If you and your team are planning your return to the office, this article contains best practice guidance compiled by HR advisor, Monica Beckles. Please visit these articles for specific guidance regarding Sussex Innovation's plans to ensure that our spaces are Covid-19 secure, and our current health and safety requirements for tenants and visitors:
Government guidance issued on Monday 11th May confirmed that, for the foreseeable future, employees should continue to work from home wherever possible. All workers in England who cannot work from home should be 'actively encouraged' to return to work. Businesses operating in sectors such as food production, construction, manufacturing, logistics and scientific research in laboratories are allowed to be open. Hospitality and non-essential retail businesses are currently required to remain closed.
Should we be asking our employees to return to the workplace?
Whilst employers should take account of the ongoing guidance from the UK government, they should also consider the general law by assessing the risks to employees, clients and customers. Employers must therefore undertake a balancing act, managing the health risks that workers face against the financial pressures on their business. The imminent reduction of payments under the furlough scheme, problems faced by those needing childcare and the safety risks of new working practices must all be given due consideration.
We recommend that you should confidently be able to answer yes to all three questions below before bringing workers back to the workplace:
- Is it essential? If it is not essential for your workers to be 'in the building' and they can continue to work from home, they should continue to do so for the foreseeable future. If they cannot perform their job from home or their home environment is not conducive to work, could the business continue to use the Coronavirus Job Retention Scheme for longer to give the time needed to consult workers, put safety measures and clear employee guidance in place?
- Is it sufficiently safe? Employers have a duty of care to identify and manage risks to ensure that the workplace is sufficiently safe to return to. Employers should take their time with gradual returns to work to test health and safety measures in practice and ensure they can work with larger numbers before encouraging more of their workforce back.
- Is it mutually agreed? It is vital that there is a clear dialogue between employers and their people so concerns can be raised and individuals' needs and worries considered. There will need to be flexibility on both sides to accommodate different working times or schedules as ways of managing some of these issues.
Got it, but we still need our workers back in the workplace.
If upon considering the points above it is still necessary for your workers to come to the workplace, we have set out the ten steps that employers will be required to take:
Good communications are imperative, and employers are advised to consult with their employees about any return to work and the proposed new infection control arrangements. Ideally, consultation should be with individual employees before any physical return to work, as part of a sensitive and supportive conversation with their line manager or HR representative. Engagement will help to identify any adjustments and support necessary to help workers feel more confident about returning to work after lockdown. Where relevant, employers should also seek union input for any return to work measures.
2) Choosing which employees to bring back first
If employers are selecting certain employees to return to the workplace rather than all employees, the selection process must be conducted fairly. As well as business needs, decisions will also have to be based on factors such as availability of transport for individual workers to get to a physical workplace and childcare availability.
There will be employees who do not want to travel on public transport or are particularly concerned about leaving their homes each day. In this instance, employers are advised to listen to the employee's concerns, especially if they are vulnerable, live with someone who is vulnerable, or have a disability. Consider any proposals they make and accommodate them as far as practicable. Remember that employees with some mental health issues may be anxious about travelling and employers should try to accommodate their requests and are obligated to do so if their mental condition constitutes a disability.
We encourage employers to develop a fair and objective selection criterion to score and select the order for employees to return. Employees who have recovered from coronavirus may appear the obvious choice for a return to work but employers should not use this criterion as there is little evidence about the extent of recovery and the presence of antibodies to protect from a second infection. Employers must also be careful not to discriminate when applying the criterion.
3) Health and safety duties
- Employers have a contractual duty to take care of employees' health and safety, and other statutory duties including:
- Implied duty to protect the health and safety, of all employees, whether working at the workplace or from home.
- Duty to look after the mental health, as well as physical health, of employees.
- Duty to protect members of the public, clients, customers, and contractors.
- Duty to manage the health and safety risks from the workplace itself including equipment such as hand driers and air conditioning systems. Other workplace issues include cleanliness and washing facilities.
- Provision of safe systems of work possibly including the introduction of one-way systems and the provision of PPE subject to availability.
- Information and training (including reminding employees of their responsibilities in meeting health and safety requirements).
4) Risk assessments
Employers will need to ensure that they have conducted appropriate health and safety risk assessments to identify and manage risks appropriately. A risk assessment has a crucial role in ensuring a safe return to the workplace if the appropriate control measures which reduce or remove any risk of contracting Covid-19 are adopted. Employers should undertake risk assessments and keep them under review as government advice changes. Please refer to the Health and Safety Executive (HSE) for more information.
The risks around visitors entering the workplace, such as clients and customers should be assessed too as there is also a legal obligation to ensure their health and safety and to prevent, as far as reasonably practicable, visitors from bringing the virus into the workplace. Please refer to our guidance for ieach of our sites (links at the top of this article), which feature more detail on our policies around visitors.
If employers do not take appropriate steps to comply with the relevant law and guidance such as social distancing at work or ensuring workers in 'shielded' categories follow NHS advice to self-isolate, the HSE could simply provide advice or issue enforcement notices. The HSE will be conducting spot inspections and responding to reports from concerned individuals. The HSE has issued guidance on reporting cases of Covid-19 under the 2013 Reporting of Injuries, Diseases and Dangerous Occurrences Regulations (RIDDOR). The guidance can be found here.
Employers' health and safety duties - including risk assessment - extend to mental health and wellbeing as well as physical infection control measures. Refer to the HSE stress risk assessment tools here.
Employees with new working arrangements, whether working from the office or from home, can suffer from stress or mental health issues. Maintain contact and look for signs of problems. Employees who have been furloughed should be included. Individual risk assessments for both home and workplace workers should be conducted if an employer becomes aware that an employee is struggling with their mental health.
Proactively monitor staff in order to spot the symptoms of poor mental health and point the individual to the relevant support available. Consider if managers may need training in recognising the symptoms so they can signpost to support such as HR, occupational health, or an employee assistance helpline.
6) Home working
Do not forget your employees that continue to work at home. Employers have the same health and safety responsibilities towards those working from home as for any other workers, including both physical and mental health.
7) Review your policies and procedures
Policies and procedures should be reviewed and updated accordingly to reflect changes to working practices. Will working hours be altered to take account of the challenges with getting to and from work? How would day to day communication channels need to change to support the flow of information in a safe way? Do you have a homeworking policy, or flexible working?
8) Travelling to work
Whilst the government advice in England is to 'actively encourage' a return to work, they have also asked workers to try to avoid public transport and maintain social distancing. Employers should therefore encourage employees to do so and may consider, where possible:
a) Provision of parking spaces
b) Secure bicycle parking
c) Flexible or staggered working hours by agreement to enable employees to avoid more crowded public transport
d) Special provisions for vulnerable staff (e.g. the elderly, pregnant, and those with impaired immunity) helping them to avoid public transport or its use at peak times.
Give serious consideration to permitting staff to continue to work from home - particularly those listed in d) above. Whilst it may be difficult for employees to prove that they contracted the disease travelling into work and that the employer should be liable, they may be able to show that they were unnecessarily exposed to risk when there were alternatives available.
Employers are justifiably concerned that an employee may be exposed to the virus whilst at work. If employees can prove they caught coronavirus at work and the employer cannot show they have taken appropriate steps to prevent this, the employer could be liable for the employee’s losses. Although it may be difficult for an employee to prove, there are potential liabilities for failure to take care of staff, particularly if they are especially vulnerable. Employers must be able to show that appropriate protections and adjustments were taken to defend any subsequent claim for health and safety breaches or discrimination.
Employers should therefore keep records to demonstrate the steps they have taken to manage risks appropriately and that they have:
- Undertaken risk assessments, including on individuals where required
- Identified potentially hazardous situations
- Made changes to reduce exposure
- Updated policies and procedures and communicated them to the workforce, including on sickness and self-isolation
- Where appropriate, provided training to managers and employees
- Monitored compliance with new health and safety rules and policies
- Performed random checks and kept ongoing compliance reports
- Encouraged the reporting of problems and an open environment that welcomes feedback
Remember - the legal and moral position for employers on encouraging employees to return is a difficult decision to make. Whilst the government in England is 'actively encouraging' those who cannot work from home to return to work, there is no legal obligation to do so.