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Actively encouraged

PM Boris Johnson's announcement on Sunday and further updated announcement yesterday, sets out that people who “can’t work from home” will now be “actively encouraged to go to work”.

This raises a number of questions by both employers and employees, who face the job of navigating the unwritten roadmap of the phased lifting of lockdown, and return to work.

The PM mentioned a few industries noted to be construction and manufacturing as those who could not work from home, and should be encouraged to now start an immediate return to their workplace; commonly building sites and factories.

Stay safe

Whilst the mantra “stay at home” has been dropped in favour of “stay safe”, concerns are mounting across the UK as to whether people who are in at “risk groups”, or do not feel that it is safe to return to work, will have any choice but to go back to work…. Is this really the way to ‘stay safe’?

High risk

There are approximately 1.5 million people in England who have been currently classified as high risk, and were advised by the Government on 23 March not to leave their homes for 12 weeks.  Those 12 weeks take us up to the 15 June, but based on the fact that the R levels are still not at a satisfactory level that the Government is happy to lift a lockdown completely, where does this leave the vulnerable if their workplace opens before then. Mixed messages have meant that employers and employees are confused as to their obligations and most importantly their legal rights.

ACAS

ACAS and the PM confirm that where possible, individuals who are considered at risk should continue to work from home or be furloughed under the Government Coronavirus Job Retention Scheme (CJRS). 

Furlough Extension Announced

The Chancellor promised that the scheme would not just fall off a cliff edge; and confirmed in an unexpected and unprecedented announcement today that it would be extended in part until October 2020, and moreover on the existing terms of 80% of salary up to the limit of £2,500.00 per month, stating “I’m extending the scheme because I won’t give up on the people who rely on it’.

The scheme will become much more flexible and as of August 2020 with employers expected to share some of the cost and granting more flexibility to allow employees to return to work part time. 

Reports of the demise of the scheme were exaggerated say some, especially after the Bank of England stressed the importance of the scheme to secure economic recovery.

Further details on the flexibility of the scheme are expected in the next few days.

For those that can return to work

Employers are encouraged to treat each employee individually having regard to their personal circumstances, and ensuring that they take adequate steps to implement strict social distancing measures to ensure health and safety in the workplace. For example provision of PPE equipment if deemed necessary.

Refusal to work

At present, there are fifty shades of grey, those who can technically return to work as their workplace is now open, but refuse, will not be entitled to any remuneration in the form of either salary or statutory sick pay. 

It is only at the employer’s discretion to take an individual off furlough and therefore these payments may also be extinguished. The expectation would be that the furlough scheme would be used where for example an employee is unable to return to work due to living with a vulnerable person, possibly childcare responsibilities and or concern about their own health and safety.

Sections 44 and 100 of the Employment Rights Act

Under the law, an employee is not required to work if they “hold a reasonable belief that there is a serious and imminent threat” to their health.  A breach may occur where an employer fails to follow Public Health guidelines and any guidelines issued by the Government, which are ever changing in the task to tackle COVID19.

Open dialogue

Employees are encouraged and advised to discuss possible returns to work with their employer; the PM even referred to the onus on the employee to pick up the phone to their employer and discuss the best way of moving forward.

The mantra of ‘stay safe’ being of utmost importance and overall a number one priority.

Employers are encouraged to take all practical steps to promote social distancing, and work around a way for operational needs for the foreseeable future.

Guidelines

Five key points have come out of the new “Covid 19 secure” guidelines issued by the Government, which are aimed at helping employers to get their businesses back up and running and workplaces operating as safely as possible.

The key points are summarised as follows:

1. Work from home if you can - all reasonable steps should be taken by employers to help people work from home. If employees cannot work from home, the message is clear: Staff should speak to their employer about when the workplace will open, and on what basis.

2. Risk assessments to take place - In consultation with workers or trade unions there is a clear and evidential need to establish the guidelines necessary to be put into place to secure the safety of employees and employers. If possible, employers are required to publish results of the relevant risk assessment on their website, and there is an expectation for all businesses with 50 plus employees to ensure this is complied with.

3. Two metres social distancing wherever possible by:

• • Staggering start times
  • Creating one way walk through
  • Opening more entrances and exits
  • Changing seating layouts
  • Modifying break rooms
  • Redesign work spaces

4. Managing Transmission Risk – implementing sufficient barriers in shared spaces by:

• • A change in shift patterns
  • Minimising contact between people and staff
  • Facing away from each other.
  • Implementing screen divides

5. Reinforcing Cleaning Processes - Workplaces be cleaned more frequently, with attention to detail with regards to high contact objects such as door handles, kitchens and keyboards. Provision of handwashing facilities or hand sanitisers at entry and exit points.

The Government has provided a downloadable notice which employers are required to display in their workplaces to show employees’ possible customers and other visitors to their workplace that this guidance is not only acknowledged but also has and will be followed.

This guidance is an important first step, but doesn’t provide every answer.  Employers are required to use it as a base to start trying to find a “new normal”.

If you need further advice or assistance on the phased return to work and or employee management during this difficult time please contact the head of Employment Kaajal Nathwani on 020 8363 4444 or via email on This email address is being protected from spambots. You need JavaScript enabled to view it..

This article is published for guidance purposes only. For further up to date information please see here.