Legal answers: Six things to consider when getting staff back to work

In this article: The industry is now opening up more and employees are returning to work, but as numbers grow, there are things you need to consider to keep employees safe

1. Facilitating and enforcing social distancing

The current requirement is for people who do not live together to remain two metres apart (although this may change in the near future). This will cause problems where workstations are closer together than this. Employers will need to move workstations so that they are further apart and so that people don’t work face-to-face unless there are screens between them. It’s advisable to put distance markers on the floor and to implement a one-way system where possible. Increase the number of people gradually so that such systems can be assessed and adjusted if necessary. It’s also a good idea to stagger start and finish times and if a rota system is implemented to have the same people working together on each occasion.

2. Carrying out temperature checks

Temperature checks are a bone of contention and an option that needs to be considered carefully. Somebody’s body temperature is special category data and employers need a legal basis for processing that data or risk being in breach of Article 9 of the General Data Protection Regulations 2016 (as implemented by section 10 of the Data Protection Act 2018).  The size and nature of your business is likely to be a factor to consider, this measure may be more appropriate where large portions of the workforce cannot work from home. If this is a course of action you think is necessary, it’s perhaps a good idea to talk through options and any related challenges with us.

3. Flexible Furlough Scheme (FFS)

From 1 July the FFS means that employers can bring back workers on a part-time basis and still claim support from the government to top up wages for the hours not worked. Workers must be paid 100% of their normal rate of pay for any work undertaken but can remain furloughed on at least 80% of pay for the remainder of their normal weekly hours. It’s likely that the agreements used to furlough staff previously will need to be updated to reflect the fact that the requirement is no longer not to work, but to work flexibly, as and when required by the employer between 1st   July and 31st October 2020 when the Coronavirus Job Retention Scheme will cease to exist. Such a requirement will be a change in terms and conditions of employment and must be permitted by the contract of employment or agreed with the worker to avoid a breach of contract. 

Employers can only access the FFS in respect of workers that have been furloughed for a minimum of three weeks prior to 30th June which means it is now too late to furlough those that have not been furloughed previously.

From the 1st August 2020 the level of financial support is being reduced so that the cost to employers is gradually increased on a monthly basis until 31st October when government financial support is expected to cease completely.

4. Extremely vulnerable workers

Those who are deemed to be extremely vulnerable due to underlying health conditions are strongly advised to continue shielding until at least 30th June 2020. As such they should be permitted to continue working from home or, where that is not possible, kept on furlough leave or statutory sick pay. If alternative duties can be found that would enable a vulnerable person to work from home that should be facilitated. Often those defined as extremely vulnerable people will meet the definition of disability set out in section 6 of the Equality Act 2010.

If a disabled person is put at a substantial disadvantage as a result of a provision, criterion or practice, or a physical feature of the workplace, the employer is under an obligation to make reasonable adjustments to remove the disadvantage and a failure to do so may result in a claim for disability discrimination being brought. Reasonable adjustments should not be imposed on workers, so it’s important to discuss the options with the disabled person before any decisions are made.

5. Transport to work

For those who must go back to work avoiding of public transport is advised. This may see an increase in people walking, running, cycling and driving to work than before. Employers should consider whether they can accommodate an increased number of bikes safely, and whether they can subsidise parking.

For those that must use public transport some flexibility in working hours is advisable to reduce the need to travel at peak times.

6. Ongoing review and adaptation

Nobody can say how long we will live in this new normal it’s safe to say that the world has changed and is likely to continue changing for the foreseeable future. Employers need to stay on top of government guidance and review and adapt their processes regularly. Communication will be key to ensuring workplace health and safety and an engaged workforce. Involve employees, update them regularly and keep a record of what has been done and why.

Please note that there are different rules in force in the different countries within the UK. This guidance note is relevant to England.

This article should only be considered as guidance and should not be taken as specific legal advice. To claim your free 45 minutes of legal guidance with Taylor & Emmet Solicitors as part of your IMI membership call 08701 200009.