COVID-19: Returning to the workplace and the extension of furlough

Introduction

Hello, my name’s Paul Griffin and I’m Head of the Norton Rose Fulbright Employment Team in London. Last week, the Government set out its road map for moving out of lock down, including how to get people back to the workplace. The following day, the chancellor announced the extension of the Job Retention Scheme until October. In this video I’m going to look at issues relating to the return to the workplace, and also the extension of the Job Retention Scheme and what it means for employers and employees.

Transitioning from lockdown

On 11 May, the Government published its recovery strategy to transition England from lockdown. One of the key areas in that plan is how to get people back to the workplace safely. This was followed by eight workplace guides covering workplace settings which are allowed to be open. Some employers will operate more than one type of workplace, for example, you may have a factory, but also a head office, and so an employer will need to use one or more of the guides to devise safe working arrangements.

The guidance sets out five key points which should be implemented by employers as soon as it is practical. 

First, employees should still continue to work from home if possible. The advice still stands that all reasonable steps should be taken by employers to help people to work from home. However, if the employee cannot work from home, and the workplace has not been told to remain closed, then the employee should go to work.

The second key point is that the employer should carry out a COVID-19 risk assessment. Under existing health and safety legislation and equality legislation, employers should be carrying carry out risk assessments to ensure that they provide a safe working system and place of work for employees.  The guidance sets out that employers should carry out a COVID-19 risk assessment in consultation with workers or trade unions to cover the specific risks of the pandemic. The extent of the risk assessment will depend on the sector and the workplace environment, but could involve walking through the workplace and identifying the risks that arise and then taking the steps to remove or mitigate those risks. An additional requirement is that all businesses with over 50 employees will be expected to publish the results of the risk assessments on their website.

The next key area is to ensure that those who attend the workplace comply with social distancing. This means that employers may need to reconfigure the workplace to ensure that a two metre distance is maintained between employees. Social distancing will also need to be maintained while the workforce are arriving and leaving work and also while moving around the workplace. This may require staggering arrival hours and reviewing the use of lifts and stair cases. Social distancing will also impact on other parts of the building, for example you may need to avoid opening staff canteens. 

Where the 2 metre social distancing can’t be maintained employers need to manage the transmission risk. This could mean providing protective screening and equipment, changing workplace shift patterns, dividing the workforce into teams, or using back-to-back or side-to-side working to minimise the risk. 

Finally, the guidance reiterates reinforcing cleaning processes in the workplace. This can include additional cleaning regimes as well as providing handwashing facilities or hand sanitisers at entry and exit points.

You should also note that the guidance provides a form of notice which employers should display in their workplace to show their employees and customers that they have followed the guidance.

It’s important for employers to look at the guides – they are available on the government website.

The employment law implications of making such changes

There are clearly employment law implications in the steps that employers need to make to ensure a safe place of work. In my next video I will look at some of these employment law issues in more detail. These include how to change an employee’s terms and conditions of employment where new hours of work or shift patterns are required and how to select employees to return to the workplace avoiding any discriminatory selection criteria. The guidance is clear that employers should not discriminate and an employer should therefore understand and take into account the particular circumstances of those with protected characteristics. 

Another issue will be what employers can do in relation to staff who don’t return to work. Currently employers can furlough those staff under the job retention scheme, but employers will need to be thinking about reducing hours, or requesting employees take annual leave, unpaid leave, or encouraging employees to take any available parental leave.   

Also troubling employers is what if an employee refuses to return to work. An employer must be mindful of employee’s concerns and also whether they fall within one of the vulnerable categories.  However, if an employee is not specifically at risk or shielding someone at risk, employers need to consider how they will respond to such a refusal and limit any potential claims.

Extension of the Job Retention Scheme

I also wanted to mention quickly the Chancellors announcement regarding the extension of the Job Retention Scheme. As we know, a significant number of jobs – about 7.5 million – have been furloughed under the Scheme. The Scheme was due to end on 30 June 2020, but, on 12 May, the Chancellor announced that it would remain open until the end of October. This means that it will run in its current form until the end of July. It will then remain in place for all sectors until the end of October.  However, from August there will be greater flexibility in the Scheme, for example by allowing employers to bring back employees part-time. Currently employees who are furloughed are prevented from carrying out any work for their employer, but this will change to ease the return to the workplace.  Also, from August employers will be asked to “start sharing the cost” of the Scheme meaning that they will be asked to pay a percentage towards the salaries of their furloughed staff. The employer payments will substitute the contribution the government is currently making, meaning that employees will continue to receive at least 80 per cent of their wages subject to the £2,500 per month cap.  There are many questions that remain to be answered with regard to these changes, but further details will be published by the end of May and we will keep you informed of these changes.

As ever if you would like any more information on this then please contact me or one of the team at Norton Rose Fulbright. As mentioned my next video will examine some of the employment law implications of returning to work in more detail. Please continue to stay safe and well. Thank you.