Part 2 of our blog looking at the 10 things you need to consider when getting your workforce back to work.
6. Flexibility
Employers and their workforce have had to adapt and be flexible over the last three months and realistically this will need to continue going forward whether that is in respect of the place of work or the working pattern. It is likely that more workers will want to continue working from home at least part time and that employers will need workers to continue working from home to minimise then number of people attending the workplace. Going forward it is advisable to have this clearly documented to protect both parties. Where this is not intended to be permanent this should be stated including how often or in what circumstances this will be reviewed.
Employees with more than 26 weeks service are entitled to make a flexible working request for a permanent change to their place of work, the number of hours they work, or the times of work once every 12 months and employers are required to genuinely consider the request. Employers are likely to find it harder to turn down requests for home working or alternate working patters than pre-Covid-19 if the employee can show that it has been working during the period of lockdown. For an employer to turn down such a request it must be able to justify it under one of the grounds set out in section 80G of the Employment Rights Act 1996 and to reduce the risk of being defeated in a claim, have evidence that it has considered it and genuinely cannot accommodate the request.
Where the workforce will be working more remotely it is important to have a homeworking policy setting out the expectations on hours, equipment, workspaces, the right of the employer to enter the home to assess risk or to install, fix or remove equipment.
7. Flexible Furlough Scheme (FFS)
The Coronavirus Job Retention Scheme continues in its current form until 30 June. From 1 July the FFS means that employers can bring back workers on a part-time basis and still claim support from the government to top up wages for the hours not worked. Workers must be paid 100% of their normal rate of pay for any work undertaken but can remain furloughed on at least 80% of pay for the remainder of their normal weekly hours. It is likely that the agreements used to furlough staff previously will need to be updated to reflect the fact that the requirement is no longer not to work, but to work flexibly, as and when required by the employer between 1 July and 31 October 2020 when the CJRS will cease to exist. Such a requirement will be a change in terms and conditions of employment and must be permitted by the contract of employment or agreed with the worker to avoid a breach of contract.
Employers can only access the FFS in respect of workers that have been furloughed for a minimum of three weeks prior to 30 June which means it is now too late to furlough those that have not been furloughed previously.
From 1 August 2020 the level of financial support is being reduced so that the cost to employers is gradually increased on a monthly basis until 31 October when government financial support is expected to cease completely.
8. Extremely vulnerable workers
Those that are extremely vulnerable due to underlying health conditions (as listed on the gov.uk website) are strongly advised to continue shielding until at least 30 June 2020. As such they should be permitted to continue working from home or, where that is not possible, kept on furlough leave or statutory sick pay. If alternative duties can be found that would enable a vulnerable person to work from home that should be facilitated. Often those defined as extremely vulnerable people will meet the definition of disability as set out in section 6 of the Equality Act 2010. If a disabled person is put at a substantial disadvantage as a result of a provision, criterion or practice, or a physical feature of the workplace, the employer us under an obligation to make reasonable adjustments to remove the disadvantage and a failure to do so may result in a claim for disability discrimination being brought. Reasonable adjustments should not be imposed on workers, so it is important to discuss the options with the disabled person before any decisions are made.
9. Transport to work
For those that must attend the workplace avoidance of public transport is advised. This may see an increase in people walking, running, cycling and driving to work than before. Employers should consider whether they can accommodate an increased number of bikes safely, and whether they can subsidise parking or perhaps make arrangements between those that previously drove and are now working from home and those that need to attend work but previously used public transport. Where there are changing facilities consideration will need to be given the to the cleaning of these facilities and employers should consider providing cleaning products and requiring staff using those facilities to clean them after use with a full daily clean by cleaning staff. It will also be necessary to consider where staff are permitted to put their travel clothes during the working day. For those that must use public transport some flexibility in working hours is advisable to reduce the need to travel at peak times.
10. Ongoing review and adaptation
Whilst nobody can say how long we will live in this new normal it is safe to say that the world has changed and is likely to continue changing for the foreseeable future. Employers need to stay on top of government guidance and review and adapt their processes regularly. Communication will be key to ensuring workplace health and safety and an engaged workforce. Involve employees, update them regularly and keep a record of what has been done and why.
Please note that there are different rules in force in the different counties within the UK. This guidance note is relevant to England.
This guidance note does not constitute legal advice and specific legal advice should be sought to deal with specific issues.
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