As the government takes its initial steps towards reducing the restrictive measures in the fight against COVID-19, businesses across the UK are staring down the barrel of possibly the biggest collective employee relations challenge they’ve ever faced: bringing about the gradual return of the workforce. Recent announcements have delivered as many questions as answers about how this will work in practice. Furthermore, the easing of restrictions is entirely conditional upon and led by the government’s defined five tests in relation to the spread and control of the virus; inevitably this means that the guidance will change from time to time and may move backwards or forwards. What follows is a round-up of all the key information you need to consider in order to make agile and appropriate resourcing and safeguarding decisions for your business. (For the quick read, please see our Checklist for employers.) We will be updating this blog regularly, as guidance from government and Public Health emerges, providing you with one central resource so that you can keep on top of developments.
Protecting jobs and livelihoods: government support
Extension of the Coronavirus Job Retention (Furlough) Scheme
The Chancellor has announced a continuation of the furlough scheme until the end of October 2020, guaranteeing 80% of pay (up to a maximum of £2500 gross per month) for all workers who are unable to carry out their jobs as a direct result of COVID-19. The eligibility rules and claim process for the furlough scheme remain unchanged until the end of July (see our COVID-19 FAQs blog for a full outline). Thereafter, and until the end of October, the government will be asking employers to share the cost of the furlough scheme and will also relax the rules of the scheme by enabling furloughed workers to carry out some part-time work. Clearly, employers will require much more information on both of these latter points; full details have been promised by the Chancellor ‘by the end of May’, and we will ensure these are shared via this blog as soon as they are announced.
In the event that you provided your furloughed staff with an end date to their current period of furlough leave, you will need to seek their agreement to any further phases of furlough, and should follow the same protocols of consultation and written confirmation, outlining the length and terms of the new furlough arrangements.
Self-Employment Income Support Scheme
There has, at the time of writing, been no mention of any extension to the concurrent Self Employment Income Support Scheme. However, the scheme’s application process has been opened earlier than planned and is now available, with promises of funds being available to those eligible within six days of applying. The HMRC website provides a helpful online checking tool for anyone uncertain about their eligibility. If you meet the required criteria, you can make an online claim.
Managing downturn: redundancies, lay-offs and reducing hours or pay
The easing of restrictions will be gradual, and for many businesses, there will be a continued and significant impact over the long term. Regrettably, for some organisations this will mean a downturn in business, placing some roles at risk of redundancy. We would encourage any employers in this position to seek advice from our HR team; the context of COVID-19 does not absolve employers from their legal and best practice obligations around managing redundancies. You will need to consider:
- meeting the ETO (economic, technical, organisational) criteria
- meaningfully consulting with affected employees (in certain cases within specific timescales)
- reasonable alternatives (including the use of furlough)
- managing a fair selection process
- agreeing the correct redundancy terms.
Our expert HR team can provide advice and support you through the redundancy process.
Aside from the obvious alternative of furloughing any staff who cannot be provided with work, there are other options to consider in order to avoid the more permanent decision to make employees redundant. Where possible, examine your costs; you may consider temporarily suspending any discretionary benefits, stopping overtime, or redeployment of staff. It is possible that your contract of employment includes a ‘lay-off’ clause, reserving you the right to temporarily send employees home with no work (on potentially no pay or reduced pay, depending on the wording in the contract), provided you give them sufficient notice. In the absence of such a clause, however, you cannot impose any such change to the contractual arrangement without placing yourself in breach and risking a dismissal claim. Tread carefully with the use of lay-off, even if it is provided for in the contract. Firstly, there is no reason to invoke it for any staff who would be eligible for furlough, and for those who are not, you would still be required to pay a minimum guarantee payment for some of the lay-off period. Finally, any period of lay-off which exceeds four weeks (or six weeks in a thirteen-week period) automatically triggers an entitlement to claim redundancy. Timing is therefore everything, and HR advice is crucial before heading down the path of lay-off. The same applies with short-term working – even if the contract of employment enables you to impose reduced hours, you risk exposure to a redundancy claim if it becomes a longer-term arrangement.
Most contracts, however, make no express provision for any form of lay off or short-term working arrangements. In this case, any such change must only be made through consultation and by agreement in writing with the individual employee. Failure to consult meaningfully and gain agreement would at worst constitute a breach of contract in the event of an imposed change to contractual terms, and at best destroy the employer/employee relationship, particularly at a time when employees as well as employers may be very concerned about financial stability and job security.
With a clear need to reduce costs in order to safeguard the future of their business, many organisations have already taken the difficult decision in recent weeks to seek employees’ approval for a temporary reduction in pay, even in the absence of any reduction in hours of work. This will have required full consultation and agreement from all affected parties (a pay cut cannot be imposed; much like the examples above, it forms a fundamental and significant change to contractual terms, even if only temporary), with written follow up to confirm the reason, nature and duration of the changes agreed. Any introduction or extension of such an agreement would need proper consultation, agreement and follow up. Ideally, you will have exhausted all other options for cutting operational costs before taking this approach, but it is likely that, if you can demonstrate this, your staff will take a pragmatic view on accepting a pay cut in favour of job losses.
No employer enters into the contractual relationship with their staff with the intention of embarking on conversations about redundancies, lay-offs, reduced hours or periods of furlough. It is complex, challenging and frankly distressing for both parties. Handling it effectively is not just about managing the process but also about managing the impact on those individuals affected directly (the employees themselves) and indirectly (their colleagues) so that everyone can move forward as positively as possible. Our HR team are available for any advice and support you may need throughout.
Resourcing your business for the return to work
Who should ‘return to work’, and when? The latest government guidance
The message from government is that employers whose businesses remain open should take all reasonable steps to enable their staff to work from home. Those who can work from home must do so, and employers should take steps to support this as far as possible by discussing home working arrangements, providing remote access and suitable equipment, creating inclusive communication methods, and looking after the physical and mental wellbeing of all homeworking employees.
However, in cases where homeworking is not possible (either because of the nature of the work, or because personal circumstances prevent this), the message is clear that staff can and should go to their place of work, subject to the workplace being open and COVID-19 safe. Whilst the government has defined Wednesday 13th May 2020 as the date from which this applies, this is not at the expense of safety and caution. You should therefore work to a timetable that is practical and realistic for your business, enabling you to take all the necessary measures to provide a safe place of work and minimise the risk of infection before you recall anyone to your premises. In addition, you will need to give any furloughed staff reasonable notice of any requirement to return to the workplace, in order that they can make any necessary arrangements (e.g. childcare). A physical return to the workplace, where appropriate and necessary, is likely to be phased and gradual.
Who should return to work, and when? Applying the guidance in context
Official figures from the Office for National Statistics (ONS) showed that at the start of May 2020, 23% of employees had been placed on furlough, and that during April almost 50% of adults in employment were working from home as a result of social distancing and lockdown measures. Creating a roadmap out of the COVID-19 crisis will require an individual and tailored approach that suits your business, your employees, and the challenges faced by both parties. The Chartered Institute for Personnel and Development (CIPD) recommends a ‘people first’ approach; one which takes into account the physical, emotional and mental well-being of the workforce. As an employer, you’ll also need to balance this against the needs of the business and the required health and safety measures. Tricky waters, to say the least.
Whilst on the face of it the government’s instruction is simple, it becomes more complicated when applied in certain contexts (parents with children yet to return to school, employees who are defined as vulnerable or living with someone who is shielding, those reliant on disrupted or limited travel to work options, to name but a few). With little to follow in the way of guidance, and nothing by way of precedent, employers are being urged to use a common sense, fair and sensitive approach to managing their resourcing decisions, and apply their own contextual judgement based on the unique circumstances of each organisation, job role and job holder. For example, clearly employees cannot reasonably be expected to attend a workplace until and unless they can leave the home in the first place (childcare, being a case in point – given that schools are not fully re-opening in line with business timings – and shielding being another example). Flexibility, inclusivity and open communication will be central to how your decisions are made and how well they are received. The CIPD urges businesses to ensure that they can meet three key tests before bringing people back into the workplace:
- Is it safe? See further information below regarding adapting workplaces to meet COVID-19 safety guidance
- Is it essential? If the work can be done remotely, then it should be
- Is it mutually acceptable? CIPD research shows that 4 in 10 people are anxious about returning to work. It is therefore clear that employers need to listen to concerns, and that both parties need to be flexible in their approach to facilitating a workable means of addressing these concerns
Building a workable resourcing plan (whether that involves employees returning to the workplace, working from home, or a mixture of both) will require a consultative approach and a clear, fair and transparent rationale to support your decisions. Larger organisations, and those operating with trade unions, should consult with the relevant employee representatives. In smaller businesses, where it is feasible to reach out individually to employees, you should endeavour to do so; discuss the nature of the available work, the practicalities of working from home (and the support needed to make this work effectively), the requirement (if relevant) for any on site presence, and the challenges, concerns and solutions that flow from this, both from a business and an individual perspective. Take all possible steps to identify any staff who are extremely vulnerable (and therefore shielding at home – these employees should only work from home, and if they cannot, they should be furloughed subject to eligibility) or clinically vulnerable (at increased risk, but not required to shield) and ensure that you involve them in any discussions regarding the nature of their return to work, including agreeing suitable adjustments or alternative arrangements. Bear in mind the need to consider any changes in domestic circumstances (such as caring responsibilities) and be prepared to consider flexible approaches to support this, such as altered working patterns, or a phased return to work.
Finally, there will be many questions surrounding those employees for whom work (which cannot be done from home) is available, but who are reluctant to return to the workplace either due to increased vulnerability or anxiety about exposure to risk. Should (and indeed, can) you require them to come in to work? Ultimately, the acid test that will be applied after the fact, in the event of a dispute, is whether you acted reasonably and fairly, both in the steps you took to follow government and Public Health guidance and the approach you took to considering alternative solutions in the precise context of the employee’s circumstances. Again, with no precedent to fall back on, this is uncharted territory. However, a common-sense approach would be to hear their concerns, address them by demonstrating the measures you have taken to assess and minimise risk, and, if they still do not feel happy, discuss and agree alternatives. This may take the form of redeployment (into a role or duties that can be carried out from the home), use of the furlough scheme, or, in the absence of eligibility for furlough, offering unpaid leave. If you cannot reach a sensible compromise or agreement that works for both parties, it is probably time to seek HR advice before taking any further steps.
The decision about bringing some or all of your staff out of furlough, back to the workplace, or working flexibly will require you to consider many variables as you consider things from a practical, logistical, safety, legal and considerate point of view. It is critical that you also keep equality front of mind, and make sure that none of your decisions support or disadvantage one particular group of employees over another, whether directly or indirectly.
Assessing risk: consulting and implementing COVID-19 workplace risk assessments
Duty of care and COVID-19 risk assessment
Whilst enabling working from home is the first and foremost priority for every business, not every business’ trade will lend itself to these arrangements. For those who are now able to (and need to) re-open their doors to staff, the duty of care to provide a safe place of work has never been more prominent. Prior to welcoming staff back, employers are required to carry out a specific COVID-19 risk assessment. It is widely recognised that the people best placed to assess and identify risks associated with any job roles are those who carry out the work; this, coupled with the fact that there will inevitably be individual circumstances (such as those defined as clinically vulnerable) which need to be accounted for, means that effective risk assessments must be carried out in consultation with employees (or their representatives). Where employers share the workspace with other employers and contractors, a collaborative approach needs to be adopted between all parties.
Small businesses (employing less than 5 people) will not be required to write up their risk assessments, whilst all other organisations are expected to share the results of the risk assessment with their staff (those with more than 50 employees should publish their results on company websites). The Health and Safety Executive (HSE) website provides some useful advice on risk assessments, including a risk assessment template and examples.
Finally, all workplaces will be required to display a poster, in areas visible to all staff and visitors to the premises, to show that you have followed the government’s COVID-19 safety guidelines. The poster can be downloaded here.
Assessing risk to ‘at risk’ and ‘vulnerable’ employees
Whilst your risk assessment needs to take into account a range of factors that impact the whole workforce (such as office layout, communal areas, cleaning, entry and exit points) there are clearly specific groups who require a very particular focus. Consideration needs to be given to managing the increased risk to any employees living with an individual defined as clinically extremely vulnerable, as well as those who are themselves clinically vulnerable. These employees should be offered the option of the safest available on-site roles in the event that working from home really cannot be facilitated.
Every aspect of your risk assessment should be conducted with workplace equality in mind. It is important to involve and communicate with workers whose protected characteristics may expose them to a higher level of risk, or for whom the measures you implement may be inappropriate or challenging (so that you can make reasonable adjustments accordingly).
Controlling risk: identifying and implementing COVID-19 workplace safety measures
COVID-19 workplace safety measurements: hyperlinks to government guides
There is no ‘one size fits all’ plan for how you should control and minimise risk in your workplace. It depends on multiple factors, not the least of which is the physical environment in which your business operates, the nature of the work being carried out, and the employees themselves. Government guidance will therefore need to be applied in the unique context of your risk assessment findings, and with reasonable judgment.
Maintaining 2 metre distancing (where possible), reinforcing regular cleaning, providing widely available hand washing and sanitising facilities, and managing transmission risk all form the heart of the recently published government guidance, and will impact office layout, staffing and office protocols and procedures. A series of 8 guides provides detailed information on how to provide and create safe working areas and practices across a range of work environments:
If your business operates more than one type of workplace (for example, an office, a warehouse and a fleet of vehicles) you may need to refer to more than one of the guides, as social distancing measures may vary from one to another, and each environment will pose different risks.
Offices & contact centres: a summary of the key safety measures
We recommend that you read the relevant guides in full, as they apply to your organisation and in the context of your risk assessment; however, where you have identified a need to open up your premises to staff and visitors, it is worth highlighting some of the key measures (many of which are suffixed in the guides with ‘where possible’) as they relate to office and contact centre environments:
- Carry out a deep clean of the premises prior to re-opening
- Regular, thorough cleaning between shifts, and frequent cleaning and disinfecting of all hardware and communal touchpoints such as door handles
- Exchange hand driers for paper towels, and ensure adequate supplies of soap in washrooms
- Set clear use and cleaning guidance for toilets
- Reinforce regular hand washing (on arrival and throughout the day), and position hand sanitisers alongside any shared facilities (e.g. lifts) or equipment (e.g. photocopy stations)
- Where possible, eliminate the use of touch points such as keypads, turnstiles etc. Where not possible, ensure provision of hand sanitisation at these locations
- Where possible maintain 2 metre distancing by ensuring workstations are sufficiently spaced and waiting/meeting areas are suitably zoned off with signage and floor tape to ensure distancing.
- In offices with restricted space for distanced desk layout, use barriers or screens between desks, or ensure workers are back to back or side to side working, rather than face to face, in a well-ventilated area
- In any situation where 2 metre distancing is not possible, you should consider whether the activity is essential for the business, and keep the activity time involved as short as possible
- Eliminate or avoid the use of hot-desking (invoke a clear desk policy, removal of all waste items, and thorough sanitisation of the area if hot-desking cannot be avoided)
- Make use of socially distanced means of communication (video conferencing, phones, radios) in favour of face-to-face meetings
- Stagger arrival, departure and break times across your team to minimise overcrowding
- Consider splitting your workforce into defined cohorts or teams operating on alternate shifts or working together onsite in project groups when necessary (this may require consultation with affected employees if it changes the agreed contractual arrangements. Contact our HR team for guidance if in doubt
- Create one-way flow in corridors and limit the headcount capacity of lifts
- Visibly zone off communal areas such as kitchens, and/or close them off completely.
- Encourage staff to bring their own food in rather than use canteens or exit the building for refreshment. Restrict on site food provision to takeaway only
- Minimise deliveries – order larger quantities, with less frequency
- Use barriers or screens to protect those in public facing roles (e.g. receptionists)
- Limit visitors to the premises, preferably by appointment only, and keep a record of all visitors
- Eliminate all but essential work-related travel (e.g. client visits, movement between company premises)
- The provision and use of PPE is not required in most workplace environments where this would not normally be necessary
- If you are required to provide PPE based on government guidance, the cost of this must fall to the employer, not the employee
- Any staff issued with PPE should be sufficiently trained and briefed on correct usage; a poorly fitted mask, for example, will prove ineffective for its intended purpose. The HSE provide guidance materials to support this training.
Implementing workplace safety measures
Adapting your premises and working practices to comply with the COVID-19 safety measures is a Herculean task. For larger employers there will be the complexities of scale. Smaller businesses will face different challenges such as limited space for implementing social distancing.
Flexible and agile working has never been put to a greater test. On the positive side, many employers and employees alike have discovered that a lot more can be delivered remotely and flexibly than previously imagined. But that does not detract from the complexities of what must be achieved. Any one of the above measures alone would have seemed a significant change, pre-pandemic; and yet, all at once and in a very condensed timeframe, you are revising office layouts, staffing and resourcing strategies, and operational protocols and procedures. If you hit a few stumbling blocks and have questions, you won’t be alone. For advice on the best solutions, contact our HR team.
Adopting the ‘new normal’: communicating, supporting and managing your workforce through transition
Throughout the process of assessing, identifying and responding to risks, you’ll have hopefully involved and listened to your employees. Your objective is to get back to business, and in the event that this requires the physical presence of some or all of your staff, you cannot achieve this without creating and running a safe working environment.
Communicate early – ideally before people return to the workplace – what measures you have taken and why. Where any significant contractual changes (e.g. working hours or pay) have been consulted on and agreed, this should be confirmed in writing, even if the changes are only temporary. Ensure that everyone is clear on what they are expected to do (or not to do). Bear in mind that the workplace they exited in March is, by necessity, not the same environment that they are walking back into in May. Consider some form of ‘induction’ back into the business, so that you can clearly and effectively communicate new systems, procedures and ways of working. The workplace needs to be a safe place for your employees to come back to, but it also needs to stay safe once they are there, and this will depend heavily on guidance being widely adopted and adhered to by everyone.
The psychological impact of the pandemic has been a much-reported concern. Even individuals with no previous mental health or anxiety issues may be struggling. The impact of the past few months has been unequal, and not just based on age, gender and ethnicity; there is also the inequality brought about between those with or without caring responsibilities, furloughed or not furloughed, clinically vulnerable or ‘worried well’. Each of these scenarios, and many more, comes with very valid stress and anxiety triggers. Some may be struggling with financial worries if their household income has been affected; others, very sadly, have had to deal with bereavement in the most difficult of circumstances. People’s perceptions regarding what is safe and what constitutes risk may well also have shifted, and for some, the return to the workplace (getting there, being there, or both) may be a cause of anxiety itself. It is crucial that you foster a workplace culture that enables people to discuss their concerns should they wish to; support and train line managers to spot the signs of stress or anxiety and handle sensitive discussions. Where anxieties relate to the workplace setting or working arrangements, you should ensure that these are listened to and responded to in a supportive, reasonable and flexible manner (refer to our HR team for specific advice if you are unsure); in all other matters, provide a listening ear, and you may consider pointing staff towards professional helplines, counselling, or resources from organisations such as Mental Health UK, Mind or Carers UK and Carers Trust.
It is vital that you continually adapt your safety procedures in line with ongoing guidance from the government. Restrictions may ease and tighten based on the control or spread of the virus at local and national levels. Compliance from your workforce is imperative; safety measures do not protect anyone if they are not adopted. Be prepared to have firm conversations if you become aware that safety procedures and protocols are not being observed; monitoring compliance with safety measures forms part of your duty of care as much as defining the measures in the first place. In cases of flagrant or repeated breaches of safety procedures, you may need to resort to disciplinary action, however we would strongly advise that you contact our HR team for guidance before taking any steps in this regard.
Take an agile approach to evolving working practices
The way out of lockdown is considerably more complex than the way in, and it will be led by the path of the virus. Guidance will change, and accordingly employers will need to take an agile approach in how they continually adapt and evolve their working practices. We will keep a close eye on developments and bring them to you in one place so that you can focus on bringing your business back on track. Our HR team are here to partner with you as you adapt to a new normal. For advice and support that is tailored to your organisation’s specific needs, get in touch and we will be happy to help.
Business Clan have provided an invaluable source of HR advice for all members of our Business Improvement District during the COVID-19 crisis, providing them with regular, crucial and timely support in interpreting and implementing government guidance surrounding furlough arrangements.
– Nicola Grant, Positively Putney Bid
Author: Naomi Scoffham, HR consultant
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