“Our plan to rebuild: The UK Government’s COVID-19 Recovery Strategy” This sets out a three stage plan, with the timing for transition from each stage to the next dependent on five factors being, or continuing to be, satisfied, including whether the NHS has continuing capacity to cope with any increase or outbreak of COVID-19 and the development of ‘track and trace’ systems to manage any outbreaks of COVID-19.
The UK Government announced that its approach is “to return life to as close to normal as possible, for as many people as possible, as fast and fairly as possible” …. “in a way that avoids a new epidemic, minimizes lives lost and maximises health economic and social outcomes...’
According to the Recovery Plan, there is a balance to be struck between restarting ‘normal’ life while being cognizant of the continuing risk of further upticks in COVID-19 infections whether generally or in ‘hot-spots’. Accordingly, the Recovery Plan confirms that each of the steps may be extended and/or restrictions may need to be tightened further, either regionally or country wide, at short notice should the infection rate increase.
Although the Recovery Plan refers to the UK government's recovery strategy and sets out a three stage recovery plan, the steps and possible timing for each step referred to in the document apply only to England. The devolved administrations in Scotland, Northern Ireland and Wales have powers to set their own strategy and each of the three devolved administrations have indicated they will operate slightly different lockdown strategies and timings; with the Scottish government currently maintaining the tightest lockdown strategy.
Return to Work Guidance
Also, on May 11 detailed guidance papers were issued setting forth guidance for employers on managing workplaces safely during COVID-19. There are 8 guidance papers (the “COVID-19 Secure Guidelines”) covering different types of work including, office working, shops, factories and delivery/logistics. Employers may, depending on the nature of their business, have to have regard to a number of the guidance notes but there are certain general principles which are set out below.
- The first and overarching principle which was set out in the Recovery Plan is that “for the foreseeable future workers should continue to work from home rather than their normal physical workplace wherever possible” and “all workers who cannot work from home should travel to work if their workplace is open”. In other words where it continues to be possible for work to carry on from home then this should remain the case.
- In re-opening or in continuing operations, employers should consider the COVID-19 Secure Guidelines applicable to their operations; determine the specific actions they will take to comply with the guidance; and undertake a ‘COVID-19 Risk Assessment’ in order to determine how they can safely open and operate their business.
- In conducting any COVID-19 Risk Assessment an employer must consult with trade unions (where the employer recognizes trade unions) or with employee representatives where no trade unions are recognized. While the obligation to consult is a requirement under existing UK Health & Safety legislation in relation to an employer’s general obligation to conduct risk assessments, it would in any event be good practice to seek the views of employees and workers as they may well have practical suggestions (e.g. how a workplace may be reconfigured); and, if employees feel they have been involved in developing the relevant COVID-19 Risk Assessment they are more likely to feel comfortable returning to, or remaining at work, as and when their workplace re-opens.
- An employer should keep a written record of its COVID-19 Risk Assessment (unless it has less than 5 employees) and share the results of that assessment with its workforce. It is recommended that the assessment results are published on the employer’s website (if it has one). An employer must also once it has conducted its assessment display a ‘COVID -19 Secure’ notice in the workplace to show that it has followed the guidance. The form of notice which an employer must display is set out at section 1.2 of each sector specific guidance note at “Sharing the results of your risk assessment”.
- According to the Recovery Plan, employers must “reduce workplace risk to the lowest reasonably practicable level” and should:
- In every workplace increase the frequency of handwashing and surface cleaning;
- Make every reasonable effort to enable working from home as a first option. Where this is not possible then as far as possible workplaces should be reconfigured to comply with social distancing guideline - keeping people 2 metres apart;
- Where social distancing cannot be followed in full in relation to an activity consider if it needs to be continued. If it does an employer must take mitigating action such as using screens or barriers to separate people and/or using back-to back or side-working where possible.
- Employers should also consider whether, depending on the nature and type of business/workplace, to stagger arrival and departure times e.g. allowing people who might have to use public transport to travel to work out of ‘rush hour’; provide enhanced cycle parking and/or if relevant car-parking.
- Where employees must work in close proximity consider utilizing ‘fixed teams’ of workers who do not move into or swap jobs with other workers.
Consider how to reduce inadvertent contact e.g. use of ‘one-way ‘systems in access to and from areas; reducing the use of access touchpads where possible; limiting the numbers of persons using lifts at any one time.
- Meetings should, wherever possible, be conducted remotely; where this is not possible, a meeting room must be large enough for ‘social distancing’ to be maintained and no-one should share any items e.g. pens/whiteboards. Rooms and any shared workplaces e.g. in call centres should be rigorously cleaned after each use.
- Where there are common areas (e.g. in a shared office building) engage with other occupiers and landlords about the measures to be taken to ensure COVID-19 safe working will be achieved.
- Where possible interaction with clients and suppliers should be by way of remote meeting. However, where individuals must visit the workplace these visits should be limited in number and duration with the visitor being provided with guidance on the site/workplace’s COVID-19 policies before arrival if at all possible. Details of the visitor must be kept so that if necessary, they can be contacted.
- Delivery and despatch of goods should be managed to ensure limited contact, this includes considering revising pick-up and drop-off arrangements, reducing the frequency of deliveries and where possible and safe having single workers load and unload goods. The guidelines recommend that personal deliveries for staff should be discouraged, assuming they have previously been permitted
Can an employer require employees to return to work?
If the workplace has been the subject to a COVID-19 risk assessment and the employer has determined that the job is one which cannot be performed remotely but an employee is anxious about returning to work, we suggest the first step is to contact the employee and try to establish the reason for their reluctance to return. Employees may be prepared to return once they have been given assurances about their workplace and the measures which have been put in place.
Where an employee cannot return, for example because they have continuing child care obligations (schools will not re-open generally for some time), it may be appropriate to consider whether that employee can in fact be given alternative work which allows them to work remotely or possibly placing or keeping them on furlough, for more details on furlough click here. The employee may also wish to consider taking leave (using holiday entitlement) for a period.
Employers must consider the position of clinically vulnerable and extremely clinically vulnerable staff carefully. Extremely clinically vulnerable people are still required to remain away from work and ‘shielded’ i.e. to remain at home. If they cannot work or continue to work remotely, they may be furloughed and if not furloughed or working remotely are entitled to statutory sick pay. Clinically vulnerable people again should, where possible, work remotely; if this is not possible then they should be working in a position where they can maintain social distancing, for example this may in a supermarket involve such individuals not working on the ‘shop floor’.
Can an employer maintain some employees on furlough while others return?
In principle there is no issue with keeping some employees on furlough while others return, e.g. if the workplace is subject to a phased or gradual re-opening. Some employees may prefer to remain on furlough, if they have childcare commitments or are in a household with a clinically vulnerable person. In selecting employees to return to work or inviting employees to indicate whether they wish to return to work an employer should apply objectively justifiable criteria in determining who may return; in addition employer should not make assumptions about an individual employee because of their sex and/or caring responsibilities i.e. it should not assume that a worker with children cannot return to work.
If employees are being called back from furlough, an employer should ensure that in doing so it complies with any notification terms it agreed when the employee went onto furlough about how/when they might have furlough terminated early and/or set the return date for the end of the relevant furlough period applicable to that employee. The employer will also have to ensure that it notifies HMRC (the UK tax authority) that a furlough period has ended in respect of that employee and cease claiming for that employee under the Job Retention Scheme.