Out-Law Guide | 27 May 2020 | 4:09 pm | 4 min. read
Many UK businesses have had to take steps to either limit or entirely reduce the number of employees in their premises during the lockdown period through a variety of means, including furloughing or asking staff to work from home.
The UK has not yet indicated that it intends to lift the lockdown, so employers should recognise that any plans may need to be adapted at short notice given the changing landscape.
Where employees have been furloughed, employers may wish to consider whether it is appropriate to operate a phased return. This may be appropriate because it is necessary to reduce the numbers of people at the workplace to facilitate social distancing, or because the workload is likely to ramp up over time rather than immediately returning to pre-pandemic levels.
Dr Anne Sammon
Any selection exercise that is required to identify which employees will return from furlough must be fair.
Any selection exercise that is required to identify which employees will return from furlough must be fair. Employers will also need to consider how they will deal with vulnerable and 'shielding' workers, taking account of the risk of age and disability discrimination and, in particular, the duty to make reasonable adjustments. They will also need to consider how they will deal with those with caring responsibilities, taking account of any possible sex discrimination issues.
Similarly, where employers are selecting certain employees to return to the workplace rather than requiring everyone to do so at the same time, they must ensure that employees are selected fairly, taking account of vulnerable workers and those with caring responsibilities.
Given the inherent risks associated with these selection exercises, employers will want to ensure that those who are making these decisions are protected by any directors' and officers' (D&O) insurance held by the business.
Now that HMRC has clarified that employees can take annual leave during furlough without affecting payments from the government under the Coronavirus Job Retention Scheme, employers may wish to use leave periods effectively to ensure a smooth return to capacity.
Provisions in the contract or in the Working Time Regulations can assist, but care should be taken to adhere to the required notice provisions for leave and any other contractual terms.
It is not yet clear whether employers can mandate the taking of leave during furlough, as opposed to an employee opting to take leave. Advice should be taken on this issue.
Businesses requiring their employees to work from their usual workplaces will need to ensure that they have conducted appropriate health and safety risk assessments to identify and manage risks appropriately.
Given that social distancing is likely to continue to apply, some employers may need to consider the use of shift working and other atypical working patterns to ensure that the number of people on their premises allows for social distancing to occur. When deciding whether this is an appropriate strategy, employers should bear in mind that their employees may have contractually agreed working hours and that changes to these may require employee agreement.
See our Out-Law guide: Coronavirus: operational UK health and safety.
Employers may be considering more invasive health monitoring - such as enforced temperature checking and health questionnaires - as part of their health and safety risk assessment. They may also be asking more detailed questions about those with underlying health conditions who are especially vulnerable and may need additional protection. Employers may also obtain health information about third parties, such as family members, and they may be sharing the identity of those employees who have contracted the virus and may have exposed others to risk.
Employers will need to consider whether any new health monitoring practices are "reasonably necessary" to comply with a legal obligation, such as health and safety duties. It is likely that a data protection impact assessment and an updated privacy notice will be required. Employers will need to consider the purpose of the data collection; the lawful processing grounds; how they will ensure data accuracy; data minimisation; data retention and data security; and how they will satisfy the transparency principle. They will also need to consider the consequences for an employee if they refuse an enforced test or if it reveals an adverse result.
The Information Commissioner's Office (ICO) has just updated its guidance on workplace testing.
Some businesses will unfortunately need to make redundancies as a result of a decline in workload.
Those businesses may wish to consider whether they commence redundancy consultation before employees start to return - for example, from furlough. The usual redundancy considerations will apply here and employers will need to bear in mind that, where there are 20 or more redundancies in a 90 day period, the collective redundancy consultation obligations will apply. These mean that, where there are 20 or more redundancies, there must be a minimum of 30 days' consultation and, where there are 100 or more redundancies, there must be a minimum of 45 days' consultation in Great Britain (90 days in Northern Ireland). Employers that do not already have trade union or employee representatives in place for this purpose will also need to factor in time for the process of electing appropriate employee representatives.
Collective consultation should be possible during any period of furlough, and we would take the view that carrying out the duties of an employee representative in these circumstances is not "work".
Employers will also need to bear in mind that, alongside the consultation process, they will also need to factor in employee notice periods and any enhanced or statutory redundancy costs.
See our Out-Law Guide: making redundancies in the UK.