Employment law: How to decide which employees should return to work
As organisations start to open up their offices with social distancing measures in place an important question for HR professionals to answer is: ‘Who should we bring back first?’. Here, Paul Griffin, Partner and Head of Employment – London, and Amanda Sanders, Knowledge Of Counsel, both at Norton Rose Fulbright, share some key considerations.
As the UK starts to relax lockdown, and businesses look to reopen, more employees are returning to the workplace. Many HR professionals are working tirelessly to ensure the health and safety of workers and visitors is not put at risk with the move back to the office and it is critical that all potential issues are factored into return-to-work decision making and planning.
Here we outline some of the key issues to consider to ensure both your people and your business are not exposed to unnecessary risk:
Selecting which employees should return to work
It is likely that in the first instance your business will not require all employees in the workplace. Indeed, in many cases, the requirements for social distancing and reconfiguration of the working environment will mean that not all employees can return at the same time.
For the moment, where possible, some employees should continue to work from home, or remain on furlough under the UK Coronavirus Job Retention Scheme, but how do you select which employees are best placed to return?
If there is no business need which can be applied, the most appropriate option is to ask for volunteers. Employees will have different reasons for either wishing to return or being more hesitant. If too many employees volunteer then you will need to consider if employees are to be placed on a rota system and assigned to separate bubbles.
The government guidelines on returning to the workplace make it clear that employers should be mindful of the particular needs of different groups of workers or individuals and that they should ensure that nobody is discriminated against.
The government guidance refers to vulnerable employees including those who are clinically extremely vulnerable, with specific underlying health conditions that make them extremely vulnerable to severe illness if they contract COVID-19. These individuals have been told to isolate but, from 1 August, they will be able to return to work as long as they are able to maintain social distancing and their workplace is COVID-19 secure.
Many in this group are likely to be disabled for the purposes of the Equality Act 2010 (EqA 2010) and therefore if they are treated to any detriment or dismissed as a result of their disability an employer may find that they face potential discrimination claims. If they are disabled under the EqA 2010 then you will also need to consider the reasonable adjustments you are required to take to avoid disabled workers being put at a disadvantage.
Reasonable adjustments could include other options rather than a return to the workplace, such as working from home or placing on sick pay or a permanent health insurance scheme.
You also need to take into account the additional health and safety obligations you owe to pregnant employees. This means carrying out an additional risk assessment before allowing such an employee to return to work.
You must ensure that any steps being taken do not have an unjustifiable negative impact on some groups compared to others, for example those with caring responsibilities, who may be able to bring indirect discrimination claims. Employers must understand and take into account the particular circumstances of those with protected characteristics.
As HR professionals, you must adopt a flexible approach to keep up with the changes.
Ensuring good mental health
As well as ensuring the physical health and safety of employees, you should also bear in mind the mental wellbeing of your staff. Some employees may be feeling particularly anxious in returning to work after being in a period of isolation, while others may be suffering from issues relating to working from home where the home environment is difficult. Other employees may have concerns as to how to balance returning to work with caring responsibilities.
You should listen to your employees’ concerns and consider the mental health of employees as part of your health and safety risk assessment. In addition, any assistance or wellbeing programmes run by the business should be made available to staff.
Temperature testing employees
You may be able to offer some comfort to returning employees by carrying out temperature checks on on workers as they enter the workplace. However, you will need to bear in mind data protection and employment implications of such testing. The Information Commissioner’s Office has issued guidance on workplace testing.
From an employment perspective an employer cannot compel an employee to have their temperature checked. You will therefore need to decide what steps to take if the employee refuses. If the employee does take a test and you ask them not to attend the workplace you should be able to argue that this is a reasonable step to protect the health and safety of others.
Communication with employees
Communicating the health and safety steps you’ve taken as a business is key to putting employees’ minds at rest. Indeed you will have a duty to consult your employees on health and safety. Going further and ensuring that employees feel they can respond on any individual issues will limit any potential claims employees may have if they are treated to a detriment or dismissed as a result of refusing to return to work.
You could also ask for views on temperature testing and whether employees agree that this should be done during the consultation process. Ensuring that your employees are fully aware of the steps you’ve taken will mean they are less likely to consider there to be a serious and imminent danger to their wellbeing in returning.
How to implement the return
As mentioned you should ask for volunteers first. Any potential discrimination claims or refusal to return will be less likely if employees have volunteered to return. You should also consider what alternatives are available for those that aren’t selected to return to the workplace, whether they can be placed on furlough, on statutory sick pay or a PHI scheme or asked to take holiday or unpaid leave.
With the situation continually changing you must make sure you are up to date on the medical evidence and government guidance to support any decisions you make on who should return to work. This will mean that, as HR professionals, you must adopt a flexible approach to keep up with the changes.