The Employment Law Blog

Getting the workforce back to work: 10 things to think about – Part 1

The first thing to point out is that as at 11 June 2020 the government guidance is still that any work that can be done from home should be done from home. This blog sets out considerations for businesses as the workforce returns to working from business premises on what is expected to be a gradual basis where feasible.

1. Risk Assessments

All employers are required to have a risk assessment in place however the risk posed by Covid-19 needs to be specifically addressed and as such risk assessments should be updated to address the current situation. It is advisable for employers to share their risk assessments with employees and to invite them to comment. Employers with 50+ employees are expected to put their risk assessment on their website.

Guidance from the Health and Safety Executive can be found here

2. Communication

Communication with employees is key to a co-operative workforce. Advise employees what measures have been put in place to protect their health and safety before asking them to return and invite them to comment or make suggestions. Workers can leave the premises or refuse to attend if they reasonably believe someone is in serious and imminent danger. You can minimise the risk of this happening by ensuring that they understand how any risk has been minimised.

3. Providing a safe working environment

Employers are under a duty to provide a safe working environment. The biological threat posed by Covid-19 is a risk employers need to minimise to reduce the risk of breaching this duty. Employers must assess the workplace with a view to reducing the risk of contamination. As the virus can survive on surfaces for extended periods depending on the conditions it will be important to reduce clutter (for want of a better word) for example by introducing (or enforcing) clean desk policies, increasing the frequency at which surfaces are cleaned, having deep cleans more often, and reducing the number of people using communal spaces or equipment.

4. Facilitating and enforcing social distancing

The current requirement is for people who do not live together to remain two metres apart (although this may change in the near future). This will cause problems where workstations are closer together than this. Employers will need to move workstations so that they are further apart and so that people do not work face to face unless there are screens between them. It is advisable to put distance markers on the floor and to implement a one-way system where possible. If possible, increase the number of people gradually so that such systems can be assessed and adjusted if necessary. It is also a good idea to stagger start and finish times and if a rota system is implemented to have the same people working together on each occasion to minimise the number of different people encountering one another.

However, having systems in place is only half of the solution, a good system is only any good if it is followed and enforced. Workers should be made aware of the importance of complying with the systems, the reasoning behind them, and the consequences of not following them. Harsh though it may seem, these systems are being implemented for health and safety reasons and employers ultimately are responsible at a criminal level for ensuring health and safety. As such, those that do not comply should be subject to disciplinary procedures.

5. Carrying out temperature checks

Temperature checks are a bone of contention and an option that needs to be considered carefully. Somebody’s body temperature is special category data and employers need a legal basis for processing that data or risk being in breach of Article 9 of the General Data Protection Regulations 2016 (as implemented by section 10 of the Data Protection Act 2018).  The size and nature of your business is likely to be a factor to consider, this measure may be more appropriate where large portions of the workforce cannot work from home. One low risk but possibly costly option is to provide workers with a personal thermometer and require them to take their own temperature before they leave home for work with a requirement that if their temperature is elevated, they must remain home and report to HR. It may be appropriate for them to retest themselves an hour later to see if anything, such as physical exercise or a hot flush, was causing the increase temporarily.

If it is decided that temperatures are going to be checked on site considerations include whether to store the results of the tests (preferably not), who will take the temperature measurements, and what will the protocol be if somebody has an elevated temperature. It is advisable to consult on this issue with the workforce before it is implemented to understand any objections or concerns.

You can read part 2 here!

For further information please contact Kelly Gibson at kelly.gibson@tayloremmet.co.uk or 0114 218 4307.

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.

Kelly Gibson

Kelly is knowledgeable and experienced at helping both employers and employees on both contentious and non-contentious matters covering all aspects of employment law. For more information on this topic email Kelly.Gibson@tayloremmet.co.uk or call her on 0114 218 4307.

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