Preparing to Return to Business as (Un)usual – Road Maps to the Restart
Following the Prime Minister’s address in the evening on 10 May, many businesses were left confused with regard to how and when to facilitate the new plan for workers to return to the workplace unless they can work from home, but not to use public transport to do so. Within the following 24 hours the Government published some further details of its roadmap for coming out of lockdown, OUR PLAN TO REBUILD: The UK Government’s COVID-19 recovery strategy.
This further guidance (which the Government states was put together with vast consultation with over 250 businesses, the TUC and the CBI), the Prime Minister’s subsequent address to Parliament and the daily briefing on 11 May clarified that a change in emphasis is intended to apply from Wednesday 13 May, but further that the Government did not expect employees to go back immediately. However, the guidance is that employers should start taking steps to ensure the workplace is “COVID Secure” for their workers to return. The plan confirms that:
- For the foreseeable future, workers should continue to work from home rather than their normal physical workplace, wherever possible, not least as this will minimise the risk of overcrowding on transport and in public places. The plan also makes clear that social distancing is to be followed rigorously on public transport and the use of home-made face-coverings is recommended.
- All workers who cannot work from home should travel to work if their workplace is open. Sectors of the economy that are allowed to be open should be open, and the plan goes further in this respect than the PM’s address to include food production, construction, manufacturing, logistics, distribution and scientific research in laboratories. The only exceptions are those workplaces such as hospitality and non-essential retail, hairdressers, cafes, theatres etc, which during this first step the Government is requiring to remain closed.
- As soon as practicable, workplaces should follow the new “COVID-19 Secure” guidelines, which are detailed below.
- It remains the case that anyone who has symptoms, however mild, or is in a household where someone has symptoms, should not leave their house to go to work. Those people should self-isolate, as should their households.
New Workplace Guidance
The new guidance covers 8 workplace settings (as opposed to being sector specific) and was published by BEIS in the evening of 11 May.
See below for the specific guidance for different settings:
8. Vehicles (covering couriers, mobile workers, lorry drivers, on-site transit and work vehicles, field forces and similar)
The guidance applies to businesses currently open and also includes guidance for shops which may be in a position to begin a phased reopening at the earliest from 1 June. Guidance for other sectors that are not currently open will be developed and published ahead of those establishments opening to give those businesses time to plan. The government have also said they will also shortly set up taskforces to work with these sectors to develop safe ways for them to open at the earliest point at which it is safe to do so, as well as pilot re-openings to test businesses’ ability to adopt the guidelines. Please see Health and Safety Update – How do Businesses now remain COVID-secure.
The guidance follows a similar structure for all 8 workplaces and sets out practical steps for businesses, focused around 5 key points, which BEIS states should be implemented “as soon as it is practical”. The detail comes back to the general premise that an employer is under a duty under existing Health and Safety legislation to provide a safe place of work. The guidance states:
- All reasonable steps should be taken by employers to help people work from home. Those who cannot work from home and whose workplace has not been told to close should be working, once the employer has confirmed when their workplace will open.
- Employers will need to carry out COVID-19 risk assessments in consultation with their trade unions. If they are not unionised employee representatives should be appointed and collectively establish what guidelines to put in place. The results of the risk assessment should be shared with the workforce. Employers should consider publishing the results of their risk assessments on their website if possible, and all businesses with over 50 employees are expected to do so. Whilst publication is encouraged, employers should be reminded that this is not a legal requirement and that, providing they carry out a suitable risk assessment and, where they have 5 or more employees, they record the significant findings of any such assessment, then they are fulfilling their legal obligations.
- In line with the relevant guidance, Employers should re-design workspaces to maintain 2 metre distances between people wherever possible, by staggering start times, considering shift systems, creating one way walk-throughs, opening more entrances and exits, or changing seating layouts in canteens.
- Where people cannot be 2 metres apart, employers should manage the transmission risk. They should look into putting barriers in shared spaces, creating workplace shift patterns or fixed teams, minimising the number of people in contact with one another, or ensuring colleagues are facing away from each other. With this in mind the guidance also suggests employers should look to create distinct working groups to minimise the different number of people employees have contact with.
- Workplaces should be cleaned more frequently, paying close attention to high-contact objects like door handles and keyboards. Employers should provide handwashing facilities or hand sanitisers at entry and exit points.
A downloadable notice is included in the documents, which employers should display in their workplaces to show their employees, customers and other visitors to their workplace, that they have followed the guidance.
The guidance also addresses the issue of vulnerable workers (but not the extremely clinically vulnerable who are shielding) who are unable to work from home. The guidance states that they should be offered the option of the safest available on site roles, enabling them to stay 2m away from others. If they have to spend time within 2m of others, employers should carefully assess whether this involves an acceptable level of risk taking into account specific duties to those with protected characteristics (so, for example, expectant mothers are entitled to suspension on full pay if suitable roles cannot be found).
The above guidance is detailed and will be a lot for employers to digest and implement especially for employers who may not have dedicated H&S support on site. However, bearing in mind that the Government have also just announced an additional injection of £14 million for the Health and Safety Executive, which will inevitably boost their resources, employers need be mindful of an increased number of site inspections by the regulator and the need, if asked, to evidence a safe system of work. Any failure to do so could result in employers receiving an enforcement notice which has the ability to prevent companies from operating until specific requirements have been met or, in more extreme circumstances, a criminal prosecution.
We recommend you consider also your workplace insurance policies and that you are covered with your plans to re-open. We will produce further guidance, but initially we predict that employers may face resistance from employees who may be concerned that the workplace is not safe to return. Tackling this will involve:
- Ongoing engagement with workers, including through trade unions or employee representative groups, to monitor and understand any unforeseen impacts of changes to working environments.
- Awareness and focus on the importance of mental health at times of uncertainty. The government has published guidance on the mental health and wellbeing aspects of Coronavirus.
- Using simple, clear messaging to explain guidelines, using images and clear language, with consideration of groups for which English may not be their first language.
- Using visual communications, for example whiteboards or signage, to explain changes to schedules, breakdowns or materials shortages without the need for face-to-face communications.
- Communicating approaches and operational procedures to suppliers, customers or trade bodies to help their adoption and share experience.
We are also expecting an increase in employment related claims and employee relations issues linked to the return. These could include concerns regarding H&S/whistleblowing, grievances between staff if social distancing is not being adhered, deductions from pay linked to phased returns and unfair dismissal claims. There are also employees who will be making requests to work from home on a regular basis. This is a very sensitive balancing act to re-start the economy whilst protecting the health for workers and to maintain the key “R” rate of infection of the virus to below 1. See our Coronavirus: Employee Benefits and the return to work article for our thoughts on how employers may want to consider restructuring their employee benefits package to ensure that their employees feel safe and supported to return to work.
If you would like to talk through the consequences for your business, please email us and one of our team will get in touch.
The content of this page is a summary of the law in force at the date of publication and is not exhaustive, nor does it contain definitive advice. Specialist legal advice should be sought in relation to any queries that may arise.
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