Re-opening of the workplace – employment considerations

General duties placed on employers in respect of health and safety also apply to any decision to re-open the office. These are:

• Sections 2(1) and 3(1) of the Health and Safety at Work etc Act 1974, which place general duties as far as is reasonably practicable to ensure the health, safety and wellbeing of employees and others, such as contractors or workers; and
• Regulations 3, 4, 6 and 10 of The Management of Health and Safety at Work Regulations (MHSWR) 1999, which impose a more prescriptive duty on the undertaking of risk assessments and appropriate health surveillance among others.

Has the government issued any COVID-19 specific guidance on returning to work?

Yes. There are 8 guidance documents for various types of workplace, including a specific document on “working safely during COVID-19 in offices and contact centres”. The document makes it clear that all businesses must undertake their own risk based approach when considering whether to re-open workplaces.

When will we be able to return to the workplace?

Guidance documents still state that people should work from home “unless they cannot work from home” and “if at all possible”. Remote working should therefore remain the norm where possible. Returning to the office will likely include an appraisal of the need for efficiency and ease of working during the lockdown period, balanced against the need for workplaces to re-open. For now, offices should remain shut unless otherwise justified.

Are there any practical considerations that employers should account for when offices reopen?

Social distancing must be ensured. To ensure this, capacity in the workplace must be considered and numbers of staff on site should be limited to those who are absolutely necessary. Other measures to consider in the workplace include: re-arranging office space; taping off desks or areas; staggering start and finish times; banning hot desks; and where there are lifts, allowing only one person at a time etc. Business should also provide hand sanitizer and cleaning wipes to mitigate risk.

Do employers owe their staff a duty of care in relation to their travel to and from the workplace?

Not necessarily. “Work related travel” is covered by government guidance and as such a duty is present where there is travel between sites. As far as a commute is concerned, there is no specific guidance, but employers may want to consider the implications of having large numbers of staff using public transport, the higher risk of transmission and its effect on business efficacy if not controlled carefully.

Do employers need to consult with employees on their return to the workplace?

Yes. There is a statutory duty and government expectation to do this. Employers need to consult the workforce to understand concerns and to assist in preparing a safe environment to return to. The consultation should include what measures are being taken and how they will practically be implemented.

We have undertaken all relevant risk assessments and we are satisfied the workplace is safe to return to. What happens if some employees still refuse to return to work?

Forcing employees to attend work, and initiating disciplinary/dismissal proceedings against them should they refuse, could result in claims against employers in the Employment Tribunal. Possible claims include whistleblowing and health and safety detriment/dismissal claims under section 44 or section 100 of the Employment Rights Act 1996 respectively. Before initiating any sort of proceedings against employees consider their reasons for refusal i.e. concern for their own wellbeing; concern for the wellbeing of a vulnerable person with whom they live; pregnancy; and childcare issues etc.