Working from home guidance to change from 1st August
What does this mean for your business?
The current government guidance continues to state that people should work from home if they can. Whilst there has already been a soft change in emphasis, earlier today Boris Johnson announced that this guidance will change from 1st August 2020 – “we’re going to give employers more discretion and ask them to make decisions about how their staff can work safely”.
This places the onus on employers to make decisions on when and how to re-open their workplaces.
The 1st August isn’t far away, but it’s important not to rush making a decision. Planning, preparation and consultation with staff is key.
Cecily Donoghue, specialist employer lawyer outlines some of the key considerations to be aware of.
Does this mean I have to return staff to the workplace?
No. The Prime Minister went on to clarify that employers could decide to continue home working.
However, they could also decide to ask staff to return to the workplace. However this is strictly subject to ensuring that the workplace is safe and COVID secure.
What are my obligations?
Pre, during and post COVID 19, all employers have a duty to protect the physical and mental wellbeing of their staff. This is a duty to take reasonable care and provide a safe place and system of work.
The minimum steps needed are:
- identify what could cause injury or illness in your business (hazards)
- decide how likely it is that someone could be harmed and how seriously (the risk)
- take action to eliminate the hazard, or if this isn’t possible, control the risk.
Employers need to ensure “so far as is reasonably practicable, the health, safety and welfare at work of all employees.”
If you employ 5 or more people, then you must have a written health and safety policy. Most businesses will therefore already have a previous policy and risk assessment in place.
Remember that as an employer your duty is to take all reasonable steps to identify and then mitigate the risks posed to health and safety. Whilst the current pandemic creates new and uncertain issues to try and resolve, you’re not obliged to create a vaccine. It’s about doing all that is reasonable for your workplace and staff. The HSE confirms that:
“You’re not expected to eliminate all risks but you need to do everything ‘reasonably practicable’ to protect people from harm. This means balancing the level of risk against the measures needed to control the real risk in terms of money, time or trouble.”
Don’t forget that staff also have their own obligation to safeguard the health and wellbeing of themselves and others.
How do I complete a risk assessment?
As mentioned above, nearly all businesses should already have a risk assessment. This can either be updated to incorporate the risks arising from COVID-19, or a new specific COVID risk assessment can be created.
The law doesn’t require a particular format, but the HSE website has some helpful templates that you can use as a starting point.
How do I become COVID secure?
The Government previously released the COVID-19 Secure Guidelines (for businesses in England) which sets out the five key steps to working safely. They also published more tailored guides for various different types of workplace.
Following these guides is not an easy win to meeting your obligations because there isn’t a one size fits all solution to safety. It will always come down to what is reasonable in your own workplace.
If however you fail to even consider and/or implement these steps, then it’s highly likely that you risk being found non-compliant.
Step 3 of the current guidelines is to take all reasonable steps to help people work from home. In light of the Prime Minister’s announcement today, we anticipate these guidelines will also be updated from 1st August.
What about staff who are shielding?
Previously in June, the Government announced that the 2.2m people who are extremely clinically vulnerable will no longer need to shield in England from 1st August. This means that, subject to a safe working environment, they could theoretically return to work.
The changes also mean that those shielding will no longer be eligible for statutory sick pay unless they become ill with the virus or are self-isolating and cannot work from home.
Discuss your ideas with staff in advance and see if they feel comfortable and able to safely return. If homeworking is not possible then they should be offered the option of the safest on-site roles which enable them to maintain social distancing guidelines.
The guidance clearly states that ‘if they cannot maintain social distancing, you should carefully assess whether this involves an acceptable level of risk‘ and employers will need to give careful consideration to this issue. It’s not just the impact of the virus, but many of these employees may also be categorised as disabled under the Equality Act 2010 and so employers also need to be mindful of discrimination risks as well as making reasonable adjustments.
If someone who was shielding is asked to return to the workplace then we recommend that you carry out a risk assessment specifically for this individual. This should be shared and discussed with the employee collaboratively. This not only ensures that the risk assessment is likely to be more detailed but can also reassure the member of staff of the steps you’ve taken and are willing to take to make the workplace Covid-secure for them.
Consulting with staff?
We’ve previously recommended in our Covexit guide that businesses consider appointing a staff consultation committee. https://gllawuk.wpengine.com/resources/covexit-planning-ahead/
This body can be used to discharge statutory obligations such as the health and safety obligations, but also potential future issues such as collective redundancies and changes to terms and conditions.
Regardless of the legal compliance points, a committee also ensures that staff feel engaged, heard and listened to by their employer. We’ve seen instances where staff have put forward new initiatives and ideas that assist an employer to re-open more quickly.
Don’t forget to consider the methods of communication too. Whether you prefer to email, publish updates on intranets or other platforms, do consider both alternative and multiple forms of communication to ensure that messages are properly communicated.
Much of this will have already been established since the start of lockdown, but keep this under review as staff are more likely to be mobile as more restrictions are lifted and we move towards the end of the furlough scheme.
What if they refuse?
Employers will need to be sensitive to staff concerns and handle the return to work in an understanding way. Ultimately, the options available for dealing with a refusal will depend on the grounds and specific reasons why that individual is unhappy to return.
Generally speaking, if an employee is unhappy about returning then furlough or home working are alternative options. If this isn’t viable then technically there are options to stop paying or dismiss staff, but this is very risky and fact specific, so contact us first before considering any such measures.
To contact Nick Jones or Cecily Donoghue for advice and support on planning a return to the workplace, risk assessments, consultation or any employment law issues, please call 0117 906 9400 or email email@example.com.