Paul Clark, partner and head of employment with North-East law firm Jacksons, with useful return-to-work advice for employers.

A lot has already been said and written about businesses reopening and staff returning to the workplace. Unfortunately, the difficulty for employers is that what amounts to ‘reasonable measures’ is very much fact-specific.

This not only applies between organisations but within them as measures which might be reasonable to protect the health, safety and welfare of healthy employees may not be sufficient to similarly protect employees who are clinically vulnerable, or where external factors affect employees’ perception of risk, such as the need to travel on public transport.

Employers, then, will need to be both flexible and creative in their planning – hopefully the following points will help:

Start with what you know

All employers are obliged to conduct and keep under review a health and safety risk assessment which should be recorded in writing where they have five or more employees – the government expects employers to publish these online where employees number over 50.

Your existing risk assessment will serve as a template and you should initially adapt this based on the ‘safer working guidance’ or Covid-19 standard for your sector. Following the government guidance alone is not enough, however, as it is essential that employers communicate their plans and, in consultation with staff, including via representatives where applicable, implement and evaluate all health and safety measures resulting from their risk assessment.

In many ways the government guidance has shifted from instruction to expectation meaning business now need to do more than simply observe what they are being told in order to stay safe and comply with their legal duties.

Continue homeworking where possible

The prevailing guidance is that employers should make every reasonable effort to enable employees to work from home as a first option and the recent weeks have proven that in many cases the majority work can be done effectively from home.

However, as time passes, there will increasingly be aspects of jobs which cannot be done from home or would be more efficient undertaken in the workplace.

Homeworking and the government’s guidance should not be considered as all or nothing; working from home will need to continue in some form for the foreseeable future as a gradual return to the workplace will rely on staff being to able to work from home on various occasions in order to maintain social distancing in offices and other places of work.

As the statutory duty to ensure, so far as reasonably practicable, the health, safety and welfare at work of all employees applies to systems as well as places of work, employers may wish to consider implementing a homeworking questionnaire to identify any issues arising when staff are working from home.

Use flexible furlough

The changes to the Coronavirus Job Retention Scheme from 1 August 2020 will allow employers to bring back furloughed workers on a part-time basis and indicate an appreciation that employees will not simply be able to spring back to their normal working patterns following the return of work for them to do.

Flexible furlough will allow employees who cannot work from home to return to work for at least some of the week where health and safety measures prevent them returning for all of it. It will also be a helpful option for furloughed workers with caring commitments or those who are anxious about returning to the workplace.

Although you do not need a written agreement to end furlough, employers should still be consulting with staff and giving reasonable notice of proposed return dates.

Listen to concerns

Employers need to be aware that employees have certain protected rights which could infringed by action they take in response to individuals raising health and safety concerns, taking steps to protect themselves or others, or even leaving or refusing to return to work in some circumstances.

It is the employee’s reasonable belief of the danger which they are, or would be, exposed to that is relevant – their knowledge rather than what their employer knew and did not communicate to them.

However, such a belief may not be reasonable, or any measures taken not appropriate, where an employer has discharged its health and safety duties, which provides yet another incentive for employers to carry out a risk assessment and discuss this with their staff.

Remember that a health and safety complaint in writing will amount to a grievance. Of no less concern, it may also amount to a protected disclosure if, in the reasonable belief of the worker, it was made in the public interest and tended to show prohibited conduct, such as a failure to comply with a legal obligation or the endangering an individual’s health and safety, had taken, was taking or was likely to take place.

The safest approach is to take all concerns at face value, discuss these without delay, keep a record of all decisions, and reach agreement where possible.

Although the return to the workplace may take longer and prove more challenging than leaving did, where employers remain flexible, act reasonably and take advice when necessary, they can be confident in their decisions.

If we can help you or your business, please contact myself or one of the Employment team at Jacksons Law Firm.

Paul Clark
Partner and head of employment, Jacksons Law Firm
pclark@jacksons-law.com or 0191 206 9626

 

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