Introduction

The United Kingdom's current lockdown extends until at least 7 May 2020, after which there is likely to be a further extension. When it eventually begins to be lifted, measures for a gradual and phased return to the workplace are likely to be imposed, with physical distancing measures remaining in place. The government is in the process of finalising guidance for employers on measures to ensure a safe return to work. Pending formal publication of these detailed guidelines, employers should start thinking ahead about how to manage the process.(1)

Other countries have already started to ease lockdown restrictions. New Zealand is making plans to relax some of its measures and several European countries have already taken such steps. Bookshops and laundries in parts of Italy and hardware and bicycle stores in the Czech Republic are reopening. Meanwhile in Germany, some smaller non-essential stores have been allowed to open, subject to their plans to maintain hygiene and physical distancing measures.

At the same time, there are already cautionary tales. Amazon has appealed a French court's ruling that the company failed to recognise its obligations regarding the security and health of its workers in respect of physical distancing, hygiene and warehouse cleanliness. Claims in the United States and Australia are raising questions of worker compensation if a requirement to be in the workplace leads to the contraction of COVID-19.

Bearing all of this in mind, it is important for UK businesses to plan how they will manage a return to work when the government begins to ease the lockdown. This article looks at the practical issues to consider.(2)

Key health and safety measures

Protecting the health and safety of employees in the workplace must be paramount. Employers should:

  • continue to follow relevant national and global guidance, including from the government, the National Health Service and the World Health Organisation (WHO);
  • before any return to the workplace, carry out appropriate risk assessments. These should cover risks posed by premises, working conditions (eg, proximity of workstations) and the composition of the workforce. Advance planning on how to adapt these, taking account of government guidance, will draw out potential issues and help to minimise risk. Consider whether appropriate insurance in place to cover the risk of claims and whether plans for reopening should be checked with the insurers;
  • provide employees with early and transparent communication on the plans. Consider providing guidance and establishing protocols on workplace measures that have been adopted. Think about the best way for information to be communicated to employees before they return to work (eg, email, video conference or online training) and afterwards (eg, notices, intranet or verbal briefings) and how updates will be provided;
  • if the business recognises a trade union, engage early on with the health and safety committee members about the plan to ensure understanding and provide input on the employer's proposals. Union engagement may also be required where changes to terms and conditions are needed (eg, shorter shifts or different hours). More generally, the union (or staff representative body, if applicable) may help to communicate guidance to employees and provide a route for them to raise questions or concerns; and
  • consider working hours and travel arrangements (eg, staggering start and end times) which may minimise staff commuting at peak travel hours. Encourage staff to use modes of transport that reduce exposure to others (eg, walking or cycling, where possible). For staff who have long, unavoidable commutes, consider whether they can continue to work from home (or continue to be furloughed). Another possibility might be to prohibit all non-essential work travel.

Assessing workplaces

Various specific measures can potentially be put in place to minimise the risk of cross-contamination.

Entry and exit to the workplace

People entering the workplace are a significant risk – employers should consider what hygiene facilities will be available and how physical distancing can be maintained. Employers should determine whether the building is suitable for most employees to use the stairs instead of the lift. They should consider whether there should be a one-person-per-lift rule. Where security and safety allow, employers should consider whether doors can be left open so that there is less touching of handles. Another possibility might be to implement a one-way system of moving around the building. Staggering employees' start and end times may also relieve pressure during a building's peak entry and exit periods, as may introducing rules minimising exit and re-entry by staff during the day.

The general workspace

Employers must consider how physical distancing can be effectively achieved. In an office environment, desks should be at least two metres apart and not face-to-face. This will require an assessment of how it affects the maximum number of people that the workplace can accommodate – one option might be to divide the workforce into groups and rotate attendance in the office. For retail businesses, possible options include imposing a limit on number of staff working at a till or cash desk or entering the stock room, or restricting employees to one area or floor.

Toilets and kitchens

Limits should be imposed on the number of people allowed to enter these spaces at the same time (eg, by staggering lunch times). Consider prohibiting the use of company crockery and cutlery and encouraging employees to bring their own. Employers should consider whether the use of coffee machines and fridges is allowed.

Meetings

Employers should consider the risks associated with time spent in more confined spaces, particularly whether meetings really must be held in person rather than by video conference. If in-person meetings are agreed, employers must determine how the room should be arranged. Employers should also consider whether to prohibit travel for non-critical business meetings.

Third parties and customers

Employers should assess the risks associated with third parties entering the workplace and remember that they have an obligation to ensure their health and safety too. In a retail environment, employers should consider whether customers should be asked to sanitise their hands on entry. In the office environment, employers should consider whether third-party in-person meetings are really needed. Employers should determine whether there will be agreed protocols around this (eg, hygiene requirements, travel suggestions and no hand-shaking). Consider appropriate protocols for deliveries and collections.

Staff facilities (eg, cafes and gyms)

Employers should determine whether these should facilities be open or closed. The safest approach is the latter, but outsourced providers may want to get their staff back working as well. Find out whether there are contractual commitments in outsourced contracts to have facilities running if the building is in use.

First aiders and fire marshals

If a building is to reopen, employers must consider whether there is a requirement for appropriately trained first-aid and fire marshals to be present. It might be advisable to arrange online training for staff now to ensure adequate cover and thereby compliance. Employers should consider whether the building or facilities manager must always be present.

Personal hygiene

Clearly, there may be many different people touching the same equipment, handles and buttons. Employers should consider whether adequate volumes of hand sanitiser for a workplace can be sourced. They should also consider whether disinfectant wipes for keyboards and phones should be provided or whether they should implement a rule that employees should use only their own keyboard or laptop and phone. Workspaces should be regularly deep cleaned, particularly hard surfaces that are regularly touched.

London Mayor Sadiq Khan is currently pushing the government to encourage people to cover up while out in public and to make face masks compulsory on public transport. Even if current government guidance does not change, employers might want to contemplate providing face masks to employees who are required to re-enter the workplace.

Policies and testing

Now is the time to consider whether amendments to policies will be necessary to cater for this new situation and issues surrounding the testing of employees, whether voluntary or mandatory.

Sickness, health and safety, homeworking and disciplinary policies

Employers should determine whether there will be a discrete return-to-work policy and whether a new policy on COVID-19 and infectious diseases should be put in place. Employers will naturally want to encourage employees with COVID-19-like symptoms or a temperature to stay at home, but there are various issues that they must work through. Employers should consider the situation where they notice that an employee has symptoms while they are at work. Employers must determine whether the employee would be requested or directed to go home and what implications this would have for pay. Employers must determine what the consequences would be if the employee refused.

Testing

There is likely to be no problem with allowing employees to do their own voluntary and confidential testing (eg, using electronic temperature readings at the entry to the building). If employers wish to have more control (eg, by introducing mandatory testing), there will be significant data protection and contractual issues to consider before introducing such a policy.

Assessing who will return and when

Employers will most likely not initially need all of their workforce to return to the workplace. This may be because the business can function with staff working from home, or perhaps staff will not be not required at the premises because there is a slow return to normal business. Employers should think about how many staff (if any) are needed at the workplace, considering the associated risks.

It may be advisable to begin by exploring who would be willing to return to the workplace – if there are enough volunteers, this could be the best option. However, there would still be various issues to consider in this situation, including the following:

  • The more people who enter the workplace, the greater the risk of a new outbreak. If there are more volunteers than required, consider selection from that pool (avoiding bias) – for example, based on their journey to the workplace.
  • If too many employees want to come into work at any given time, employers may need to impose a limit on the number of people allowed in the building. Employers must determine whether employees will be required to give advance notice of when they intend to come in and, if so, who will manage this.
  • Employers should consider whether there is a sufficient spread of volunteers to enable the business to function properly (ie, workers who are not all in one team, performing limited roles or at one grade of seniority).
  • Consider implementing a rota for who comes in and when (eg, a set percentage of the volunteers), which may also assist in maintaining physical distancing guidelines.

Employers may need to have a mandatory system if there are key people that they need or want to be present, or where there are insufficient volunteers:

  • If using a mandatory system, employers must determine how to select who is to return. A minimum number of people may be required in each role for the business to operate (eg, chefs and waiting staff).
  • There may be other selection issues – for example, it will likely be prudent to allow employees to stay at home (or be kept on furlough) if they are vulnerable, have caring responsibilities or their commute puts them at particular risk. Remember employers have overriding duty to provide a safe place of work.
  • Consider how employers would select employees to come off furlough, bearing in mind any potential discrimination or procedural and fairness issues – particularly if this could affect pay or long-term employment prospects.

If employers have furloughed staff and the government scheme is still in place, issues may arise if some employees are working and some are on furlough:

  • If some employees are asked to return and others are not, either group may protest. Where employees on furlough are receiving 100% pay, it may be difficult to incentivise those who are returning to work. This is likely to be easier where furloughed workers are on reduced pay and those who return to work are paid at their full salary.
  • A difficult question is how to deal with situations where an employer needs staff to come off furlough but does not have full-time work for them (eg, a restaurant is opening only at the weekend). This could mean placing staff at a financial disadvantage by being asked to work.
  • Consider whether rotational furlough could be used (eg, in three-week blocks).

Employees and joiners travelling to the United Kingdom

Special consideration will need to be given to employees returning to work or joining the business from overseas. Other countries are at different stages in curtailing the spread of COVID-19 and some have taken a different approach from the United Kingdom to tackling its spread. The UK borders currently have no screening or testing in place and it is unclear whether this will be implemented.

If employers are in this position, they will need to assess if those returning from certain countries are higher or lower risk and act accordingly. Those returning from higher-risk countries could, for example, be required to undertake a period of self-isolation before any workplace return.

Then what?

As staff return to the workplace, employers should regularly audit the effectiveness of their policies and procedures and whether they are being adhered to.

Employers should also keep in mind the WHO's warning that rushing to lift lockdown measures risks a resurgence of COVID-19. Singapore has already re-entered an extended period of lockdown. Any relaxation of restrictions will not mean that the United Kingdom is out of the woods and a second lockdown is possible. Therefore, employers should be cautious about making long-term commitments to employees and make clear that any return-to-work measures will continue to be reviewed and adapted to evolving government guidance.

Endnotes

(1) Further information on establishing a return-to-work plan is available here.

(2) Further information on planning exit strategies for when the furlough scheme comes to an end is available here.