Returning to The Workplace
Employers should undertake risk assessments which will need to be reviewed as government advice changes. You may wish to refer to the Health and Safety Executive website for more information. A risk assessment has a crucial role in ensuring a safe return to the workplace process. The end goal is to adopt appropriate control measures which reduce or remove the risks of contracting Covid-19 when returning to work. The risks around visitors entering the workplace, such as customers should be assessed too as there is also a legal obligation to ensure their health and safety.
Employers need to put people first and safeguard their health and well-being; homeworking should continue for every role that can be carried out remotely. If social distancing can’t be done properly or safely, employers should act responsibly in line with their legal obligations to ensure the health and safety of both their employees and any visitors to their site. This could mean staying closed. Employers should consider who really needs physically to be in the workplace. It may be possible to reorganise any non-essential workplace based work, as people’s health and safety is paramount. Employers should listen to people’s concerns about returning to work and allow for a period of adjustment and putting plans in place. For many businesses, easing lockdown restrictions will be a more challenging, complex and drawn-out process than the original lockdown.
Employers with health and safety and occupational health and facilities management teams should work closely with them and refer to the government website for the latest advice, including the Covid-19 secure workplace guidelines. They should also communicate and consult with employees about the measures to be introduced, including with any recognised trade unions and/or employee representatives.
As social distancing is likely to continue to apply for some time, to ensure that staff numbers allow for this employers can consider:
- shift working in teams
- office redesign
- home working
- other atypical working patterns.
These methods will reduce the number of people in the workplace. Changes to contractually agreed working hours will usually need employees’ agreement.
Following the Government advice on Monday 11 May those who can work from home should continue to do so. Those who cannot work from home are being actively encouraged to return to work in England if their workplace is open. The Government say that sectors of the economy that are allowed to be open should be open. These sectors include food production, construction, manufacturing, logistics, distribution and scientific research in laboratories. The only exceptions to this are those workplaces such as hospitality and non- essential retail which the Government is currently requiring to remain closed. Different advice applies in Scotland, Wales and NI where people are all currently advised to continue to stay at home.
The Government has released 8 guides outlining how workplaces can operate safely during the pandemic and so many employers will now be looking to prepare for a return to the workplace. Part of this will be deciding which employees can safely return to the workplace.
If employers are selecting certain employees to return to the workplace (rather than requiring everyone to do so), employees must be selected fairly. Some employees may volunteer, and employers should keep a record to show that they have done so. You may wish to use the HR-inform return to the workplace conversation template. Decisions will also have to be based on factors such as availability of transport for individual workers to get to a physical workplace.
Employees who have fully recovered from coronavirus may seem an obvious choice to return to work but employers should not use this as a criterion. There is currently little evidence about the extent to which people who have recovered from COVID-19 and have antibodies are protected from a second infection. It is not known how long immunity (if any) will last and antibody testing is not easily available. In addition, some people who have had the virus will be left with long term health difficulties.
Clinically extremely vulnerable workers who are shielding and those with caring responsibilities should be prioritised to remain at home, taking account of the risk of age, sex and disability discrimination and, in particular, the duty to make reasonable adjustments for workers suffering from a qualifying disability.Employers need to consider how to balance the needs of individual employees with showing fairness and consistency across the workforce, to promote inclusion as much as possible.
For further information on the different recommendations for different types of vulnerable people see our FAQ on people returning to work that are shielding or the latest Government advice on shielding.
Employers who are making decisions about who comes back may wish to check they are protected by their employer’s liability, management liability or directors and officers (D&O) insurance.
The current government advice in England (but not Wales, Scotland or NI) is to ‘actively encourage’ a return to work for those who cannot work from home, while trying to avoid public transport and maintaining social distancing. Employees are advised to avoid crowded public transport and either go by car, or by walking or bicycle. Other points include:
- The Government will provide new statutory guidance to encourage local authorities to widen pavements, create pop-up cycle lanes, and close some roads in cities to traffic (apart from buses).
- Social distancing guidance on public transport must be followed rigorously and transport operators should follow appropriate the guidance to make their services Covid- 19 Secure.
Face coverings are now advised in enclosed spaces where social distancing isn’t possible and where people encounter others they do not normally meet. This is applies to short periods indoors in crowded areas including public transport and shops.
The legal and moral position for employers on encouraging employees to return is a difficult decision to make. Whilst the government in England is ‘actively encouraging’ those who cannot work from home to return to work there is no legal obligation to do so. Different advice applies in Scotland, Wales and NI whose workers are encouraged to stay at home.
Employers have to undertake a balancing act taking into account:
- managing the health risks employees face in the workplace and travelling to work from potential exposure to the virus
- financial pressures of their business
- the fact that the furlough scheme may shortly have reduced payments before coming to an end
- the safety risks that new working practices may present to employees and others whilst the threat of infection from Covid-19 remains
- problems faced by those needing childcare*.
If employers need to make redundancies when the teams get back (as a result of an actual or anticipated decline in workload) normal redundancy selection and consultation procedures apply. Advance planning and communication are essential explaining to all staff the reasons and selection criteria etc.
Employers should fully explore alternatives and choose their redundancy selection pool carefully; this can include staff who have been furloughed, those working from home and those in the workplace. Just because staff were furloughed does not mean they should be selected in preference to others.
Employers should inform and consult and carry out a fair redundancy process. Depending on how long they have been employed employees with one or two complete continuous years of service may have claims for unfair dismissal if their employment is terminated without fair procedure.
If 20 or more employees will be redundant within a 90-day period, there should also be collective consultation, in addition to consultation with each individual employee. There must be at least 30 days’ consultation for 20-99 redundancies or if there are 100 or more redundancies, there must be a minimum of 45 days’ consultation in Great Britain (90 days in Northern Ireland). If there are no existing trade union or employee representatives in place employers will need to ensure appropriate employee representatives are elected before this. There must also be notification to BEIS before giving notice to terminate any of the relevant employees’ contracts (similar time limits apply).
You can refer to our redundancy during COVID-19 guide for more information.
It’s really important that employers manage people’s expectations about what a return to a physical workplace will mean in practice. Meeting an employer’s obligation to provide a safe working environment will mean putting in place onerous but vital health and safety measures to manage the risks from COVID-19.
This means that the workplace will look and feel very different to many employees when they return. Many of the elements people enjoy as part of their working experience, such as opportunities for human interaction, will be greatly affected by the stringent 2-metre physical distancing measures in place. This will include screens separating workstations, as well as the closing off of communal areas such as canteens and break out areas if necessary.
Managers should be guided to have open and supportive one-to-one discussions with every individual as a first step of the return-to-work process. This conversation should be two-way: as well as communicating the changes that have been implemented to keep the workplace safe, it should provide an opportunity for individuals to air any worries they have about returning to a workplace. The aim should be to reassure employees of the organisation’s steps to ensure a safe return, and prepare them for the changes that will have taken place.
All staff should also be made aware of their own responsibilities to ensure a safe working environment for themselves and their colleagues and customers.
The risks to people’s health from this pandemic are psychological as well as physical. Everyone will have experienced a challenging time during lockdown and many will have experienced anxiety due to a range of different factors, depending on their individual circumstances. People’s mental health is fluctuating, so there needs to be an ongoing conversation about well-being as part of every manager-employee one-to-one.
Individuals who have a pre-existing mental health condition, such as anxiety and depression, should have been offered support during this health crisis. But many others will now have developed a mental health condition, and so support such as an employee assistance programme or counseling should be offered to all employees.
It is likely that many employers will face this dilemma. A quick resolution to this issue would be to ask the employee to work from home if appropriate. If this is not possible and the employee could reasonably be asked to continue working, assuming that all health and safety and social distancing requirements can be adhered to, then it is possible for you to consider disciplinary action for unauthorised absence which would be unpaid.
However, we would always recommend taking legal advice before taking any action in this area, particularly because an employee who is concerned about health and safety and discloses this to you may be a whistleblower, and treating them detrimentally will result in difficulty for you as an employer.
To ensure staff are not all in at the same time there are many methods that can be adopted.
- The Government advice dated 11 May says that employers should consider staggering working hours thereby reducing demand on the public transport network, walking or cycle where possible and avoiding peak times on public transport. Employers may expand bicycle storage facilities, changing facilities and car parking to help.
- To reduce the risks of transmission in the workplace employers should limit the number of people that any given individual comes into contact with. Employers can support this where practical by changing shift patterns and rotas to keep smaller, contained teams.
- To implement the government advice, groups of employees on staggered shifts, with different hours, days, weeks and locations are all options. All forms of flexible working can be considered, including remote working. You can refer to our guide on flexible working measures for more information on staggered shifts.
- Employers need to consider the legal position of any revised working arrangements. Employees’ consent will normally be required and there should be a communication process, information and consultation about the changes. Flexibility is key and if employees understand that their safety and well-being is at the core of any changes this should help achieve consent. The best approach to change is by agreement with employees; fully explaining the situation and likely period of the changes, discussing any concerns raised.
- Any contractual changes should be implemented very carefully bearing in mind contractual provisions and different legal rights (for example, working hours, rest breaks).
- Those attending for some hours in the workplace must observe social distancing, high standards of hygiene and the other steps suggested in the FAQ about social distancing. Employers can refer to the government guidance.
A list of businesses that can start to re-open and the government roadmap to easing lockdown, can be found here
In the latest update, it has been advised that the following businesses can re-open from 4th July (providing they adhere to social distancing rules):
- Accommodation sites (B&Bs, Hotels, Self-catered Homes, Camping/Caravan Sites etc)
In order to begin restoring the arts and cultural sector, some leisure facilities and tourist attractions may also reopen, if they can do so safely – this includes outdoor gyms and playgrounds, cinemas, museums, galleries, theme parks and arcades, as well as libraries, social clubs, places of worship and community centres – guidance on opening up the visitor economy can also be found here: https://bit.ly/sectorsocialdist
Grants & Loans
The Landlord or premises ratepayer will receive the grant and rate relief.
CBILS is interest free for 12 months. Thereafter the lenders’ may apply interest. Please discuss with your lender directly.
The following banks have confirmed they will not require a personal guarantee for loans under £250K
- The Lloyds Banking Group
- The Royal Bank of Scotland Group
Other lenders may require a personal guarantee, at their discretion.
To apply for the £10k or £25k business support grant, you need to talk to the business rates department in your local authority. If you are unsure who your local authority is, you can check here: bit.ly/FindLocalAuthority you can then visit our Grants and Loans Page to find out more and find the right application link for your local authority.
If you were unsuccessful if obtaining financial aid from the schemes announced early on, you may be able to seek assistance and funding from your local authority. Across Coventry & Warwickshire, there are discretionary grant funds being made available. You can find more information on the grants and loans page.
Job Retention Scheme: Support After Furlough
The Coronavirus Job Retention Scheme which was originally scheduled to finish at the end of June has now been extended until the end of October. Staff must have been placed on furlough prior to 10th June 2020.
Redundancy pay (and probably notice pay) should be based on employees’ full salary rather than furlough pay.
The full legal position is more complex and difficulties arise as from July onwards furloughed employees may be working part time and on furlough part of the time. If redundancies follow this it may make it harder for employers to calculate the correct redundancy and notice pay amounts.
Most employers will have agreed that employees get 80% salary while on furlough. There are rather complex legal arguments about whether notice pay should be based on this 80%, or on any part time hours the employee has agreed to work or on full pre-furlough salary. Each case will depend on the wording of furlough and part time working agreements, the original contract and notice clauses.
Employees cannot work for the employer or any linked or associated organisation while on furlough, this includes doing anything that provides services to or makes money for the employer they are on furlough from.
Employers must collectively consult with a trade union or employee representative if they plan to dismiss as redundant 20 or more employees at one establishment within 90 days or less. If a trade union is not recognised there may be existing employee representatives who have the authority to be consulted. Otherwise representatives must be elected specifically for the redundancy consultation. It is not entirely clear if furloughed employees can be employee representatives
There are many methods to attempt changing terms and conditions of employment. Changing terms by unilaterally dismissing staff and offering to re-engage them on revised terms and conditions is one of the riskier methods and certainly has an adverse impact on staff morale. Sometimes employers deem this approach essential. In most coronavirus related dismissals if an employers’ need for staff has already reduced or is expected to diminish there will either be a dismissal by reason of redundancy, or it may be a dismissal for some other substantial reason.
There can be a number of scenarios:
Dismissals happen in the course of attempting to impose revised terms and conditions: this will often be an unfair dismissal. The reason will be an attempted SOSR dismissal or an unfair dismissal by reason of redundancy rather than a properly handled redundancy dismissal. The compensation payable would be unfair dismissal compensation rather than notice and redundancy pay.
Dismissals happen after revised terms and conditions have been fully agreed: this still can be a fair dismissal by reason of redundancy if full redundancy procedures are followed. The employer must be able to show that even after the reorganisation and altered terms and conditions any dismissals are wholly or mainly attributable to the fact that:
- the employer is ceasing carrying on the business where the employee was employed;
- the employer is ceasing carrying on business in the place where the employee was employed;
- the needs of the business for employees to carry out work of a particular kind are expected to cease or diminish; or
- the needs of the business for employees to carry out work of a particular kind in the place where the employee was employed are expected to cease or diminish.
Employers should consult employees individually even if there is only a temporary change to terms and conditions. This is because agreement of employees is needed to implement a salary reduction. Collective consultation may, or may not, apply, you can find more information on this here
Employees can receive awards of up to 90 days’ pay if the employer fails to comply with the obligation to consult.
Self-Employment Income Support Scheme
Unfortunately, businesses with limited trading history will not be eligible for this scheme. However, as self-employed business owner you could access other support via HMRC such as deferred tax payments and deferred self-assesments
We would recommend talking with your bank in regards to deferred payments.
Those who are ineligible for the Self-Employed Income Support scheme may be able to claim Universal Credit although those with more than £16,000 in savings may be restricted in what they are able to claim.
In this scenario, you would be eligible for the furlough scheme as outlined above. However, you would need to consider that taking this route does mean you cannot continue to work in any capacity.
The Self-employment Income Support Scheme (SEISS) does not state that the self employed need to stop working. You should, apply for universal credit as early as possible as this could potentially give you an advanced payment, you should also look to defer any tax payments where possible (i.e. VAT and Self assessment returns.)
Assuming you have a premises which you would usually operate from that bears a rateable value, you should also reach out to your local authority as you may be entitled to one of the grants that are currently being made available.
Self-employed people do not have to initiate the application. It is understood that HMRC will contact them with instructions and then the grant will be paid directly into their bank account in one lump sum payment. Effectively, the self-employed who are eligible will get their 80% of March, April and May’s money as a lump sum in June.
Self-employed income support is unlikely to be operational before the end of June. So self-employed people may need to borrow money to help with cash flow over the next few weeks until their income support application is processed. There are also business interruption loans available and the July self-assessment tax payments can be delayed for six months.
Yes. You will not be eligible to claim for this scheme if your profits on average are above £50k.
Further, you cannot claim under this scheme if you only began trading in 2019/20.
Additionally, self-employed people can claim taxable income support worth 80% of their average monthly income, though this is capped at £2,500 per month.
Statutory Sick Pay
If an employee contracts coronavirus, this should be treated in the same way as any other sickness absence in terms of payment. If the employer normally only pays statutory sick pay (SSP) during sickness absence, then this is what the employee should receive subject to meeting the qualifying criteria. Employees who are self-isolating on medical advice are also eligible for SSP.
Medical evidence is not required for the first seven days of sickness (according to the law), ie employees can currently self-certify those the first seven days and do not need to get a note from a doctor or NHS 111. After seven days, it is up to employer to decide what evidence (if any) they require from the employee. This does not need to be fit note (Med 3 form) issued by a GP or other doctor.
If an employee needs to self-quarantine (on the advice of NHS 111 or a doctor) the Government has announced new measures that mean they are entitled to Statutory Sick Pay (SSP) from day one. This includes individuals who may be a carrier of COVID-19 but may not have symptoms, and will also apply to people caring for those in the same houshold who display COVID-19 symptoms and have been told to self-isolate. The government has now announced that businesses with 250 employees or less can recover some or all of the costs of SSP, backdated to 13 March 2020, for SSP for staff absence due to coronavirus. Refunds will be handled by HMRC, with procedural detail to follow.
Employers do not always physically need to see paper proof of a right to work in the UK in order to hire. Where contact is restricted employers can still hire.
There are two main ways to check right to work documents – one of these methods is entirely digital. Even with the latest government advice employers can still hire. Urgent increases of staff are needed especially if they are engaged in a critical sector, for example healthcare or food supply.
There are many people whose work has been affected by coronavirus closures and who are seeking new roles, despite the new government scheme to help employers retain staff on the payroll.
Lay-offs and short-time working are relatively rarely used legal provisions which cover situations where there is not enough work for employees to do.
Employers should also consider the Coronavirus Job Retention Scheme and the option to furlough workers which may be more suited to the current situation. Information is available above and on the government website.
- Lay-offs: employer asks an employee to stay at home and not attend work or be paid for a temporary period.
- Short-time working: the employer requires their employee to work less than their regular contractual hours, for example a three-day week.
The government has now introduced measures (starting 23 March) requiring that people should only leave home under a list of ‘very limited purposes’. This means people should only travel to and from work where work absolutely cannot be done at home and that many businesses will now close (a full list can be found on the government website). Employers can refer to the CIPD’s series on getting the most from remote working to manage a widespread move to working from home.
Home working has many practical and legal implications including health and safety at home. Having a home working or remote working policy is always a good idea, the policy can then be relied upon if a temporary period of home working becomes necessary.
If you are importing medical equipment to help with the Covid-19 crisis, you could be eligible for relief from Import Duty or VAT. To check the eligibility of the products you are importing visit https://www.gov.uk/guidance/pay-no-import-duty-and-vat-on-medical-supplies-equipment-and-protective-garments-covid-19