On Thursday the Prime Minister confirmed that all five tests have been met so we can now adjust the lockdown, with nursery, reception, year 1 and year 6 returning on 1 June and years 10 and 12 able to return for some face to face contact from 15 June. Schools are dealing with this on a case by case basis but all are additionally considering how to safely return employees to the workplace.
DfE, Public Health England and the NHS have all issued guidance to support in this process. A link to the DfE guidance can be accessed here.
Whilst health and safety will always be the primary consideration, there will also be practical challenges to consider, including how to balance the needs of those employees with health conditions, or who live with someone who is clinically vulnerable or those with caring responsibilities; supporting employees who rely on public transport to get to and from work and instilling confidence in employees who feel frightened about returning to the workplace.
To help with this, we have set out below the five key questions we consider employers should be asking themselves when planning the physical return to work and an explanation of the legal issues that underpin them.
Question 1: Can your employees continue to work from home?
Given all the risks and practical issues that arise in relation to the physical return to work, if employees can carry out their roles effectively from home the safest approach is for them to continue to do so. This accords with the government’s “Working Safely During COVID-19” guidance notes which state: “businesses and workplaces should make every reasonable effort to enable working from home as a first option”.
Of course, this is not going to be possible in many cases within schools and against that backdrop, it will be important from an employee relations perspective for employers to communicate with their workforces and their trade unions about this. If there are some aspects of a role that can be carried out from home, but others that cannot, being transparent about this and considering partial physical returns to work is likely to help.
Employees who will be most likely impacted by a physical return to work are those with underlying health conditions and those with caring responsibilities, which are still statistically most likely to be women. Accordingly, the Equality Act 2010 (EqA) is likely to come into play. Being clear about the reasons that a physical return to work is necessary should enable employers to establish a legitimate aim, which is the first building block in a defence to the most likely discrimination claims that would arise in these circumstances.
Question 2: Have you ensured, so far as is reasonably practicable, the health, safety and welfare at work of your employees?
The starting point for employers is the statutory duty under the Health & Safety at Work Act 1974 (HSWA). Section 2(1) HSWA states: “It shall be the duty of every employer to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all his employees.”
This is supplemented by the government guidance referred to above but it is important to remember that such guidance does not trump legal obligations and employers each need to assess the risks facing employees in their own organisations and set up and implement a safe system of work. We have prepared a more detailed note on the health and safety legal considerations which can be accessed here.
The HSE has also produced a toolkit to help employers manage the risks and to work safely during COVID-19 which can be accessed here. The DfE specific guidance for schools can be accessed here and here (as well as additional guidance issued for primary schools).
As always, employers also need to regularly review and manage their plans. It is not enough just to give an order and expect it to be followed or to put something in place and not expect circumstances to change. The employer must also continually review and police the measures and ensure that policies are followed.
Question 3: Have you engaged your employees and consulted with them and their unions about health and safety?
The normal duties of consultation on health and safety matters still apply during the pandemic and are reinforced in the government’s “Working Safely During COVID-19” guidance notes. At section 5 of its guidance, DfE stresses the need to communicate plans for the wider opening of the setting with staff, ensuring they are aware of and understand all new measures to reduce the transmission of coronavirus and their roles and responsibilities. It suggests not only building in time for staff to review processes and procedures and to ask questions and raise any concerns in advance but also arranging regular opportunities to get feedback from staff on the new arrangements.
Section 2(6) HSWA states: “It shall be the duty of every employer to consult any such representatives with a view to the making and maintenance of arrangements which will enable him and his employees to co-operate effectively in promoting and developing measures to ensure the health and safety at work of the employees, and in checking the effectiveness of such measures.”
Under the HSWA, the representatives may be appointed by trade unions as safety representatives from among the employees or may be employee appointed representatives. Therefore, where you recognise one or more trade unions in any part of your organisation, then the trade union may appoint health and safety representatives. This will usually be agreed as part of the recognition agreement or with the assistance of ACAS. This is most likely the route you are already following.
If there are employees who are not represented by trade union health and safety representatives, then a different scheme applies. In this situation, you can either elect employee representatives or consult directly with the employees themselves. How feasible this will be is likely to depend on the size and make up of your workforce.
The key to what must be consulted about is in the HSWA. Trade union representatives have duties under the HSWA and the Safety Representatives and Safety Committees Regulations 1977 also apply. Regulation 4(1) requires representatives to investigate potential hazards and dangerous occurrences in the workplace and any complaints raised by an employee. Non-union representatives must be consulted in accordance with The Health and Safety (Consultation with Employees) Regulations 1996. Particularly relevant to COVID-19, Regulation 4 requires that consultation is undertaken about:
- The introduction of any measure at the workplace which may substantially affect the health and safety of those employees.
- The planning and organisation of any health and safety training you are required to provide to those employees by or under the relevant statutory provisions.
- The health and safety consequences for those employees of the introduction (including the planning thereof) of new technologies into the workplace.
Regulation 5 requires employers to provide relevant information that is necessary to enable representatives to participate fully and effectively in consultation.
Given the above, employers will now be under a duty to consult with representatives or, in their absence, directly with employees about how to ensure the health and safety of employees as they return to work. Whilst this may seem cumbersome, we consider that there will be benefits to consultation beyond legal compliance. In particular, where employees are frightened about returning to work, engaging with the workforce about health and safety gives employees a voice and should mean that concerns are flushed out and worked through together at an early stage.
Question 4: What information will you need from employees to assess the risks?
In section 3 of its guidance and in its guidance to primary schools DfE suggests an audit to determine the availability of staff to work in the setting.
In order to properly assess and manage the risks of a physical return to work, employers will need to understand whether their employees have any underlying health conditions which mean they are clinically vulnerable, and an assessment will need to be undertaken as to whether they can return to work, or whether they are extremely clinically vulnerable, meaning they should not be returning to work. We have found the NHS guidance on vulnerable and extremely clinically vulnerable people extremely helpful, which can be found here and again, DfE specific guidance here
Both clinically vulnerable and extremely clinically vulnerable employees are likely to be disabled persons under the EqA in most cases, meaning that employers will be under a duty to make reasonable adjustments for them, as well as ensuring their health and safety at work.
From a workforce planning perspective, it is also likely to be helpful to ask employees whether there are any other matters they would like to tell you about that may affect their ability to return to the workplace, such as caring responsibilities or if they live with a shielded or clinically vulnerable person.
When requesting such information from employees, employers should be clear about their obligations under the Data Protection Act 2018. This includes limiting the request for information to the matters employers actually need to know about, considering what they will do with this data and how long it will be retained. This should link in with the organisation’s employee privacy notice.
Question 5: What should you consider if an employee refuses to return to work?
There is no one size fits all approach to this. In the first instance, we would recommend speaking to the employee concerned to understand their reason for the refusal to return to work. We have set out the most common scenarios below.
If an employee refuses because they reasonably believe they will be in serious and imminent danger by returning to their place of work, they are likely to benefit from the protection under section 44 of the Employment Rights Act 1996 (ERA) which gives them the right not to be subjected to any detriment (e.g. disciplinary action) on the ground that they have refused to return to work or taken appropriate steps to protect themselves or other persons.
You would also need to consider the potential implications for entitlements to normal pay including under the Green and Burgundy Books and in particular, for absences due to infectious diseases (which would include COVID-19).
Similarly, it will be an automatic unfair dismissal under section 100 of the ERA if they are dismissed (including constructively) for these reasons. In a pandemic situation, it is likely to be difficult to prove there was no serious or imminent danger, so focusing on the actions taken to protect their health, safety and wellbeing and trying to address any concerns is likely to be the next step.
If an employee refuses to return to work because they have a disability that places them at greater risk or otherwise affects their ability to return to work, the employer will be under a duty to make reasonable adjustments to overcome the provision, criterion or practice that places them at a substantial disadvantage.
Depending on the circumstances, the employee could also claim discrimination arising from disability or indirect disability discrimination. The key issue here will be for employers to show that they implemented all reasonable adjustments and that the actions taken in respect of the return to work were proportionate and in pursuit of a legitimate aim.
If an employee refuses to return to work because they have caring responsibilities and they are a woman, they could claim indirect disability discrimination on the basis that the physical return to work places them, and other women, at a particular disadvantage compared to those who do not share that protected characteristic. Employers would again have to show that the actions taken in respect of the return to work were proportionate and in pursuit of a legitimate aim.
Finally, an employee may refuse to return to work because someone in their household is clinically vulnerable or extremely clinically vulnerable and they are therefore shielding in line with government guidance to protect them. In these circumstances, employers should be mindful of associative discrimination risks.
The above issues will need carefully balancing. However, if you have established that a physical return to work is genuinely necessary, taken all reasonable steps to provide a safe place of work, engaged your employees in this process and taken steps to address employees’ concerns, particularly where they have protected characteristics under the EqA, then you will have put the building blocks in place to address the above concerns from employees.
The key to managing all of the above scenarios will be explaining why you believe it is necessary and safe for employees to return to work and then working with the employees to seek to address their specific concerns insofar as possible, for example adjusting their role or working arrangements so they are social distancing in the workplace, altering their hours of work to assist with travel or childcare commitments, etc.
Where it is not possible to allay their concerns or to reach a compromise, the more you have offered, the more likely it is that you would be able to show that you had not failed in your duty to make reasonable adjustments (if applicable) and/or that you had acted proportionately and/or that the employee’s view that they are in serious or imminent danger is not reasonable. Nevertheless, given the potential risks involved, we would recommend taking specific legal advice on the particular circumstances as they will be highly fact specific.
This note contains general information only and does not constitute legal or other professional advice.