Advice for employers on bringing staff back to work

15 May 2020 COVID-19

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Last updated 14th May 2020

DISCLAIMER: The materials provided here are for general information purposes and do not constitute legal or other professional advice as the landscape is changing on a daily basis. While the information is considered to be true and correct at the date of publication, changes in circumstances may impact the accuracy and validity of the information. Xact is not responsible for any errors or omissions or for any action or decision taken as a result of using the guidance. You should consult the government website for the very latest information or contact a professional adviser for legal or other advice where appropriate.

Please note, these FAQs are subject to being updated on a regular basis as the guidance and Government advice is constantly changing and therefore we do not accept any liability for the advice contained within this document and we recommend you seek specialist advice on any case you are unsure of.

Each devolved country has its own guidance in relation to lockdown measures and these should be considered when looking for information about your business.  The Government has released guidance for individual industries about return to work and measures that should be adopted. Please ensure that this is reviewed and all recommended measures are put in place.

1: What are the main principles the company need to consider before the staff return to work?

All employers have a duty to provide a safe workplace and working method.  The company will need to consider what is reasonable under the current pandemic.  

There are five main principles for each industry regarding a return to work:

  • COVID-19 risk assessment
  • Take all reasonable steps to allow employees to work from home
  • Cleaning, handwashing and hygiene procedures in place
  • Ensure social distancing as far as possible
  • Take steps to manage transmission risks

2: Will there be any restrictions on vulnerable/shielding employees when returning to work?

We are unsure at this point what government advice will be in relation to staff who are shielding. If an employee is unable to come into work then this could be considered as unfit through absence or you could potentially consider furloughing. Furlough would be dependent on the scheme and any changes that the Government makes regarding this.  

If an employee is concerned about their health and safety then it would be best practice to have a discussion with them about this and consider any measures to support them, such as whether different measures are in place for them than other non-vulnerable staff members.

3: There are some aspects of our business that we may be unable to comply with social distancing, what do we do?

The company will need to consider each industry and the Government regarding health and safety provisions. If you are unable to support social distancing in the workplace, the company would need to look at any alternative methods of working, such as from home or altering staff working hours to accommodate reduced staff in the workplace.

4: What if an employee does not comply with these rules?

In the first instance you may wish to check the reason they are not complying with the measures. If staff do not comply then it should be clearly stated in your return to work guidance that failure to adhere to the policy could be considered as gross misconduct which could lead to an employees dismissal.

5: Are we able to phase return to work for the staff on furlough?

We are unclear at this stage if this would be an option or what the Government is considering in relation to reduced furlough payments etc. Employers are currently able to bring back staff from furlough, but you must keep in mind that furloughed staff should be on this for a period of three weeks.

6: When the Job Retention Scheme ends does this mean that staff need to return to work on their full contractual hours?

In essence yes, as this would be their contractual requirements. If you are looking to amend an employee’s hours of work either on a permanent or temporary basis, you would need to consider a changes of terms and condition process with them.  

Another option could be to place them on a period of lay off/short time working and the implications this may have. The company would need to consider whether you have the contractual right to place them on lay off/short time working or seek agreement for this process.

7: Can I consider restructure/redundancy while the staff are on furlough?

While staff are on furlough they are still employees with the company and you can consider a restructure/redundancy process. Depending on the number of staff involved, you will need to consider the timescales for these processes (collective consultation 90-day period).

As with any redundancy process a company should consider if there are any measures to prevent this process from being followed – can staff look at altering hours, shift patterns, other cost saving techniques/ideas?

You must follow a redundancy process as employment law still stands.  There is an argument that a suitable alternative would be placing the staff on furlough. This does not cost the business with the grant payment and there is no loss to the business, while ensuring staff continue to gain an income. This is something to consider when proposing redundancies.

8: Do I need to provide my staff with PPE?

Depending on the nature of the role you may need to consider this for the staff and whether social distancing is required. This should be noted in the risk assessment that is carried out.

9: How do I communicate with my staff?

Ensure that all communication is in a sensitive manner as this is a difficult time for all concerned. Where possible, try to ensure open communication with the staff and keep them updated on changes in the workplace and return to work provisions.  Be clear and exact on the provisions that you are putting in place to support a return to work and how you have come to these decisions.

10: What if an employee is unable to return due to schools/child care?

There is currently no right to paid leave for childcare, unless you operate a separate policy offering payment. The statutory provision is time off for the care of dependents, which is a reasonable amount of unpaid leave.

Being a parent is not a protected characteristic, however there could be an argument for indirect discrimination if an employee is unable to attend work due to childcare because schools and nurseries have closed. If the employee is unable to work due to this then the company would need to show a proportionate means of a legitimate aim in treating them differently to other staff.  

You should try to find a workable solution for both parties to reduce any claims as this is a difficult situation for everyone and the employer should try to be as reasonable as possible.  Consider a change in hours for the employee to accommodate other people in the household or allow them to continue working from home, if possible. If the furlough scheme is still available then this could be an option to offer the individual. You could consider disciplinary action for failure to attend work, however this would not be an attractive option and could lead to more issues

11: What if there have been physical or emotional concerns raised by staff?

This can be a difficult time for all staff, especially those who have been away from the workplace for some time. Try to encourage good physical and mental health for the workforce

Operate an open door policy to discuss any concerns they may have. Ensure that training is provided, where necessary, as staff may have forgotten company procedures etc.

12: What if an employee has concerns about returning to work?

Consider health and safety in the workplace and ensure this has been carried as per government guidelines.

Discuss any concerns in relation to breach of health and safety in the workplace.  Ensure clear communication on what the company is doing to assist the staff over this period. The company will need to consider each employees concerns on a case by case basis. If one person is willing to come in and work it is not reasonable to assume that everyone should attend the workplace.

There is not much case law in respect of this type of situation and it will need to be considered on a case-by-case basis as to the reason the staff member does not wish to return to work. 

If they have concerns regarding travelling to work on public transport then try to view other options for them, such as changing working hours. There is an argument that the initial journey to the workplace is the employee's responsibility and failure to make this journey could be considered as a conduct issue.  Where possible, try to be sympathetic to the employee and seek a mutually agreeable solution.

13: What would we need to consider for social distancing?

Ensure compliance with the government in relation to social distancing for your industry however points to consider could be:

  • Use of kitchen facilities 
  • Use of toilet facilities
  • Customer/clients coming into the workplace
  • Travel restrictions for employees who attend clients
  • Continue to carry business meetings over other methods
  • Offer training any new technology

14: There has been growing concerns between staff on furlough and those who have been working, what do I do?

This is a major concern for most organisations. You will need to ensure moral and engagement between the staff and try to rebuild if required. Continue to keep communication open of any challenges facing the business and you will see everyone coming together

Encourage feedback from the staff on how to increase morale and, in turn, all aspects of the business.  Give recognition to employees over this period and the support they have given the company.

If you're an employee looking for advice about returning to work, advice is available here.

Author

Natalie Hunter
Natalie Hunter
Xact Group Ltd | HR and Employment Law Consultant

Natalie comes from a varied back ground having worked as a nurse in accident and emergency before moving into corporate finance where she worked for several years before taking redundancy and retraining.  A graduate of UWS in Paisley Natalie learned her craft as an HR administrator moving up to HR and Employment Law Consultant with Xact Group Ltd. 

A problem solver, Natalie can often be heard saying "pick your battles" and "lets sit down and have an open conversation" and has the ability to see situations from both sides of the employment relationship.  These qualities make Natalie a great asset in the BIGGA/Xact partnership.

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