What has changed?
From the start of the lockdown to control the spread of coronavirus, the Government’s guidance to employers and workers alike has been clear: if employees can possibly work from home, they should do so. While this left some room for interpretation, the default position was clear.
On 17 July, in conjunction with the publication of new plans for further re-opening the economy, Boris Johnson announced a shift of emphasis. From 1 August employers will have the discretion to decide how their employees can continue to work safely, where they had previously been able to work from home. Either they can continue their current arrangements for these workers, or they can bring them back to work if their workplace can be made “Covid-secure”.
In conjunction with this shift in emphasis, Mr Johnson has made it clear that everyone can now use public transport, although they should consider alternative means of transport where available.
Where does this leave employers?
Employers have, up to now, concentrated their efforts on making the work environment safe for workers who cannot work from home – typically people who do not work in an office environment, or who cannot work from home for other reasons. Now they have been given a signal that working in a safe office environment is an acceptable alternative to working from home, even if this involves the use of public transport.
While there will normally be a considerable reduction in office capacity once the appropriate health and safety measures have been put in place, this change gives employers an opportunity to bring back some additional workers. This is likely to be particularly welcome for those whose home circumstances make it difficult, but not impossible, to work from home. It may also present an opportunity to address some of the management and logistical difficulties that have built up during lock-down. However, there is no obligation to change anything, and many employers have announced that they are in no hurry to bring additional staff back to the workplace.
What are the factors to consider?
The first task will be to revisit the risk assessments conducted earlier in the epidemic, to assess the maximum number of workers than can be accommodated safely in the workplace, and consider any further changes required to minimise the risk of transmission. As with previous risk assessments, appropriate consultation with workplace health and safety representatives will be required, as well as engaging appropriately with the workforce as a whole.
Revised guidance for a range of workplace environments published on 23 July explains that if employers wish to increase the numbers attending the workplace, they will need to consult their employees to establish who can come into the workplace safely, taking the following factors into account:
- Their use of public transport
- Their childcare responsibilities
- Any protected characteristics
- Other individual circumstances (particularly in relation to those at higher risk of serious illness if infected with the coronavirus)
It may well be that some employees are unwilling or unable to return to work, and employers will need to respond cautiously and sensitively to minimise the risk of claims or damaging workplace relations. It is also important to appreciate that pregnant women, as well as being in a high risk category, are entitled to additional protection under health and safety legislation, including in some circumstances medical suspension on full pay.
Planning a return to work
Many employers will wish to run a return to work programme on a pilot or phased basis, to allow for appropriate adjustments in the light of experience. As well as social distancing and other mitigation measures within the workplace itself, it will probably be necessary to consider phasing start and finish times, restricting the use of common areas (such as lobbies, staircases, canteens and toilets), enhanced cleaning arrangements and the creation of workplace “bubbles”.
Any plans will need to be flexible enough to accommodate the possibility of workplace outbreaks or further changes to Government guidance, which recent experience shows can happen at short notice. The Government has always made it clear that plans for re-opening the economy are conditional on the transmission rate of the virus remaining low, and that relaxations of lock-down restrictions can swiftly be reversed on a local or national level.