Covid-19 Conundrum Continues

As the global pandemic continues to put us in a spin, we wait with baited breath for the Government announcement this weekend; with reports that measures will be taken to start lifting lockdown measures and a u-turn on the #stayhome campaign.

Return to work

An announcement made by Transport Secretary Grant Shapps confirmed that businesses could be asked to stagger working hours to prevent crowded commutes, and a recommendation to reduce the number of people in offices and other work space to maintain social distancing measures when lockdown measures start to be relaxed.

The Government has been in close consultation with employers and trade unions regarding the safest way to ease the lockdown so people can return to work to combat the impact the lockdown has had on the economy.  It has been reported (from a leaked report) that proposals include the following:

  • Additional hygiene procedures in the workplace;
  • Physical screens where possible;
  • Use of Personal Protective Equipment (PPE) if social distancing of 2 metres is impossible;
  • Covid 19 testing for those individuals who work in close proximity with each other;
  • Ban on hot desking;
  • Cleaning guidelines;
  • Restriction of shared spaces and equipment.

Whilst the past decade saw the revolution of the co-working space, promoting collaboration and remote and flexible working,  it is looking as though the office environment may soon go through a further rapid revolution, at least temporarily, to keep employees safe when they return to the workplace.

Sunday

Boris Johnson will chair a meeting of his cabinet later today, after suggesting some lockdown rules could be eased from Monday. By law the Government must review the restrictions every three weeks, and today is the latest deadline. The PM will address the nation on Sunday evening to outline the “roadmap” for coming out of lockdown.

PM Mr Johnson confirmed “a phase approach is one which allows us to monitor the impact that those changes are having on public health” with Mr Gove reiterating that certain restrictions may well be reintroduced in the event of localised and/or second wave outbreaks.

A new normal

Businesses accept that a careful phased lifting of restrictions is the most logical and safest way to try and take steps to get back to a ‘new normal’, but have emphasised to the Government for a need of clear decisions and guidance as well as additional consideration for those at increased risk in certain sectors, such as rail staff. Businesses will need to plan how their business can continue while complying with their health and safety duties and the government’s public health guidance, failing which they will be risking claims of corporate manslaughter in the event of death due to Covid19 transmission in the workplace.

World of WFH

It is anticipated that the widespread implementation of “working from home” during the lockdown may well even continue when measures are lifted, as if it has worked well and productivity has been maintained there does not appear to be any reason why this mode of working could not continue to ensure the health and safety of staff.  Businesses are advised to start a review process to analyse which changes that were put into place worked, and where further changes to support a new way of working may be necessary.

The Institute for Fiscal Studies (IFS)  sees the opportunity to innovate, recover fractured working lives and improve the workplace for many of the UK’s workers. The IFS report calls on the Government to incentivise working from home possibly through subsidies and  promote changed commuting patterns.

Problems on the horizon

Trade unions have identified a number of issues such as the current Government guidance being non-binding in nature and merely repeating the phrase “employers should consider” in relation to essential actions such as:

  • Physical distancing
  • Handwashing facilities

This discretion has been a common theme in the Government guidance which has been released throughout the pandemic and has been widely criticised by the unions who lobby for binding rules to be put into place. Mandatory rules would call employers to account by requiring risk assessments and action plans to be put into place before any lockdown is lifted prematurely with potential devastating effects. 

Clear guidance setting out minimum standards that employers must meet in order to protect public safety and a method of enforcement are considered necessary to ensure that there is adequate prevention of a second wave of the outbreak.

There concerns that “rogue employers” would take advantage of weak guidelines unless the Government significantly strengthens its plans, as safe working will not and cannot be otherwise guaranteed.

What should employers be mindful of in addition to government recommendations as detailed above if lockdown measures are relaxed?

Refusing to work

In these unprecedented circumstances, people might be justified in refusing to go into work even when lockdown measures are relaxed, they may be worried about catching the virus, have care responsibilities for someone who is vulnerable or have children who are still home from school.

Employers forcing people to return to work when they could be put in danger, may well be breaching their duty of care. In situations where a member of staff does refuse to come in, it is important to consider their specific circumstances before making any decision in how to respond to their actions.

Furlough

Employers who are using the Government Coronavirus Job Retention Scheme (CJRS) need to be mindful that the scheme currently ends on 30 June 2020 and therefore they need to start planning what happens next.

Whilst the Government says the spending has been good value for money, the chancellor has said that it is not sustainable. Reports suggest that the scheme may be pulled but the Treasury has clarified that there will be no "cliff edge" but whilst stating that employers should not become dependent on the scheme and should expect to get their workforces back working and earning, as safe social distancing arrangements are agreed.

Options are currently being discussed on how to phase the CJRS it out, with suggestions that the amount  could well be reduced from 80%, or a change to a sectoral application which will be in line with any lifting of lockdown measures for certain sectors or industries. As soon as further information is available, we will provide you with an update.

ACAS Guidance

New guidance from ACAS recommends that employers avoid starting or continuing disciplinary or grievance processes whilst coronavirus disrupts ‘normal’ working practices. The guidance says: “Going through a disciplinary or grievance procedure can be stressful in normal times, and employees might be facing other stressful circumstances at this time. Employers should give careful consideration to the health and wellbeing of employees when deciding whether and how to proceed at this time.”

This places employers in a difficult position as they will be reluctant to advance any existing process or initiate a new process in fear of repercussions. Managing people has become that bit harder.

There is no restriction in proceeding with action however  employers need to consider whether their procedures for handling any complaint or initiating disciplinary action can be followed fairly.

The guidance also clarifies that furloughed staff are permitted to take part in a disciplinary investigation or hearing if they are under investigation themselves; have raised a grievance; are chairing the hearing; are taking notes at a hearing or investigation interview; are being interviewed or are a witness; or are accompanying a colleague at a hearing. They have to agree to do so voluntarily and hearings and interviews must only take place in line with Public Health England guidance.

For those who are still going into the workplace, such as key workers; which covers a number of sectors, physical hearings must be held in accordance with social distancing requirements whilst ensuring adequate privacy.

In summary if staff are working from home or on furlough, employers should think about the circumstances of the case and whether it is really urgent to proceed at this time.

If employers decide to proceed and use video software / zoom to conduct interviews, everyone involved needs to have access to the technology and it is essential to make any reasonable adjustments necessary for individuals with disabilities.

One thing is for certain, there will be no such thing as normal any more.

Please note this article is written for guidance purposes only and does not constitute legal advice.

For further advice on navigating through the minefield that is Covid19 and employment related issues, please contact Kaajal Nathwani on 020 8 363 4444 or by email on This email address is being protected from spambots. You need JavaScript enabled to view it..

Please note that our briefings are for informational purposes only, and do not constitute legal advice.

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