With the government’s announcement of a ‘roadmap out of lockdown’ and as we progress towards a full relaxation of coronavirus restrictions, more and more businesses are planning for a gradual return to normality. This blog sets out some considerations employers may want to think about over the coming months.
The vaccine and testing
By July 2020 the government anticipates that every adult in the UK will have been offered the Covid vaccine. The current government advice is that having the vaccine will not prevent you from contracting Covid or passing it onto others, but it will significantly reduce the risk of becoming seriously ill with the virus. Whilst it is hoped that most people will be vaccinated, you may have some employees who are unable to have the vaccine, for example because of medical or religious reasons, and you should be mindful of that. If you have employees in this situation, you should consider a risk assessment to highlight any obvious risk to the individual.
A common question is whether employers are able to implement (and insist on participation in) a system of workplace testing, or even on all employees being vaccinated. These are not straightforward issues and pose a number of challenges to employers wanting to go down this route. The starting point here is that anyone showing COVID symptoms should get tested and should self-isolate, whether or not their employer has a particular testing regime in place. If, however, employers wish to put in place a system where employees are pre-emptively regularly tested at work, they can register online to order free rapid lateral flow tests for employees, to be used in the workplace – although must register by end of March, which can be done here.
After a year of homeworking you may see a rise in flexible working requests from your employees. In summary, all employees with 26 weeks’ continous service can apply for flexible working so long as they have not made a previous request in the preceding 12-month period. An employee can ask to change the number of hours that they work, change the times when they are required to work, or change the place of work.
As an employer, you have an obligation to deal with flexible working requests in a “reasonable manner.” A meeting should be held with the employee to discuss the implications of the proposed change upon the business as well as any effect upon remuneration, pension contributions and bonuses. You have three months to make a decision, or longer if it is so agreed between the parties, and you may only refuse a request for one (or more) of eight specific business:
- The burden of additional costs;
- Detrimental effect on ability to meet customer demand;
- Inability to reorganise work among existing staff;
- Inability to recruit additional staff;
- Detrimental impact on quality;
- Detrimental impact on performance;
- Insufficiency of work during the periods the employee proposes to work; or
- Planned structural changes within the organisation.
There is a real danger when dealing with requests that employers, aware that the statutory obligations require consideration but not necessarily acceptance of a flexible working request, refuse purely on the basis they consider one of the eight business reasons (set out above) applies. However you should remember that refusal of a request could give rise to a discrimination claim in appropriate cases – e.g. a decision to refuse to allow a woman returning from maternity leave to reduce her hours could be challenged under sex discrimination legislation. This doesn’t mean an employer has to agree to every request – but it does mean that the onus is very much on you to be able to show that you have properly considered any request, have followed a fair process and have come to an outcome which is objectively justifiable.
For many of us, the concept of homeworking was new at the start of the first lockdown in March 2020. Yet many employers and employees have seen the benefits and some employers may be deciding whether to continue with homeworking arrangements on a permanent basis. If the employee’s contract does not currently state that their place of work is home, you will need their agreement to vary this contractual term. If they do agree to work from home on a permanent basis, we recommend that you confirm this change to their terms and conditions of employment in writing.
You will need to consider health and safety issues. Employers have a general duty to conduct a risk assessment of all the work activities carried out by their employees and to take measures to reduce any associated risks. There are also specific obligations under the Health and Safety (Display Screen Equipment) Regulations 1992 to:
- identify risks for individuals who regularly use display screen equipment (DSE), including laptops used for prolonged periods, as a significant part of their usual work
- reduce the risks identified to the lowest extent reasonably practicable
- provide adequate training and information to employees.
Employers are not excused from health and safety requirements just because employees are working temporarily from home. During the height of the pandemic, employers were unlikely to be required to approach things in the usual way - not least because it wasn’t possible for them to visit employees’ homes or for employees to access the workplace to take equipment home if needed. However, once restrictions ease, employers will need to ensure the home environment is adequately assessed and take measures to control risk. Many employees will be “making do” with their current set-up at home, which may be less than ideal, and employers should consider how best to identify and minimise risk in the long term.
Finally, it is worth remembering that employers owe a duty to protect their employees’ mental health as well as physical health. Permanent homeworking can present risks, including feelings of isolation and inability to disconnect. Steps to protect employees’ wellbeing could include, for instance, advising them to create a routine, go for a morning walk, have a defined lunch break and mid-morning/afternoon coffee breaks – and so on.
How can Tozers help?
Even after the restrictions ease, it is understandable that some employees may still be anxious about the possibility of returning to work in an office or attending face-to-face meetings. It is important to communicate with employees on the subject and to try to reassure them of the steps that you have taken to ensure a safe place of work. Employees may well have additional thoughts and ideas about how to approach a return to work that you may be happy to accommodate. The key point is to ensure compliance with the government guidance on social distancing, PPE and handwashing which is likely to continue to apply for some time.