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Post-lockdown employment considerations

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It is anticipated that the dire economic consequences of the current lockdown will require there to be a partial easing of the lockdown restrictions in the coming days and weeks, allowing some additional businesses to re-open in a phased manner, and allowing more construction work to recommence.

Government guidance for easing lockdown

Draft guidance has been prepared by the Government to get people back to work.  Although the guidance has not been widely published,  we understand that it covers seven workplace settings including factories, hospitality, retail, working in people’s homes and vehicles, and finally,  working outdoors (where we can probably expect less rigid requirements to be put in place).

The draft guidelines are understood to encourage the employer to do things like:

  • Undertaking risk assessments – these will need to be general (to cover staff, customers, suppliers etc.) and specific (e.g. individual risk assessments for those who are considered to be vulnerable including disabled or pregnant staff, most of whom are likely to be working from home in accordance with continuing Public Health England guidance).
  • Providinge appropriate personal protective equipment (PPE) – the obvious issues here will be whether that PPE can be sourced, and if so, whether it should be if it will reduce available PPE for health and social care providers.  This may depend on whether there is a mandatory regulatory requirement e.g. for face masks to be worn depending on the nature of the work, or whether it is simply advisory, in which case it may be acceptable for ‘home-made’ masks to be worn. In certain workplaces, Perspex screening (of the type we see currently in supermarkets at the checkouts) may be advisory.
  • Introducing unspecified improvements in hygiene and sanitation – presumably this will refer to additional cleaning measures in the workplace, and access to hand-washing facilities and/or hand sanitiser (if it can be sourced).
  • Reducing hot-desking - with staggered seating, possibly tape on desks/floors to mark out 2m spacing.
  • Introducing rules  for communal areas - restrictions on access to lifts; restrictions on numbers accessing communal spaces, with staggered lunch breaks and social distancing measures being encouraged at other times.
  • Introducing staggered shift times – although employers may have to consult with staff to ensure that there is no discriminatory effect for those who will be caused childcare or other caring difficulties, or travel issues.

The hospitality industry may be encouraged to remain closed for the time being, with only takeaway food available from cafes and restaurants; hotels may be asked to have restricted occupancy levels, with staggered check-in and check-out times, etc. 

Other guidance

The British Retail Consortium has also released its own non-exhaustive recommendations for non-essential retail businesses ahead of the expected relaxation of lockdown. The recommendations include:

  • limit the number of customers in store
  • place markings outside the store to set out appropriate queue spacings
  • encourage customers to shop alone where possible
  • encourage staff to have regular handwashing breaks
  • stagger breaks to avoid crowding
  • provide gloves, masks and visors
  • reassure staff about any safety concerns they have.

Reaction

The TUC has criticised the Government’s draft guidance as falling “far short of giving any guarantees to workers about their health and safety”.  However, in my view this seems to go too far: employers’ duties in the main extend to ensuring the health and safety of employees as far as reasonably practicable - not to guarantee their safety.

Additionally, we must remember that employees also have health and safety responsibilities at work.  The Health and Safety at Work etc. Act 1974 requires employees to:

  • Take reasonable care for their health and safety and that of anyone who may be affected by their acts or omissions while at work.
  • Co-operate with their employer so far as is necessary to enable compliance with any statutory duty or requirement relating to health and safety.

Employees will therefore be expected to respect social distancing, wear PPE, etc.

Legal implications

When lockdown restrictions are lifted, employers will need to:

  • Give notice to furloughed employees to return to work on their previous (or altered) terms and conditions;
  • Consider whether redundancies are an inevitable consequence of the financial effects of the pandemic – if so to follow correct redundancy selection procedures;
  • If applicable, provide new terms and conditions (or a variation letter) to returning staff to confirm any contractual changes;
  • Review their policy documents to ensure they remain fit for purpose – temporary amendments may need to be made to Health and Safety Policy documents and related procedures to incorporate Covid-19/social distancing related changes.

For more information on our employment services visit our employment law page.

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