then you can consider furlough until the scheme ends in September. Alternatively, we strongly recommend that you take professional advice because a requirement for all employees to return to work, even if applied equally to the whole workforce, could give rise to claims of indirect discrimination from employees who have a disability for the purposes of the Equality Act 2010.
Read the HSE guidance on making the workplace secure.
What are my obligations as an employer for my staff?
All employers have a duty of care towards their employees; this includes to employees’ physical and emotional well-being. In short, this means that an employers have a duty to implement Covid Secure Measures in the workplace and support government guidance to continue to work from home where possible. It would also be sensible for employers to encourage employee participation in lateral flow testing in line with the government strategy to reduce the transmission of Covid.
When does the furlough scheme end and what are my options beyond that?
The scheme will officially end in September, with government contributions decreasing from July onwards. Employers need to start planning now for how they will manage staff returning from furlough or where they are unable to continue with employment.
There are essentially three options for an employer once the furlough scheme is withdrawn; placing staff on short-time working or temporarily laying the off, considering making redundancies or consulting with staff with a view to mutually agreeing revising working hours and/or pay arrangements to make their longer term employment sustainable. Read our guide to redundancy.
My employee is pregnant and doesn’t feel safe returning to the office, what should I do?
The government has issued specific advice for pregnant employees in its coronavirus guidance. Pregnant employees may have a greater claim to continue working from home. The current guidance states:
- For employees less than 28 weeks pregnant (with no underlying health conditions) – employers must conduct a risk assessment. The employee should only continue working if the outcome of the risk assessment advises that it’s safe to do so. This puts the onus on the employer to manage and remove any risks. If this can’t be done, then alternative work or working arrangements (including working from home) should be offered.
- For employees who are 28 weeks pregnant and beyond, or with an underlying health condition that puts them at greater risk of severe illness from coronavirus, the employer must ensure that they adhere to any active national guidance on social distancing and / or the advice for pregnant women considered to be clinically vulnerable. This could include working flexibly from home in a different capacity. All employers should consider both how to redeploy these staff and how to maximise the potential for homeworking, wherever possible.
How can we support employees with anxiety about returning to work?
It is a good idea to conduct a staff survey to understand how your staff feel about returning to the workplace. Use our free template here. This will help you to understand what the anxiety relates to and how you can address this as an employer (for example adapting the workplace or changing working hours and patterns).
The CIPD has some useful guidance on supporting mental health in the workplace for employers.
Do we need to keep a track of who has been vaccinated? How do we do that and does that have GDPR implications?
It’s a good idea to have a vaccination policy within your HR policies and procedures to avoid any ambiguity. This will set out your stance on the vaccination programme. As it now looks unlikely that there will be a ‘vaccine passport’ the vaccination cards serve as proof of inoculation. It is reasonable for employers to ask employees if they have been vaccinated to create a secure working environment for colleagues and peers. However, this information falls under ‘special category personal health data’ and will therefore need to be stored securely to comply with data protection rules.
Read our vaccination guide for employers.
My employee is planning on travelling to a country on holiday this summer which is not on the green list, what is my position?
Employers should have a quarantine policy which covers matters such as the rules of quarantine and options for employees in terms of working from home, taking additional holiday and unpaid leave during the quarantine period. Employees should be made away that they will not be entitled to receive statutory sick pay during quarantine unless they actually became unwell. For some employees the decision to go on holiday to a country which is not on the green list may amount to a potential disciplinary offence (for example, however, this will always be fact specific and specific advice must be taken on the specific set of facts. An employer could certainly discourage employees from taking holidays in country that are not on the green list. An employer may need to adopt a more flexible approach.
If you need help with any of the above please get in touch with our team who can help.