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Coronavirus – Guidance for Employers
Getting Employees “Back to Work”

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The government has recently announced the next wave of lifting of restrictions and they are quite extensive.  The social distancing recommendation is dropping from 2m to 1m+, bars and restaurants will start to open, and we can all finally get a haircut! 

This may very well be the time when you’re starting to think about getting people back to work.  When we talk about “back to work”, we’re talking about getting people back to a physical location and we’re not suggesting that people having been working whilst they’ve been at home.

The purpose of this guidance note is to help prepare you for some of the challenges that this is likely to present.  

We strongly advise you to get in-touch with us on 0203 319 1649 to seek tailored guidance before you take any actions.

As with all of the guidance with coronavirus, we need to remind you that these are unprecedented times and it is unclear as to how employment law will be applied in these exceptional circumstances.

The information that follows has been compiled with input from government websites, Acas and HMRC (the only official resources that we’re happy to use as these are the institutions who will be responsible for enforcing the rules as we move forward), but the reality is no-one really knows for certain how actions that businesses need to take now will be interpreted later.

This post is part of our Returning to Work series of posts we have created over the past few days regarding the issues associated with getting employees back to work.

Can people come back to the office now?

The rules continue to be that if your employees can do their jobs from home then they should continue to do so. 

We’ve looked high and low and can’t find any target date as to when this position is going to be reviewed. 

It’s clear that, particularly in large cities, the return of everyone back to offices is likely to place significant demand on public transport where social distancing is almost impossible to maintain during peak hours.  So, at the moment, there are a lot of people who are going to continue to be home based for much of the time.

There very well may be roles which require people back in work – whether that be a return to an office or return to a bar, shop, or restaurant.  For these people, you do need to ensure that you are providing a “Covid Secure” workplace.  Note: If you aren’t meeting the guidelines set out by the government then an employee will be within their rights to refuse to return.  We’ll be writing a specific guidance note on health and safety considerations in the coming days.

Can my employees refuse to come back?

Employees cannot refuse to return to work if you are operating within the law, providing a safe working environment and an individual cannot perform their role from home.

The biggest concerns that we are hearing being raised at the moment relate to the use of public transport.  Some individuals have been confused by the message “avoid public transport if you can” and have believed that this meant that if they had to use public transport to get to work then they couldn’t return to work.  This isn’t the case.  The guidance is to use alternative transport (walk, run, cycle, car) if possible but that doesn’t mean that you can’t use public transport if that’s what’s required in order for you to return to work.

Another area of confusion has arisen from employees who are living with individuals who are shielding.  Some of these people believe that the requirement is for them to shield too.  Again, that isn’t the case.  People who are living with individuals who are required to shield can go to work with the idea being that they put appropriate infection control measures in place in the home environment.

What about people who are shielding?

The current plan is that shielding will be paused from 31st July 2020 at which point individuals will be expected to return to work.  The Coronavirus Job Retention Scheme is continuing unchanged until the end of July so you should continue to furlough individuals who have been required to shield.  (Refer to our previous guidance for key dates associated with the Job Retention Scheme).

My team have liked working from home and some of them don’t want to return to the office when we do re-open.  What do I do?

We are already seeing an increase in the number of clients who are receiving emails like “I’ve been thinking and actually, I’d like to move to working from home on a permanent basis” and there will be lots more to come.

A request to work from home on a permanent basis is a request for flexible working and should be dealt with in line with your flexible working policy. 

Every employee who has worked for you company for more than 26 weeks has the right to request flexible working.  A flexible working request can be a request to reduce hours, change to working pattern or change to work location.  Therefore, if someone wants you to consider making home their permanent place of work then they need to submit their request in writing, from which you need to hold a meeting with them to discuss their request and then you have 3 months to consider the request.

You can agree to the request on a trial basis.  When a request is agreed, it becomes a permanent change to the terms and conditions of employment.  Note: only one request for flexible working can be submitted in any 12-month period.

Clearly, during the past 4 months, many organisations have had to adapt, and quickly, to a totally different way of working.  There could have been a real reluctance to allow home working prior to Covid-19 and you may even have turned down home working requests because home working didn’t work for your business.  But you’ve now proved that it does.  Before you rush to make decisions on this, we’d encourage you to be a little cautious.

Home working has potentially worked because all of your employees and all of your clients have been in exactly the same position.  This means that conducting video meetings has worked well as everyone is sat at home, with potentially some additional background child/pet noise, but largely on their own and able to speak freely.  This won’t be the case as people start returning to work.  You could quickly find yourself in a position where some of your team are physically present, some are at home, and you’ve not quite got the technology to deal with a meeting that is part in person and part via video links.  Your clients may have been happy with you being at the end of the video call when there was no viable alternative, but will they still feel that way when the world opens up again?  You’ve been able to take a light approach to remote home working risk assessments during Covid-19 but, if allowing people to work from home regularly becomes a permanent change then you will need to arrange for appropriate health and safety assessments to be done in people’s homes.

And, and, and…

None of these issues are insurmountable but there is potentially more to think about than you may have realised.  It was relatively straight forward to send people home with a screen tucked under their arm and you’ve managed just fine but we’re reminding you that these have been exceptional circumstances.  You may very well conclude that home working is right for your business and it’s the way you want to go.  All we’re encouraging is that you hold off making large scale, permanent changes whilst there is still so much uncertainty.

These are very challenging times and we can’t stress enough the importance of open and honest communication with your employees and in getting tailored professional guidance (preferably from us!) before you take any action.

Employment laws still apply

When making changes to working hours or other terms and conditions, assuming your employment contract does not already allow for that, normal employment law applies – refer to our post on employment law: Job Retention Scheme – Employment Laws Still Apply (23-Mar-20).

Also, the employer must be careful not to discriminate in deciding who to offer furlough too – refer to our post on furlough discrimination: Furlough Decisions – Beware of Unintended Discrimination (24-Mar-20).

“Returning to Work” Series

As businesses now start to consider how they can get back to some semblance of normal, we are providing a series of blog posts providing guidance to business owners and managers regarding the issues with getting employees back to work.

The articles in this series so far are:

In the coming days we will also be publishing a post on Health and Safety considerations when returning to work.

“Guidance for Managers” Series

You can find all our guidance notes on managing your business during the coronavirus crisis in our Coronavirus COVID-19 – Guidance for Managers series.

If you’d like help with the impact of Coronavirus or any other HR matter, contact us on 0203 319 1649 or fill in the form below.

Contact Us

If you’d like help with the impact of Coronavirus or any other HR matter, contact us on 0203 319 1649 or fill in the form below.

Contact Us

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