The impact on businesses and employers of the Prime Minister’s latest announcement
On Sunday 10 May, the Prime Minister announced three steps to get the economy up and running:
- Step 1 – Individuals can go to work if they can’t work from home but should avoid public transport.
- Step 2 – Phased re-opening of schools and shops from 1 June 2020.
- Step 3 – By 1 July 2020 some hospitality businesses may re-open.
Further to my earlier post, it is crucial for businesses to consider health and safety obligations to their employees. With the requirements to maintain social distancing and to protect the health and safety of employees, employers will now need to start making plans to open-up workplaces, over the next few months. The requirement to ensure the health and safety of employees is not new and is set out in the Health and Safety at Work Act 1974. In addition, there is an implied duty included in all contracts of employment to ensure that employers provide a safe workplace.
Health and Safety Issues
An effective risk assessment is a key step to ensuring that the environment in which employees return to work is safe. Any risk assessment will need to be documented and kept under review. Employers will need to identify the risks associated with employees working in the building/office during the pandemic and identify ways in which to minimise those risks. The duty is to do everything that is “reasonably practicable” to manage the risks, and therefore it is important to follow government guidance. We will provide further advice once these have been issued but in the meantime, some measures that businesses can think about include:
- Deep cleaning the building/office, ensuring regular cleaning of equipment
- Ensuring the availability of hand sanitisers
- Temperature check individuals that enter in the building
- Re-organise the layout of workstations to ensure social distancing and avoid hot desking
- Reduce the number of employees entering into the building and therefore stagger start times or alternate the days that individuals come to work. This will also alleviate the pressure on public transport
- Provide protective screens for receptionists
- Close canteens.
It is also important that employers consider the impact on managing the mental health and well-being of employees.
Data Protection Considerations
Will the use of temperature checks breach the employer’s obligations under the General Data Protection Regulations (GDPR) and the Data Protection Act 2018 (DPA)? A key consideration for employers is to effectively monitor and prevent the spread of the virus amongst their workforce whilst maintaining their obligations under GDPR. The key issue for employers is whether they have a lawful basis to process personal data. Employers can rely on legitimate interests, namely the managing of business continuity and the health and safety of employees. In addition, employers can also rely on their duty to comply with a legal obligation namely the Health and Safety at Work Act 1974. It is important that employers limit the disclosure of such information internally and only keep it for a limited period of time. Employers should also review and if appropriate amend privacy statements.
Employees not willing to return to work
Employees may be uncomfortable about returning to work despite employers following Government guidance and making the necessary adjustments to the workplace and complying with their obligations under the Health and Safety legislation. What can employers do in these circumstances? This will depend on the personal circumstances of the employees.
Clinically extremely vulnerable and vulnerable people
Employees that are deemed to be clinically extremely vulnerable will have been advised by the Government that they should remain at home, and it is likely that they will be deemed to be disabled within the meaning of the Equality Act 2010. Accordingly, if employers insist that these categories of employees are required to return to work, then this could lead to claims of disability discrimination and also constructive unfair dismissal. In addition, if the employee is subsequently dismissed because they are unable to attend work, the employee could claim unfair dismissal. This is on the basis that the employee reasonably believes that the threat of coronavirus is serious and imminent in the workplace.
Similar considerations are likely to apply to those that are deemed vulnerable but not classed as clinically extremely vulnerable, and in relation to this category of employees it is prudent to undertake a risk assessment.
There will also be employees who do not fall into the above category and are reluctant to return to work, either because they are concerned about their own health and well-being or want to shield at home because they live with someone who is clinically extremely vulnerable or vulnerable. Employers should ensure that it considers the reasons why the employee is reluctant to attend work and to alleviate those concerns. If despite this the employee is still unwilling to return the employer could withhold pay or commence disciplinary proceeding because of the employee’s failure to return to work. Employers should be mindful that employees could bring claims under the Health and Safety legislation because the employee believes that the threat of coronavirus is serious and imminent (as above), and the employee does not need any qualifying service to bring such a claim.
With a limited number of children potentially returning to school on 1 June 2020, there will be employees with child care responsibilities that are unable to return to work. There are a number of options that can be discussed with these employees, which include taking some unpaid leave, using up holiday, varying terms and conditions of employment, allowing flexible working, and the right to take unpaid parental leave.
For employees who have been advised to self-isolate because:
- They have symptoms
- They do not have symptoms but live with someone who has symptoms
- Clinically Extremely Vulnerable individuals covered by the Public Health England guidance
If the above are unable to work remotely then they will be treated as sick and entitled to statutory sick pay, and potentially contractual sick pay. For others, employers should have a discussion to determine the individuals’ personal circumstances and ensure that everyone is treated consistently. Options open to employers are to pay full pay, ask employees to use holiday or agree to take unpaid leave of absence.
These are some of the initial considerations that businesses will need to consider following the government’s announcement, there will be further clarity over the coming weeks as businesses start to slowly re-open. If however you require specific advice please contact Sejal Raja on email@example.com.
This briefing is for guidance purposes only. RadcliffesLeBrasseur LLP accepts no responsibility or liability whatsoever for any action taken or not taken in relation to this note and recommends that appropriate legal advice be taken having regard to a client's own particular circumstances.