By Angela West 13th of May 2020
We all read the news yesterday about the Government proposals to extend the current Furlough Leave under the Coronovirus Job Retention Scheme until October 2020. Reports which we have read further suggest that the extension to the Furlough Leave Scheme might enable some employees to return to work on a part-time basis.
With a quarter of the workforce, some 7.5 million people now covered by the Furlough Scheme, this extension should enable employers to really think about and plan the reintegration of their employees back into the workforce. Any employers considering redundancies of more than 100 jobs must comply with the 45 day consultation. This would have meant that the 18th May 2020 was the last day in which employers could start this process before the Furlough Scheme was due to end.
It is hoped that by extending the Furlough Leave Scheme and potentially modifying the terms to enable employees to return to work on a part-time basis, employers can consider restructuring in a way which will hopefully reduce the number of likely redundancies going forward. Further information regarding this will follow as and when we receive further guidance.
In the meantime, with the restrictions on lockdown being gradually eased, certain sectors being allow back to work, and people in England who cannot work from home being encouraged to return to their workplaces, employers need to now really think about how they are going to get their employees back into the workplace in a way that enables your business to function whilst also adhering to the Guidelines on health and safety. Many will welcome working towards the reopening of society, but how can an employer achieve this safely?
The reintegration of employees will of course be different for every employer, and every workplace will no doubt present different and unique challenges. Ensuring the health and safety of your employees, workers, contractors, customers and visitors whilst the pandemic subsides is going to require a considerable amount of careful planning and flexibility for all concerned. Risk assessments, PPE, social distancing, and how we all behave in the workplace will be a daily feature of working life for the foreseeable future.
Health and safety concerns are not aided by the lack of clarity as to what employers should and should not do in order to put into place sufficient measures so as to adhere to Government guidelines. Of course, even if as an employer you are able to put into place sufficient measures to ensure safety whilst in the workplace, the other headache employers will have is what to do with those employees who have no option but to travel to work using some form of public transport.
As more Employers are now looking to this reintegration, we are being asked various ‘tricky’ questions about what employers can, and should do, such as:
Can employer’s temperature test on entry to a workplace?
This is something we have seen in other jurisdictions and is certainly a step recommended by the World Health Organisation. However, temperature checking employees brings into question a whole host of queries regarding the processing of sensitive data about employees and potentially a business holding sensitive data about visitors, especially if those temperature checks are extended to visitors. It is quite clear that guidance on the operation of such tests and the handling of the result and data is much needed.
Can an employer force a worker to take a Covid-19 test if available through the Government?
This question certainly resonates with previous scenarios when employers have asked employees to take flu jabs, or undergo drug and alcohol testing measures. It is suggested that this is something that an employer probably would not be able to do but could in some circumstances be deemed reasonable. For those working in a particular sector such as healthcare or working with vulnerable people, the reasonableness of such request may be more compelling than perhaps an employee or worker who is not customer facing or who works in an office by themselves for example. Once again, the need for flexibility and reasonableness is paramount. Our view is that if there is a compelling reason to request your workforce to take such tests, and you can process data in such a way that ensures compliance with GDPR this may well be reasonable and proportionate.
Can an employee bring a claim against an employer if they feel that they have been subject to a detriment for raising health and safety issues?
The Employment Rights Act protects workers who make protected disclosures from detriment and dismissal concerning health and safety. If an employee raises concerns about health and safety, and an employer thereafter subjects that employee to a detriment, then providing the employee satisfies the requirement for a protected disclosure, it is likely that employer may well find themselves having to defend a whistleblowing claim.
These are just a few examples of questions we have been asked in the last 48 hours, and we are sure there will be many more as we embark on trying to get from the ‘new norm’ back to the ‘old norm’.
It is essential for employers to ensure that they plan now, and put in place steps to ensure the integration into the workforce is a successful and productive one whilst also discharging their duty of care. Such a balancing act should not be underestimated.
If you require any help or assistance on please do not hesitate to contact a member of the employment team.