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My speed read highlights the top Covid-19 issues and related changes employers may need to start thinking about.
Katherine Sheerin | Associate Solicitor | Quantrills
No return to normal
Last week saw a modest relaxation of some of the strictest coronavirus measures now the R infection rate is falling. For many businesses and workers, though, things are far from back to normal in the workplace. Not least because many are not working (still furloughed) or are working differently (e.g. from home instead of in the office). Others face different worries and concerns about working safely and protecting themselves, their families and customers. Added to this, job security is a growing concern in many sectors as a recession looms and with the need for lost productivity and reducing government financial support having to be addressed sooner or later.
From the employer’s perspective there is much to think about moving into this next phase of Covid-19 adaptation. Quite possibly workplaces will not return to any previous “normal” and working practices will change perceptibly for the long-term, not just in the immediate weeks and months ahead.
Providing a safe working environment
Whilst only certain non-essential businesses and public places were required to close, many more workplaces effectively did so or drastically changed how services were provided following advice that employees should work from home where possible. With more employees now returning to work, employers must meet their obligation to make the workplace as safe as possible for employees, customers and visitors, taking account of government guidelines. A key step is to undertake risk assessments.
Measures may extend to providing PPE, additional hygiene facilities, staggering attendance/working patterns to maintain social distancing, temperature testing, face masks, one-way corridors or stairs and restricting the number of people in lifts. It is our experience that employers are stepping up to the challenges successfully, with many introducing bespoke solutions such as redesigning office or other work spaces.
Handling employees who are concerned about returning to work or who are unwell
There may be a number of concerns and issues that employees raise which employers must deal with ranging from the fact that schools presently remain closed for some age groups (ie an employee may have no childcare options) to their wish to avoid contact with others outside the household because they are shielding someone who is vulnerable or are themselves in a higher risk category. Additionally, some employees may need to self-isolate even having returned to work if they have symptoms of Coronavirus or have been in contact with someone who has (NB new track and trace system). Advice may need to be taken depending on the circumstances, but we recommend employers adopt the 3 Cs: “communicate, consult and try and resolve consensually” as guiding principles. Employers should not overlook how each employee’s situation may well be different and therefore must be prepared to be flexible to get best outcomes.
The mental health duty of care and employee wellbeing
Exceptional times may mean adverse changes in working conditions for many and additional pressures that give greater possibility of stress-related claims by employees. Things to be particularly aware of include work overloading (eg if employees are shouldering the burden of furloughed colleagues’ responsibilities), inflexible targets which do not take account of Coronavirus conditions, isolation and elevated levels of anxiety generally. This, coupled with the fact that more employees are working from home, makes it harder for employers to monitor. Nonetheless, the duty of care needs to be borne in mind and employers should be aware that what it is reasonable for employees under normal conditions, and what they are required to do to support them, has to be reassessed in light of Coronavirus and its impact.
There is also an increased risk that employers could breach the implied term relating to mutual trust and confidence, for example if they put employees under too much pressure or fail to put in place appropriate health and safety measures.
Increased remote working
Following the practical experience of having to work differently, and official advice which remains to work from home so far as possible, employers may need to adopt new policies and protocols to facilitate remote working on an extended basis. This is likely to include provision of appropriate equipment and consideration of the home working environment (NB the obligation to provide a safe workspace/area extends to homeworkers as well as office-based staff). Additionally, the maintenance of effective communication and looking out for employees’ physical and mental wellbeing will need to be given priority. Besides this, employers should take steps to maintain appropriate confidentiality and data privacy standards in order to manage compliance risks associated with homeworking arrangements (ie where factors are not all under the employer’s roof).
Tapering of government financial support and workforce planning
As most employers will be aware, there have been various updates and modifications to the Coronavirus Job Retention Scheme (CJRS).
Latest announcements have confirmed that the CJRS will continue until the end of October but with employers bearing a greater share of the costs from August. To ease people back into work and enable employers to adjust staffing while business gets going again, employers will be able to ask furloughed employees to come back part-time from 1 July 2020. Employers will pay in full for days worked and can claim under the CJRS for days not worked, subject to the relevant caps. Full details of the new CJRS rules have not yet been published but are expected on 12 June 2020.
Ultimately, how successful government initiatives are in avoiding redundancies remains to be seen and many employers are already looking at longer term measures to restructure operations and scale back headcount to address the financial impact of the pandemic. Hopefully, the impact on profits and job losses will be reduced by on-going government interventions such as training initiatives and job creation schemes.
The next few weeks and months will see all employers adapt further to meet the challenges created by Covid-19. What is certain, regretfully, is that it will not be business as usual for any of us yet.