Updated Friday 18th September 2020
Latest Government guidance:
- – 5 steps to working safely
- – Working safely guidance for 14 workplace situations
- – Health & Safety compliance
- – 5 steps practical examples to adopt
Further planning for return to work:
- – Testing
- – Mental health on return to work
- – Changes to salary and benefits
- – Flexible working
- – Homeworking
- – Sick / caring for family leave & SSP
Planning for future disruption
Latest Government guidance for Employers & HR planning
Boris Johnson had resumed his roadmap to ending the national lockdown on 10th August, after ‘squeezing the brakes’. But as we enter autumn, tighter restrictions are in sight with local lockdowns already in place in areas with high numbers of Covid-19 cases. Employers are planning for, or already managing disruption. The gov.uk site has updates on areas with an outbreak of Covid-19 and what is an isn’t permitted in these areas.
At time of writing the North East including Northumberland, Newcastle, Sunderland are on the brink of more restrictions on households mixing and pubs closing earlier at night. Local lockdowns are imminent in Lancashire, Greater Manchester and surrounding areas, Aberdeen and Glasgow have or are still encountering stricter local restrictions.
On 17th July Boris Johnson changed the “work from home if possible” message to one encouraging workers to return to the workplace. On 1st August he gave employers the go ahead to ask employees to return to Covid-secure workplaces, and asked all business and venues to follow the Covid-19 Secure guidelines. These are listed below. This message still remains, for now. The PM urged employers to consult closely with employees (our advice throughout) and only ask them to come back if the workplace is Covid-secure. The Government continues its campaign to get more people back into the workplace.
From Monday 14th September the Government has reintroduced a ban on social gatherings of more than 6 people. This may mean that staff think they should not be back in the workplace. However the Government has stated that provided the workplace is Covid-19 Secure, staff can safely return to the workplace.
A combination of people returning from holiday, children going back to school and those in lockdown areas seeking tests, have put severe pressure on the UK’s current testing system. Employers will need to be mindful of the potential effect this bottleneck, and of the UK’s test and trace system generally, on staffing.
This article covers what you need to know for managing your workforce in these times and includes guidance on planning for future disruption, when an employer should close a workplace, and what to expect if this happens.
By the first week of September all UK schools have reopened with secondary school staff and children from year 7 and above in England having to wear face coverings in communal areas.
Face coverings mandatory in more places
Face coverings will be mandatory in schools that are in local lockdown areas and left to the discretion of head teachers in the rest of the country.
From 8th August it became law that face coverings must be worn in indoor public settings in England “where you are likely to come into contact with people you do not normally meet”. Tougher penalties were introduced on 13th August and those not doing so could be fined £100 and up to £3,200 for repeat offenders. The requirements do not apply to certain categories of people, such as employees, children under 11 yrs, and certain groups who are exempt.
Face coverings became mandatory in more indoor settings including museums, galleries, places of worship, and public areas in hotels, vets, theatres, conferences and exhibition centres as well as premises providing professional, legal and financial services. Passing through transport hubs, visiting shops, supermarkets, shopping centres, banks, and post offices, also requires people to wear face coverings.
Workers in these places need to be briefed about these workplace changes. The rules and fines are, we’re told, enforceable by police, rather than by workers in these places. The line is not entirely clear though. The government guidance states that “premises where face coverings are required should take reasonable steps to promote compliance with the law”. Workers themselves do not have to wear a face covering in these places.
Face coverings have been compulsory on public transport since mid June and in retail stores since 10th July.
Returning to the workplace
As of 1st August employers have had more discretion over how employees can work safely. Providing their workplace is Covid-19 secure, employers can ask employees to return to the workplace.
At the time of writing, clients are reporting that a significant number of employees are still reluctant to return to Covid-19 secure offices.
Taking the time to have conversations and a good listening ear to probe for and understand the, often unspoken, reasons for an employee’s concern, is a sound way forward through the impasse.
From 1st August onwards, everyone has been permitted to use public transport at any time in England. Public transport use is still well down. Employers will need to keep a careful eye on how their people can travel to work safely.
The government has published new guidance for employees required to self-isolate for 14 days after returning to the UK, following the recent expansion of travel quarantine requirements (see www.gov.uk/guidance/coronavirus-covid-19-travel-corridors). The guidance states that, where possible, employees should work from home during their self-isolation period. If this is not possible, employees can agree with their employer to take leave to cover the period of self-isolation.
The guidance suggests that employers should think carefully before dismissing an employee because they cannot work due to imposed self-isolation. Dismissal should be treated as a last resort and employers should consider alternative arrangements first, such as agreeing with employees to take annual leave or unpaid leave. The guidance states that employers who dismiss an employee because they have had to self-isolate following travel abroad may be liable for unfair dismissal, and emphasises that employment tribunals will consider all relevant facts surrounding a dismissal, including the public health guidance on COVID-19. However, the guidance is silent as to whether employees required to self-isolate in these circumstances will be entitled to any pay (or statutory sick pay) if they cannot work from home.
Social distancing still the norm
The 2 metre social distancing rule remains the preferred guidance. However to assist the reopening, 2 metres safe social distance becomes “one metre plus” an additional form of infection mitigation, which can be:
+ wearing face coverings (mandatory in enclosed public spaces from 8th August.)
+ increased use of hand sanitiser
+ sitting people alongside rather than face to face to reduce transmission.
For example, on public transport it will be one metre plus a face covering. In this article, reference to 2 metres social distancing includes the “1 metre plus” modification as applicable.
In addition, hospitality businesses will be asked to assist NHS Test and Trace respond to local outbreaks by collecting contact details from customers.
The Government has published Covid-19 Secure guidance for 14 different workplace situations, see the list and links below.
Employers should continue to expect the Government to impose local lock downs and have plans in place for each work premises should lockdowns occur.
Government’s 5 steps to working safely during COVID-19
The Government has published for employers its guidance for making workplaces ‘COVID- secure‘. The guidance sets out 5 practical measures that employers must adopt to maintain the critical two metres social distancing, what to do where this is not possible and adopting very good hygiene and cleaning practices at the workplace.
1 Return to work, if you can do so safely
During lock down, people were asked to work from home and employers were asked to take ‘all reasonable steps’ to help them do so. Then the shift came and on 10th July, the PM urged people to go back to work if they can, and if their workplace is covid-19 secure.
As we go forward, we may see regional reversals back to home working. Find our employers’ guide to homeworking, which includes a template homeworking policy, risk assessment, guidance and resources here if you need it here).
2 Carry out a Covid-19 risk assessment, in consultation with workers or trade unions and implement it
This forms the core of your return to work plan. Take the opportunity to consult with staff, so that when they do return to work on site, they have already been consulted and given their views on making their workplace Covid-19 secure.
If possible, employers should aim to publish the results of their risk assessments on their website; the Government expects all businesses with over 50 employees to do so. Further details on risk and completing risk assessments are contained in the guidance for making workplaces ‘covid-19’ secure.
Following the PM’s announcement, on 12th May 2020 the Health & Safety Executive (HSE) published a toolkit designed to assist employers to manage and assess risks at work arising from the COVID-19 pandemic and more generally.
HSE risk assessment toolkit overview and,
HSE risk assessment detail .
3 Maintain two metres social distancing wherever possible
Employers should re-design workspaces to maintain two metre distances between people by:
- staggering start times
- creating one way walk-throughs
- opening more entrances and exits, and/or
- changing seating layouts in break rooms.
4 Where people cannot be two metres apart, manage the transmission risk
Employers should consider:
- putting barriers in shared spaces
- creating workplace shift patterns or fixed teams minimising the number of people in contact with one another, and/or
- ensuring colleagues are facing away from each other.
5 Reinforce cleaning processes
Workplaces should be cleaned more frequently, paying close attention to high-contact objects like door handles, stair rails, and keyboards. Employers should provide hand washing facilities or hand sanitisers at entry and exit points.
Government guidance for 14 workplace situations
The Government guidance consists of eight workplace guides for different workplace situations, listed below:
Close contact services: hair & beauty, therapists, tailors
Construction and other outdoor work
Factories, plants and warehouses
Hotels & other guest accommodation
Labs and research facilities
Offices and contact centres
Other people’s homes
Providers of grassroots sport and gym/leisure facilities
Restaurants, pubs, bars & takeaway services
Shops and branches
The visitor economy: hotels, guest accommodation, indoor & outdoor attractions, business events & consumer shows.
Each guide sets out practical considerations for employers on how to set up a COVID-19 secure workplace. You will need to put in place as many as are appropriate for your workplaces. Expect these guides to be updated regularly so check them frequently. You may of course need to follow more than one guide.
As COVID-19 is a new illness, employers must follow this official guidance as it is updated and adopt any additional steps as required.
The guides also confirm that the wearing of face coverings is optional and not required by law at the workplace, unless there is a specific requirement for PPE because of the industry or workplace setting.
Health & Safety compliance
HSE have the power to undertake spot checks and impose fines and workers can complain to the HSE if they think the workplace is not ‘COVID-19 secure’. HSE says workers should follow up with their employer first before contacting them. HSE have stated that in their experience of complaints so far, employers usually have not understood what is the right thing to do, rather than deliberately breaching health and safety laws, and when HSE has contacted the employer, the employer has worked with HSE to remedy the situation.
Health & Safety case law shows that where the employer has been liable, it has usually been a result of failing to implement the employer’s own system for making the workplace safe in line with its own risk assessment.
Following the guidance above will help employers to comply efficiently, to reassure your staff that theirs is a COVID-secure workplace and is a major part of an employer’s compliance with Health & Safety Law.
Each guide includes a downloadable notice which employers are encouraged to display in their workplaces, to show that they have followed the guidance.
It goes without saying that employers will still need to follow their legal obligations for Health & Safety, Employment and Discrimination Law.
Continue to communicate very closely with your employees as they return to work and in the coming months if there are changes to the current guidance and / or local lockdowns take place. Be ready to review regularly your risk assessment and update it, and communicate it again with your staff.
Employers have a duty to take reasonable care and steps to ensure the safety of their workers at work – whether in the workplace or at home. This includes physical and mental safety. What is ‘reasonable’ will depend upon the:
- type of workplace
- likelihood and gravity of harm
- costs and practicality or preventing it; and
- justifications / defence for running any risks
COVID-19 has been designated by the UK Government as a ‘serious and imminent threat to public health‘. This means that the above Health and Safety duties are critical. If employers do not take adequate measures to protect their workers when returning to work, under the Employment Rights Act 1996 (s44), workers have the right to:
- walk out;
- refuse to return to work; or
- take appropriate action to protect themselves or fellow workers
Workers are protected from any detriment they suffer from an employer as a result of workers taking the above protective action and any dismissal would be automatically unfair. Therefore employers should:
- carry out a risk assessment, as stated above, and
- maintain very good two-way communication with staff so concerns can be addressed.
5 steps to working safely, practical examples
The 5 steps to working safely summarise practical measures that employers must adopt to maintain two metres social distancing, what to do where this is not possible and adopting very good hygiene and cleaning practices. We have seen other employers and some of our clients deploy some of these practices for COVID-secure workplaces.
- Objects and surfaces that are touched regularly should be cleaned and disinfected frequently during the day. e.g door handles, keyboards, stair rails. The current evidence is that the COVID-19 virus survives on most hard surfaces for about 48 hours (and shorter periods on softer surfaces) so working on a maximum 72 hour virus survival period on work surfaces would be sensible.
- Workers should wash their hands using soap and water for 20 seconds as regularly as possible, and be given hand-sanitiser.
- If you decide the work should continue, staff should work side by side or facing away from each other rather, rather than face-to-face if possible. Consider Zig-zagging workstations can
- Splitting teams is a good idea. For example, some companies are considering splitting teams to allow some employees to attend the workplace for e.g one week and then a second team to attend for the second week, (called “co-horting” where teams are kept as small as possible) as was trialled when the pandemic first impacted the UK. This form of staggering on-premises working will reduce public transport use during traditional rush hours and peak periods, which should ease staff health concerns while travelling. Others are looking at mixing remote working with limited time in the office.
- Stagger break times to lessen communal use of kitchens and rest areas. Remind workers to bring their own mugs and not to make teas and coffees for others.
- Use signage and put markers on floors and desks to remind about social distancing e.g at coffee stations or in kitchens.
- Use digital rather than paper based systems, and
- Using the Government testing services will be important.
Further planning for return to work post lockdown
A combination of people returning from holiday, children going back to school and those in lockdown areas have put pressure on the UK’s current testing system (specifically at the laboratory end of things, limited lab capacity means the releasing of new appointments is being held back). Under the NHS Test and Trace system, everyone who has symptoms of Covid-19 must isolate immediately, for 14 days, and get a test, within 5 days of those symptoms appearing. Those who have been in contact with anyone testing positive are being identified through tracing and asked to isolate for 14 days.
Since this announcement the national system for tracking down people who may be infected has changed. The central pool of contact tracers are making way for local teams with neighbourhood knowledge. Local authorities will now step in if people can’t be reached by the national service.
At the time of writing there are 2 types of test. The first main, test is to diagnose someone with a current case of coronavirus and involves a nose and throat swab which has to be sent off to be processed at a lab. About 3/4 of people are receiving results back in 24 hours.
The second test is to test if the person has had the virus, called the antibody test. Antibody tests are currently available only to health and care staff.
Employers will need to be mindful of the potential effect of the test and trace system on staffing. Arranging teams in small cohorts and rotating teams are sound measures.
In addition, hospitality businesses are being asked to help Test and Trace respond to local outbreaks by collecting contact details from customers.
The UK testing system is coming under pressure from surges in demand. Employers of essential workers and workers over 65 who are self isolating with symptoms of coronavirus can book a Covid-19 test for them online. The Government will update details of who can be tested here. Employers of essential workers should email email@example.com with two email addresses that will be used to log in and upload essential worker contact details. Once employer details have been verified, login credentials will be issued for the employer portal for Covid-19 testing.
All care home staff and residents are now eligible for testing with priority for those in homes that look after the over-65s. An online portal is now live for care home staff and residents that makes it easy for care homes to arrange deliveries of COVID-19 test kits.
Swab tests are already available to all adults and children who are experiencing symptoms of Covid-19, They involve taking a swab up the nose or from the back of the throat and indicate if a person currently has Covid-19.
Where employers are considering securing immunity/antibody testing kits when available so that staff can be tested for Covid-19 before they return to the workplace, employers they will need to consider:
- how they can require employees to submit to testing,
- how to manage the privacy and data protection issues involved in processing employee’s health data which is special category data for the purposes of the GDPR,
- how will the testing be done, and
- who will conduct the testing.
The Information Commissioner’s Office has also published a new set of FAQs for employers on data protection issues employee temperature testing.
Mental Health on return from lockdown
Mental health will have been a real issue for many during the lockdown who will want to return to work for the social effects as well to get “restarted in a more familiar environment”.
Some employees may find prospect of returning to work may be even more worrying than being at home dealing with feelings of loneliness and anxiety. Having being consistently urged to stay at home to protect the NHS and save lives, there will be widespread concern about stepping out beyond home boundaries, sending children back to school, getting back onto public transport, being back in close proximity with colleagues or just having to resume a “normal” working day.
An employer who wants reintegration to be as smooth as possible will be very much aware of these issues and should:
- Develop a clear communication plan in place to allay concerns by setting out what the employer plans to do to help employees
- Provide support as necessary to help those who are struggling to deal with the return to the workplace.
Changes to salary and benefits on return from lockdown
The Coronavirus Job Retention Scheme (Furlough Scheme) continues until 31 October and employers are now contributing to the worker’s salary costs on an increasing scale since 1 August.
Now may still not be the time for any hasty redundancies which, in the short term use up even more cashflow paying the salary and benefits for employees’ notice periods and the statutory redundancy payment for employees with at least 2 years service. These statutory redundancy payments will need to be made at 100% salary. There is also now the £1,000 the Job Retention Bonus for employers to claim for staff who have come back from furlough and remain employed at 31 January 2021.
Employers who have furloughed workers under the Coronavirus Job Retention Scheme, will need to review the situation each month.
Employees who may have reluctantly agreed to these arrangements while under lockdown and may be more likely to challenge these once they are asked to return to a more normal working pattern.
Therefore, employers will need to justify any decisions to prolong these arrangements or to put in place new measures, ensuring employees are properly informed (and, where necessary, consulted with) to ensure there is a clear understanding of the rationale.
As other industries announce redundancies workers will be concerned and may see the fact that they have been furloughed as indicating they are more at risk of redundancy. Ensure there is a one-to-one return to work and appropriate team meetings to re-enforce returning workers as part of the team.
Flexible working on return from lockdown
Employers would be wise to consult with workers individually about their situations to enable an effect and safe return to work. As we have already stated above the Government is recommending that employers ensure that staff work from home where they can but there is now a drive to get workers back to the workplace.
The lockdown has seen a more wide spread adoption of home working adn may be deployed as the situation requires. For example if a worker has to shield for their own or family reasons or is contacted by test & Trace or home schooling is re-introduced, home working may be required for some weeks and months. Workers may be at time unfit to work and be back into the Statutory Sick Pay (SSP) scheme.
Now is the time to update what is needed for home working on a longer term basis e.g changes to employment contract, risk assessment and identifying the correct way to use secure IT systems and the new video conferencing, messaging, collaboration platforms etc.
Our home working article covers all the elements Employers and HRs need to know in order to get home working right.
Home working going forward
Employers have been implementing remote working since the lockdown of course, and some employees will continue to work from home in the mid term.
In normal circumstances, anyone working from home should undertake a risk assessment of their home workplace. Clearly, this was not possible in the early phase of adjusting to the pandemic.
– working hours can still be clearly defined, and
– staff should receive their normal pay, taking into account any furlough payments from August 2020 if they work part time.
Employers are still responsible for employees’ Health and Safety and welfare when they are working at home.
Communicate with workers your policy on:
– home working,
– work travel, and
– precautionary isolation.
Consider what pay your employees will receive if they work part-time, to fit around caring for children/elderly relatives.
Be as agile and flexible as you are able to ensure as many employees as possible to continue working.
Conduct internal and client meetings where appropriate using virtual meetings/video conferencing/live streaming.
Workers who are shielding
From 1 August 2020, employees who had been shielding and who cannot work from home will be able to return to their workplaces. For the clinically extremely vulnerable in England, who have been shielding but do not have to any more employers will still need to take a workers personal situation into account. This is because of he health and safety risk of forcing them back into the workplace with the risk of them contracting COVID-19 at the workplace. Individual discussions should always take place with these categories of workers. As employees may feel uncertain about returning to work employers can help with the transition for their clinically extremely vulnerable employees, ensuring that robust measures are put in place for them to return to Covid-secure workplaces. This includes agreeing a plan for their returning with employee, taking account of the employer’s policies in relation to COVID-19 and any necessary adjustments to enable the employee’s return. The employer should update their Risk Assessments for these changes and for these particular groups of staff.
The NHS will maintain the Shielded Patient List and, should levels of Covid-19 increase in communities, those at highest risk may be advised to take more restrictive measures to keep themselves safe. Employer should therefore plan for these employees having to work from home again.
Things to consider, depending on business requirements and staff profiles
Some of the issues that you should consider from an employment law perspective include:
Sick leave / caring for family members & Sick Pay
- Any staff who have to self-isolate or be quarantined under the Health Protection (Coronavirus) Regulations 2020 passed recently are deemed to be sick and would receive contractual sick pay or, if there is no contractual sick pay, then Statutory Sick Pay (SSP).
Staff do not need to go to their GP to get a sick note.
The Government is advising people not to visit their GP but instead to self isolate at home for 7 days, use the NHS website for help and
call NHS 111 only:
– if they cannot cope with their symptoms at home,
– cannot get help online.
– if their symptoms deteriorate
– if symptoms do not get better after 7 days.
SSP is paid at £94.25 per week. SSP will be payable for 14 days by employers directly to staff and employers with less than 250 staff will be able to claim it back from the Government.
Your workers on zero hours contracts are entitled to sick pay if they have done some work for you and have earned on average £118 or above per week.
The Government has indicated that it is making plans for anyone not eligible for sick pay, who needs to self isolate due to the virus.
The self employed now qualify for SSP, as we stated above.
Those earning less than £118 per week appear not yet to qualify for SSP
Those working in the gig economy will be able to claim universal credit and/or contributory Employment and Support allowance. Watch out for announcements outlining how this will work.
Look out for these upcoming details and communicate as soon as they become available, to reassure staff.
- Plan for a greater percentage of your staff having to self-isolate, as the Government is requiring whole households to self-isolate for 14 days at home if one family member is sick (i.e has a new persistent cough, or a fever, which are the main early symptoms of the virus).
- Employers can decide to require staff to stay at / work from home and so would continue to pay staff full salary and benefits where staff are not sick but working from home.
- Staff may use their statutory rights to time off to care for dependants (short – term unpaid leave) or can use annual leave or parental leave as applicable, as the schools are closed from Monday 24th March to all but the vulnerable children and children of key workers.
Remind employees of their rights to do so.
- The Government has implemented form 1 September 2020 a new payment for people on low incomes in areas with high rates of COVID-19, who need to self-isolate and can’t work from home. Payments of up to £182 to be made to people who have tested positive for COVID-19 and their contacts. The Scheme started first in Blackburn, Darwen, Pendle, and Oldham.
Planning for future disruption
There is a great deal of talk about avoiding a second peak, and continued disruptions in the months ahead, so businesses need to continue to:
- Identify business critical roles and how they can be maintained.
- Identify any vulnerable employees, such as pregnant women and those over 70 and those who have received a letter from the NHS explaining that they must shield
Assess and agree the adjustments needed for them for example long term working from home.
Where travel is absolutely necessary:
– consider what protective measures should be put in place,
– ensure that protective equipment is sourced and ordered
– check the FCO advice for the country in question.
- Identify the minimum safe level of workers required to continue operating, and how that can be maintained in the worst-case scenario. Identify the point at which the business may need to cease operating temporarily and speak to us about the employment law consequences.
- Plan for staff working from home on a longer term or more regular basis in accordance with the Government guidelines or flexible working requests, because parents are still home-schooling.
- Plan for a local lockdown which means workers have to work from home again and non-essential travel is curtailed.
- Plan for vulnerable and/or shielding staff to have to go back to home working or taking sick leave.
- Some staff will be keen to return to the workplace and others may be very nervous of the health risks of travelling to and attending work.
At what point should an employer close the workplace?
- The Acas guidance advises that if someone with COVID-19 comes into a workplace, the workplace does not necessarily have to close.
- In England, the local Public Health England health protection team (HPT) will get in contact with the employer to:
– discuss the case
– identify people who have been in contact with the affected person.
– carry out a risk assessment
– advise on any actions or precautions to take.
- A risk assessment of each setting will be undertaken by the HPT with the employer. Advice on the management of staff and members of the public will be based on this assessment.
- The HPT will also be in contact with the case directly to advise on isolation and identifying other contacts and will be in touch with any contacts of the case to provide them with appropriate advice.
- Advice on cleaning of communal areas such as offices or toilets will also be given by the HPT.
Review the plan each week and communicate regularly to staff
From July 18th, the Government gave local councils the power to impose lockdowns to combat potential outbreaks. Councils can now close premises, pubs and cancel events without asking the Government. It follows that businesses need to comply with any local lockdown imposed by their local authority.
Keep up to date
Refer employees who are concerned about infection to the official medical sources and advice below, and encourage them to keep themselves informed and updated as time goes on.
NHS Coronavirus COVID-19 : how to protect yourself or check if you need medical help on the NHS website.
If you need further advice to enable your workers to start returning to your COVID-secure workplace or to continue working from home safely or to start returning to your COVID-19 secure workplace, please do get in touch. We are here to help.
If you want to talk through your plans or need specific advice please call on 0208 255 1914 or 0203 755 5288 or email me. We are here to help.