Employers’ Considerations for the Return to Work (Part 1 of 2)

The lockdown imposed in response to the coronavirus outbreak is now in the process of being lifted – albeit gradually. As part of this the Government are encouraging employees to return to work. Some businesses that were legally required to close are now reopening and more will follow in the coming weeks. The Coronavirus Job Retention Scheme (CJRS) that has supported more than 8 million jobs since March will change in July so that employees who return to work part-time will still qualify for support. From August employers will have to start contributing to the cost of furloughed employees with the scheme being ended altogether at the end of October.

So this month we are looking at the things that employers need to think about from an employment law perspective when starting on the journey to normal working. Much of this is common sense, but there are potential legal difficulties that employers can avoid by listening carefully to the concerns of employees and adopting a flexible approach.

Working from home

Despite a limited easing of the lockdown, Government advice remains that employees should work at home where that is possible. Encouraging employees to continue to work from home not only protects those employees from the risk of infection, it also helps employers provide a safe workplace for those employees who have to come into work by reducing the number of people who will be on site at any one time.

Many employers will be used to dealing with requests from employees to work at home. Generally, the employer is free to refuse such requests if there are genuine business reasons for doing so. In the current crisis however, the question is whether home working is possible – not whether it is the just as productive or effective as employees coming in to work. The employer might prefer it if employees came in to work and have good reasons for that view. But if the work can be done at home, then it should be. An employee is obliged to obey reasonable instructions but if most of their work is done in front of a normal computer screen then it is difficult to see how an instruction to come into the office could be a reasonable one.

This works both ways. An employee might prefer to come in to work rather than stay at home. The contract of employment may not have envisaged home-working and will most likely provide for a specific place of work. Given the current situation however – and where the nature of the work allows it – an instruction to work from home is likely to be a reasonable one.

Given the additional workplace precautions that are likely to be needed for the foreseeable future and the limit they will place on the number of people who can attend work, it may be a good idea to regularise home working arrangements that were initially improvised in response to the immediate crisis. As working from home becomes a more long-term prospect employers will need to consider the health and safety implications. Since home working is not usually a high-risk activity the steps taken need not be onerous, but some sort of work-station assessment will be necessary as well as consideration of fire safety. Employers will also want to consider the best way to manage performance and measure productivity as home working becomes a more established feature of the business. This may involve clearly communicating the employer’s expectations around working hours. Home working provides an opportunity for a more flexible approach and this can benefit both sides – especially if the employee has child-care issues. However the employer may want to insist on certain core hours always being worked or specify when the employee must be available to participate in meetings or be contacted by a manager.

Employees working from home are of course undertaking additional expenses as a result. They are using more electricity at home and using their own broadband capacity. There is no specific obligation on the employer to make any contribution towards these additional costs but under the current tax rules a payment of £6 per week can be paid to cover the additional expense of working from home.

Returning furloughed staff part-time

The next stage of the Coronavirus Job Retention Scheme will begin on 1st July. Employers will be able to bring employees back to work on a part-time basis, with the Government continuing to subsidise their pay so that they continue to receive up to 80 per cent of their normal pay to a maximum of £2,500.

This option will only apply to employees who have already been furloughed under the original scheme. The last applications under that scheme will have to be made by 30 June – meaning that employees will have to have been placed on furlough by 10 June in order to qualify.

Full details of the new arrangements are yet to be set out by Government. It is clear however that the employer will need to pay in full for the proportion of a normal working week that an employee will be asked to perform. The CJRS grant will only be made in respect of that part of the week that the employee will not be working. The employer will need to provide details of the employee’s normal working week so that the appropriate amount of CJRS money can be calculated.

Employees who have been placed on furlough will have agreed that they will not perform any work for their employer. If the furloughed employee is being paid in full – that is – the employer is topping up the grant under the furlough scheme so that the employee suffers no loss in pay, then bringing the employee back on a part-time basis is straightforward.

But in many cases the parties will have agreed a lower rate of pay for the period of furlough in line with the funding available under the job retention scheme. so that the employee is only receiving 80% of their usual salary – capped at £2,500 a month – in line with the funding available under the scheme.

If the employer wants the employee to return to work on a part-time basis and continue to be paid less than his or her normal salary, then that will require a fresh contractual agreement. The employee should be asked to work on a part-time basis in return for a salary made up of the employer’s payment for work done together with the amount that will be funded by the CJRS. It will be important to stress that the arrangement is temporary and that normal working will resume either when the job retention scheme ends, or when the employer is ready to bring the employee back full-time.

If an employee is paid by the hour with no guaranteed minimum week, then there is no need for a separate agreement. The employer will be able to ask them to return to work a limited number of hours, in accordance with their contract. The employee will then gain the added benefit of an additional payment from the job retention scheme based on their pay in the previous tax year.

Making the workplace Covid-secure

The employer has a duty to take all reasonable steps to provide employees with a safe place to work and a safe way of working. The coronavirus crisis is unique in that it has an impact on the safety of every workplace in the country and all employers will need to develop a specific response to it. In the first instance that means carrying out a risk assessment designed to identify the risks of transmission of Covid-19 and identify the steps that can be taken to reduce that risk. Employees must be fully informed of the results of this risk assessment and the employer must consult either the appropriate health and safety representatives – or the employees directly – over any new safety measures that are to be introduced.

Central to these will be handwashing and hygiene procedures. Enhanced cleaning regimes will be needed for busy areas with particular attention payed to surfaces that are touched regularly. Employees should be given clear instructions about frequent handwashing and provided with hand sanitiser around the workplace – not just in the toilets.

The maintenance of social distancing is the next key requirement. Wherever possible employers should ensue that employees remain at least 2m apart and avoid the use of shared workstations. Employers should introduce appropriate signage, including floor-tape to mark out 2m distances, to help employees judge the correct distance. Where appropriate, employers could also introduce a one-way system for employees walking around the workplace.

Where keeping people 2m apart at all times is not reasonably practicable then the employer must do everything it can to manage the risk of transmission. This may mean using barriers or screens to sperate people, staggering arrival and departure times, having employees work back-to-back rather than face-to face and reducing the number of people each employee has to interact with.

One area that the employer cannot control is the employee’s journey to work. Employees are being advised to avoid public transport wherever possible. Where public transport is available, it is likely to be at a considerably reduced capacity. Employers should consider what measures they can take to assist employees in making their journey as safe as possible. This might mean providing enhanced parking facilities or even making use of the government’s cycle to work scheme to help employees buy bicycles! Where employees have no alternative to public transport then employers should consider flexible start and finish times to allow employees to avoid congested periods.

Read the second part of this article here:

Employers’ Considerations for the Return to Work (Part 2 of 2)

For employment advice for your business, please contact Richard Gvero.

Please note the contents of this blog are given for information only and must not be relied upon. Legal advice should always be sought in relation to specific circumstances.