The legal considerations to be made when phasing employees back to work

As businesses in England begin the process of easing employees back to work, they will find themselves embarking on an unprecedented process. Strict social distancing and adequate protective measures set out by the government raises questions around personal safety and employer responsibilities, meaning great care will need to be taken to avoid reputational damage or costly tribunal claims.

Here, Joanne Wright, Employment Solicitor at Hudgell Solicitors, shines a light on the various aspects that employers should consider when returning to the office.

Follow reopening requirements

The government’s new COVID secure guidelines lay out the rules and regulations in which businesses must follow before reopening1. This includes improving cleaning processes, ensuring social distancing regulations are adhered to and controlling transmission risks. The guides are substantial, but employers should review the appropriate guidance thoroughly (according to workplace type) before putting a plan in place.   

Ahead of reopening, businesses should conduct a thorough health and safety risk assessment, to confirm that the workplace is safe and in line with the guidance. This will also highlight any areas where a business may fall short of requirements and provides the opportunity to put necessary processes in place. Risk assessments should be displayed on the company website (where possible) and be available for all staff to view. Regular reviews and assessments should be maintained and updated over time.

As well as reassessing the physical space at the office, some businesses will need to introduce shift patterns to ensure employees can travel to work and back safely. They will need to consider the hours for each employee, ensuring a shift pattern does not mean they are working less or more than what has been contractually agreed or that they are discriminated against.

Fair selection process

For many businesses, it is advisable to operate a phased return, in order to manage the number of people in the office and help facilitate social distancing. When identifying people to return to work, employers must ensure the selection process is logical and more importantly, fair. Employers should always be open and transparent with how they are selecting staff. The decision criteria should take into account factors including; personal preference, underlying health conditions, roles and responsibilities, commute time and childcare commitments.

A lack of work or decline in revenue, may mean some businesses unfortunately have to make redundancies. In this instance, the usual redundancy considerations should be made, allowing time for the necessary consultation period and selecting appropriate representatives.

Consult employees along the way

As well as physical safety and hygiene, employers should also complete wellness checks to ensure they are considering the mental wellbeing of the staff. All employees will feel differently about returning to work, depending on their personal circumstances, so this provides the opportunity for employees to voice any underlying issues or reservations and allow employers to act accordingly. Regular surveys and open discussions are effective ways of including staff in decision making whilst also providing transparency and ensuring they are well informed.

Further, with around 2.2million individuals falling within the ‘extremely vulnerable’ category and subsequently shielding at home, businesses will need to consider what they can do to protect them should they be an employee or a member of the same household.  There may be additional measures to take when asking for a return to work to ensure that the extremely vulnerable remain protected. Government advice remains that if a person can work from home then they should continue to do so. 

If you do need to bring a person back but they themselves are vulnerable or within a vulnerable household, a risk assessment should identify measures to put in place to maintain safety. If a return is still not feasible, businesses should consider other options which may include continuing to utilise the furlough scheme, if eligible, paid leave or annual leave. 

Ultimately, when phasing staff back to work, employers should take a collaborative approach. Businesses should recognise that this will be a long process and, whilst the Government has given the green light for returning to work, the health of staff and safeguarding from the virus is of the upmost importance.

Author: Editorial Team

Share This Post On