As the UK government begin to lift lockdown restrictions, employers in the UK should begin planning for staff to be able to return to their places of work.
Many UK businesses have had to take steps to either limit or entirely reduce the number of employees on their premises during the lockdown period through a variety of means, including furloughing or asking staff to work from home.
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 number 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.
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 into account 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 into account 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 into account vulnerable workers and those with caring responsibilities.
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.
New health monitoring in the workplace
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.
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.
This means 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.
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David Philip Harris is a recognised employment solicitor with over 10 years of experience in advising employees and employers on employment law matters. He is a frequent contributor to BBC Radio Berkshire and People Management Magazine. David has represented individual and corporate clients in the employment tribunal as well as the High Court and County Court. David is a member of The Law Society and The Employment Lawyers Association (ELA UK). To contact David, visit the Contact Us page. For media enquiries: firstname.lastname@example.org.