Masterclass in preparedness

With lockdown easing up and the prospect of returning to work causing many to feel anxious — due to spending the last three months being told to stay at home, respect social distancing and losing touch with a work routine — it’s vital for workplaces to evaluate the best ways to re-introduce staff successfully and safely.

Human resource and L&D experts, DPG, have created a masterclass in preparedness addressing important issues that HR departments are responsible for. It’s important for any employer in charge of making decisions to draw on HR expertise and to follow the latest government advice and guidelines.

In an attempt to be prepared, let’s take a look at some of the issues that HR departments may face.

What if an employee doesn’t want to return to work?

It’s important for any employer in charge of decision-making to draw on HR expertise and to understand their employees’ concerns by demonstrating transparency and accountability.

Risk Assessments should be conducted as a standard early step prior to anybody returning to work. It may be wise, or even a necessity, to have Unions or Employee Representatives involved, but, if this doesn’t apply, then offer the opportunity for staff to be part of the Risk Assessment Committee to help ensure the employee voice is heard and their fears and issues are taken into consideration.

But what if employees don’t want to return to work?

Ultimately, if a workplace has been equipped to maintain social distancing under Government guidance with screens, PPE (Personal Protective Equipment), etc in place, then employees will be told that they must return to work and normal workplace rules (and employment law consequences) will apply to those that refuse.

The furlough scheme will continue to be available in the UK until the end of October 2020, so for workplaces where there is a gradual return of staff, it might be possible to select staff based on their willingness to return first – some staff are eager to get back to their previous ‘normality’.

This may not go down well with all staff of course, so it is important to be open and communicative about mental health and wellbeing and offer support to those that need it

What if employees think the workplace is unsafe and are quoting S.44 ERA 1996?

Despite all efforts to follow Government guidance and safety measures, some staff may still refuse to attend work on health and safety grounds. Section 44 of the Employment Rights Acts 1996 (S.44 ERA) grants employees the right to not suffer any detriment if they reasonably believe to be in serious and imminent danger which they cannot be reasonably expected to avert.

The current understanding is that COVID-19 is capable of being considered a serious and imminent threat, meaning employees are entitled to not attend work (or leave work if they have attended) and not suffer a detriment (i.e. be disciplined or dismissed).

What do you do if an employee refuses to attend work due to COVID and cites S.44 ERA?

Perhaps the greatest risk to the business is that of copycat behaviour. As there is no case law to establish how the employment tribunals will rule on the issue of pay — relating to COVID-19 specifically — mitigation of risk might be the most sensible approach. If an employer continues to pay an employee who refuses to attend work, citing S.44 ERA, then there is no incentive for other employees to attend work either as they can also refuse to attend work, cite S.44 ERA, and be paid in full to stay at home.

If possible, and in accordance with Government guidance, employees should be told to work from home (if possible) or remain on furlough (if still available). If either of these is not possible, and the employee continues to refuse to attend work, a period of unpaid leave could be granted (and cover for their role organised if appropriate).

If a court later rules that not paying them is unlawful, the remedy would be to pay them what they would have earned (at the time, not the current rate of earnings). Therefore, employers could accrue the earnings so that funds are available to pay the staff their unpaid wages if ordered to do so (which might possibly be a few years later). This means that the risk sits almost entirely with the employee.

It’s important that employees should not be disciplined for refusing to attend work in these circumstances. In fact, Section 100 of The Employment Rights Act 1996 protects UK workers from being dismissed on health and safety grounds and any dismissal where Section 44 did apply, and Section 100 now applies, would be regarded as automatically unfair.

Must/can employees be COVID-19 tested as part of the control measures?

One control measure that employers might consider introducing is the routine testing of all staff entering the premises or working at client sites. This is a thorny issue as not all staff are willing to be tested or to even have their temperature checked. There is also the issue of health information being regarded as a special category of personal data under GDPR (General Data Protection Regulation).

ICO (Information Commissioner’s Office) states that processing special category data to protect someone’s life is a ‘vital interest’ and so collecting, processing and storing this data can be justified, even without employee consent. However, consent is always preferable so if an employer was intending to conduct health assessments on staff then I would strongly advise that they read the ICO Guide on Workplace Testing found on the Coronavirus hub. Employers will need to update the Employer Privacy Notice and communicate transparently with all staff.

Employees that refuse to be tested, without a justifiable reason, might be managed under the company’s disciplinary policy for failure to follow a reasonable management instruction. COVID-19 is a notifiable disease so if cases of COVID-19 are identified then the relevant authorities must be informed and the NHS Test and Trace service will be activated.

Not all workplaces will find it is appropriate or necessary to introduce testing as a control measure. Industry-specific guidance is available from the gov website but be sure to keep checking for updates as it continues to be updated regularly.

Can employees refuse to use PPE such as not wanting to wear masks or face coverings?

Most workplaces are making it possible for staff to wear face coverings if they choose to do so, but in some settings, it is mandatory to wear gowns and a face mask which is certified to filter coronavirus (such as N95). The Company Risk Assessment will determine which staff must and which staff can wear PPE.

The UK Government is now advising that people should wear a face-covering in public spaces (including workplaces) where social distancing is not possible. This is to slow down the spread of the virus and is aimed mainly at reducing the number of particles entering the atmosphere around the wearer, and not protecting the wearer from those around them.

Employees that refuse to wear PPE deemed mandatory would be breaching health and safety conditions and can be managed under company workplace rules and policies (i.e. the Disciplinary Procedure).

What to do if employees become sick or are contacted by the NHS Test and Trace scheme?

Testing is now available for any person suspecting that they may have COVID-19. A test can be organised by the employer or by the individual themselves. Tests can be organised online using the NHS website.

If a person is contacted by the NHS Test and Trace service they will be told to self-isolate for 14 days from the day that they were last in contact with the person that has tested positive. If this person develops symptoms they should order a test and the cycle begins again for them.

The Test and Trace service is explained in full details in the government guide. If it is deemed that there is a localised outbreak of Coronavirus in the workplace (a cluster or a hotspot) then the workplace may be forced to ‘lockdown’ temporarily.

How to strategically plan for staff returning to work after COVID?

Now that we understand more about how coronavirus is impacting us on a daily basis and how to manage the practical aspects of returning more people to the workplace, we can start to improve our preparedness. But it is important to remember that any strategy built around the reopening of the workplace must be developed as an emergent strategy as we could be forced into lockdown again at any given moment. Remember COVID is riddled with VUCA – Volatility, Uncertainty, Complexity and Ambiguity.

Being aware + being ready = being prepared

Despite the uncertainty, there are steps that HR professionals can take now to prepare for returning workers:

1. Read government guidance and NHS information about the coronavirus. Understand as much about this virus as you can so that you have sufficient knowledge to answer questions and predict behaviours.
2. Fully brief yourself on the Coronavirus Job Retention Scheme (CJRS) as it develops so that you can plan and prepare for the tapering off of government financial support. More information will be released by the UK Government on June 12th 2020.
3. Meet with business leaders to understand the business strategy and ask questions about how healthy the company is and if there is likely to be any impact on the staffing levels (plan ahead with this).
4. Spend time with operational managers to understand what support they require to get the practical measures in place ahead of reintegrating people back into the workplace. Be involved in the Risk Assessment process and establishing new control measures to mitigate risk. Ensure mental health and wellbeing support is available and communicated.
5. Be available to staff as a point of contact to field any concerns and anxiety. By being ‘the gatekeeper’ you are more likely to be able to manage anxiety and respond to concerns quickly and effectively.
6. Monitor, monitor, monitor. Don’t assume that once people are back to work that this is an end to it. The situation can change very quickly with track and trace so the business needs to continually review its strategy and business continuity plans to survive any further unplanned disruption.

HR is needed now more than ever as employers and employees alike are forced to adapt to these unprecedented times. The safety and wellbeing of your workers, both physically and mentally, and the latest government guidance should always be at the forefront of any decision making regarding return to work policies. Thankfully there are resources available.

Contact DPG or join the DPG Community, a hub of professional development and human resources to discuss issues with fellow HR professionals. We’re all in this together.

DPG accept no responsibility for anyone acting on the tips and ideas in this blog as circumstances, the law, and guidance is changing by the day. Individuals, employers and organisations are advised to consult HR specialists and legal experts to explore the particular situation and the wider context at the time you need to.