Key issues that UK employers should begin considering now to minimize difficulties as they reopen or expand their operations include reintegrating staff, assessing internal policies in light of the pandemic, testing for the coronavirus (COVID-19), and more.
As the UK government considers how and when to scale back pandemic-related workplace restrictions, employers will be contemplating reopening the workplace. Although the government may encourage many workplaces to reopen, employees are unlikely to be returning to the same workplace environments they left. The coronavirus (COVID-19) pandemic will have an impact on a wide variety of issues, from how we commute to work, travel for business, and interact with co-workers to how the workplace is managed in a post-COVID-19 world.
Key points we discuss in this guide include the reopening of the workplace and reintegration of staff and issues arising therefrom (including bringing furloughed staff back to work), the potential rise of whistleblowing complaints, testing for COVID-19, and the need to assess whether internal policies continue to be fit for purpose in light of the pandemic. Businesses that proactively consider these challenges will be better placed to adjust quickly to the “new normal.”
We highlight the issues employers should be thinking about now, recognising that when and how workplaces in fact reopen will largely depend on future government requirements and guidance. While some considerations will be specific to certain employers or industries, many COVID-19 issues affect all businesses, including global employers operating across many jurisdictions. Morgan Lewis has prepared more in-depth guidance for employers on many of these topics on our COVID-19 resource page.
We await guidance from the UK government on when employers will be encouraged to reopen their workplaces. In the meantime, we expect there to be a gradual resumption of workplace activities that is both employer and industry specific. Some employers may consider adopting a split-team system by rotating certain team members or groups in or out the office. Other employers may allow or encourage employees to return to work while maintaining a flexible working-from-home policy, where some employees continue to work from home for some or all of the working week. This approach may help to manage employee concerns about returning to work and the risk of being exposed to the virus on public transport.
Special considerations may apply in respect of individuals considered by the government to be at higher risk from the virus, including older people and those with chronic conditions, and workers with children and other dependents who are likely to benefit from continued flexibility. Employee mental health conditions may also have been exacerbated during the enforced lockdown period. Employers should therefore be sensitive to employee requests and look at who can return to work on a case-by-case basis with careful consideration given to accommodating concerns. Certain other employees may be keen to return to work following the long period of enforced isolation, again emphasizing that a one-size-fits-all approach will not be appropriate. Employers should be mindful of implementing broad policies aimed at keeping everyone in a certain category at home or at work.
Before staff return to the workplace, employers should consider implementing social distancing plans and producing written policies around how such plans will be introduced and maintained. It is conceivable that having in place certain social distancing measures or a social distancing plan may be a legal requirement. Even if that is not the case, taking such steps may help to alleviate employee concerns and reduce potential employer liability.
On 7 April, the UK government published guidance on social distancing in the workplace. It is intended to advise businesses that have remained open during the lockdown, but also provides an insight into what future measures may look like. Drawing on this guidance and that implemented in other jurisdictions, the key aspects of social distancing measures and/or policy are likely to focus on the following:
It is advisable for employers to communicate with staff early on about any planned alterations to workplace practices and how any temporary changes will work in practice.
Issues may arise around enforcing the above measures. To address these, individuals may be assigned to oversee and ensure implementation of these measures and to manage training to explain these additional responsibilities. Employers should consider communicating to employees what will constitute acceptable conduct in the “new world” and what steps will be taken where staff fail to comply with instructions.
Bringing Back Furloughed Staff
The government’s Job Retention Scheme is currently expected to end on 30 June 2020. When it does, employers will have to make a decision, depending on their circumstances, as to whether employees can return to their duties or whether a restructuring of the workforce and potential redundancies are required.
If redundancies are likely, employers should begin assessing their consultation obligations sooner rather than later. In particular, employers that may need to make 20 or more employees redundant at any one establishment should be mindful of their statutory collective consultation obligations. These will require the appointment of employee representatives and a minimum of a 30- or 45-day (depending on the number of redundancies) consultation period. It may therefore be prudent to consider starting the employee representative election process in advance of the Job Retention Scheme end date.
Employers should also consider how the return of employees from furlough will be handled. While communications should take into account the particular circumstances of relevant individuals, in many cases, it will be sufficient for the employer to notify staff and inform them of its plans to reopen the workplace. It may be prudent at that point for the employer to communicate any social distancing measures it has or is planning to implement in the workplace. Further, employers may consider creating an FAQ-style document setting out guidelines on key issues, such as best practice for travelling by public transport and the approach on annual leave accrued during the furlough period.
Employers should be mindful of whistleblowing claims in the COVID-19 era. There has been considerable press coverage of workers raising concerns that their employers are placing them at serious risk, including claims that government guidance is not being observed, social distancing is not taking place, face masks are not being worn, and sanitation policies are not being followed. Such complaints may qualify as protected disclosures under the UK whistleblowing law. Amongst other things, this means that workers may be protected from being subjected to detriment or dismissal on the basis that they made the disclosure.
While employers that follow government and public health guidance will likely have an adequate defence to allegations of health and safety breaches, as there is no financial cap on compensation in whistleblowing claims, this remains an area of significant risk for employers and one they should carefully consider.
When considering if a protected disclosure has been made, any relevant policies that the employer has in place should be consulted. Most policies will have a whistleblowing procedure or an applicable general grievance procedure. Managers and HR should be appropriately trained to recognize what may amount to a protected disclosure in this context and how to respond. It may also be prudent to review the businesses’ whistleblowing policy and make sure it is accessible to staff so that issues are raised and managed within the prescribed framework.
COVID-19 Testing
In addition to social distancing plans, one key consideration for employers to ensure the health and safety of the workforce is whether to conduct COVID-19 tests on staff and third parties, and if so, what type of test to conduct (e.g., temperature, blood, saliva, or nasal swab).
Although additional government guidance on permissible testing may be forthcoming, employers intending to implement COVID-19 testing may consider what type of test they will run, who will conduct the tests, whether the test must be performed in a clinical lab or by a licensed healthcare professional, whether input from medical professionals will be required, who will be tested, how often tests will be done, and how test results will be maintained.
In the United Kingdom, obtaining employee consent is generally advised and preferable. While there is no precedent, under the Health and Safety at Work Act, employers must take reasonable steps to look after the health, safety, and welfare of UK staff. It is therefore likely to be reasonable for employers to collect certain information from employees in order to discharge this general duty (e.g., collecting any COVID-19 diagnoses). Where consent is not obtained, it may be possible to legally require staff to submit to a test, but whether such request amounts to a reasonable management instruction will be case specific and depend on a variety of factors, including prevailing health advice, the employee’s role and symptoms, and available alternatives. Tests should ideally be carried out by a third-party health company and by individuals trained on confidentiality, privacy, and health and safety issues.
Data Privacy
Information about an employee’s health, including but not limited to details of any positive test for COVID-19, is a special category of personal data under the EU General Data Protection Regulation (GDPR). Therefore, employers should be mindful that more stringent restrictions apply to the processing of such data. In this context, the public health lawful processing ground is likely to be applicable to this type of data collection. Employers must restrict the data collected to this ground and be mindful of other lawful processing requirements, including restricting access, imposing adequate security measures to keep data secure, and restricting the sharing of the personal data with third parties.
Employers should also take care to limit the collection and dissemination of personal health data to that which is strictly necessary in the circumstances. Care must, therefore, be taken in relation to the process of gathering the health data and restricting who can access it and with whom it is shared within the employer’s group or externally. If it is feasible to de-identify data to protect an individual’s identity, it would be prudent to do so. Where it is necessary to disclose the identity of an individual to best promote the safety of the working environment and public health, however, this should only be done on a strictly confidential, need-to-know basis to limit dissemination.
Another practical measure that may be taken to limit the sensitive personal data collected includes recording only whether the temperature of a tested individual is over a certain threshold, rather than noting the individual’s specific temperature.
Many businesses have been navigating uncharted waters as the effects of the COVID-19 pandemic have become apparent. Reopening the workplace may trigger a comprehensive review of policies given the collective experience gained during this time and in light of recent legislation and guidance.
In particular, employers may focus on the following policies and provisions:
In addition to whistleblowing claims, discussed above, employers may face a spike in employee misconduct, grievances, and litigation as employees adapt to their new workplaces following the long period of isolation. For example, employers may see an increase in sexual harassment issues as employees return to the workplace, and other harassment complaints where employees fail to respect personal space or comply with safety guidelines.
Additionally, the sudden impact of the virus may have forced employers to make quick and important decisions to protect their businesses while assuming employment law risks. This may result in an increase in claims relating to unlawful deduction of wages, unfair dismissal, and/or breach of contract, among others.
The impact on workplace culture is likely to depend on how an employer has reacted to the crisis, the measures it has put in place, and how it has communicated these measures to its staff. Where employees feel there has been a clear communication process and they have been supported by the business (including where steps were taken to care for their health and well-being), the employer may benefit from motivated workers and a positive effect on culture in the long term.
For many businesses, COVID-19 has sped up the adjustment to new ways of working. Employers may consider if the increase in flexible, remote, and agile working has been successful in the context of their organizations. Relevant factors include how many people can continue to work from home while the business continues to operate efficiently, and the impact on management, communication, and staffing where certain operations remain onsite while other employees (or entire teams) continue to work remotely. Employers may face an increased number of flexible working requests even in the long term, not least if schools remain closed for an extended period, and should ensure that HR teams are prepared to respond.
Where increased flexible working is made available, this would likely have a positive impact on gender equality given that the lack of flexible work arrangements is often cited as one of the most significant sources of the gender pay gap. Employers should be aware that refusing such requests going forward will need to be carefully justified in circumstances where the employee has been productive and successful while working remotely during the pandemic.
We expect the UK government to issue further guidance as it begins to lift prior workplace restrictions and issues new restrictions regarding the reopening of workplaces. This guide reflects our current thinking on key issues that employers should begin considering now to minimize difficulties as they reopen or expand current operations.
For our clients, we have formed a multidisciplinary Coronavirus COVID-19 Task Force to help guide you through the broad scope of legal issues brought on by this public health challenge. We also have launched a resource page to help keep you on top of developments as they unfold. If you would like to receive a daily digest of all new updates to the page, please subscribe now to receive our COVID-19 alerts.
If you have any questions or would like more information on the issues discussed in this LawFlash, please contact any of the following Morgan Lewis lawyers:
London
Matthew Howse
Louise Skinner