This guide will help you plan your organisation’s eventual return to the workplace as lockdown restrictions continue to evolve
Q: From a health, safety and well-being perspective, what are the employer's obligations about managing a return to the workplace?The UK government has now issued a 'stay at home' order, meaning people may only leave home for work if they cannot reasonably work from home. Where work cannot be done from home government guidelines are now available to help employers ensure workplaces are as safe as possible. Whilst employers should take account of the ongoing guidance from the UK government, they should also consider the general law, for example by assessing the risks to employees, clients and customers.
Where working from home is not possible employers should consult with their employees about any return to work and the proposed new infection control arrangements; good communication is essential. Employers should discuss return-to-work issues with individual employees before any physical return to office as part of a sensitive and supportive conversation with their line manager. This should be part of a broader re-induction process that takes on board any adjustments or ongoing support that people may need. Employee engagement will help identify support needed and ensure teams feel more confident about returning. Where relevant employers should also seek union input for any return to work measures.
Employers should undertake risk assessments which will need to be reviewed as government advice continues to change. You may wish to refer to the Health and Safety Executive website for more information. A risk assessment has a crucial role in ensuring a safe return to the workplace process. The end goal is to adopt appropriate control measures which reduce or remove the risks of contracting COVID-19 when returning to work. The risks around visitors entering the workplace, such as customers should be assessed too as there is also a legal obligation to ensure their health and safety.
Health and safety duties
Employers have a contractual duty to take care of employees’ health and safety and other statutory duties too including:
- Implied duty to protect the health and safety, of all employees.
- Duty to look after both the mental health and physical health of employees.
- Duty to protect members of the public, clients, customers and contractors.
- Duty to manage the health and safety risks from the workplace itself including equipment such as hand driers and air conditioning systems which may circulate viruses, although there has been little research on this. Other workplace issues include cleanliness and washing facilities.
- Provision of safe systems of work possibly including provision of PPE subject to availability.
- Information and training (including reminding employees of their responsibilities in meeting health and safety requirements).
Employers’ health and safety duties extend to mental health and wellbeing as well as physical infection control measures. Risk assessments should cover managing mental health and well-being aspects too. You may wish to refer to the Health and Safety Executive stress risk assessment tools.
Employees with new working arrangements in the workplace and working from home can suffer from stress or mental health issue maintain contact and look for signs of problems. Employees who have been furloughed should be included.
As well as implementing or reviewing policies and procedures and proactively monitoring and keeping in contact, employers should point staff to other support that is available. Managers may need fresh training in recognising the symptoms of poor mental health so they can signpost to early intervention and expert support such as occupational health, an employee assistance helpline.
If an employer becomes aware that particular employees are struggling with their mental health, they should conduct individual risk assessments for both home and workplace workers. Individual risk assessments will be warranted in many other cases too.
Employers have the same health and safety responsibilities towards those working from home as for any other workers, including for their mental health. For more information see the FAQs on managing remote working.
Q: What steps should employers take before employees return to the workplace?
While workers are being advised to work from home, anyone who cannot work from home should go to their place of work, providing employers can follow official guidance on returning to the workplace. The devolved administrations in Scotland, Wales and Northern Ireland have different restrictions.
Employers should attempt to reduce risk for employees being exposed to coronavirus, keep their options open and have the capability to adapt plans as the situation and advice evolves. Where working from home is not possible a number of key considerations that employers must check before asking employees to return to work are set out below.
Comply with current government guidance
Undertake a thorough risk Coronavirus specific risk assessment
Employers should keep risk assessments under review and should keep evidence that safety measures were implemented and complied with. They should also consider who they are asking to come into work and if it’s safe to so. This will entail considering the government’s specific guidance to employers covering measures such as increased workplace cleaning, changing office layouts, keeping a safe distance at work, supplying safety equipment etc. Employers who have complied with their duty of care, conducted thorough risk assessments and implemented safety measures, will be in a stronger position to ask employees to return to workplace.
Review written health and safety policy
Employers should have a written policy on health and safety if they have more than five employees. For those with fewer than five employees, there should still be a health and safety policy, although it doesn’t have to be written down. The arrangements section in the policy should say how the employer will meet its commitments, including elimination or reduction of the risks and hazards in the workplace.
Take steps to comply with health and safety obligations
Employees could insist on staying at home, refuse to return to the workplace or could choose not to do certain tasks if they feel employers have not taken appropriate measures to provide a safe environment. Employers have a duty to protect the health and safety of employees, and under the Employment Rights Act (s.44), employees are further protected if they refuse to return to work because they reasonably believed there was a serious and imminent danger to themselves or others. Coronavirus classifies as a danger and is a potential reason not to return to work. Employers will need to keep evidence to show they attempted appropriate measures to provide a safe working environment.
Provide training and communicate with employees about the necessary steps
Under the Health and Safety at Work etc Act 1974, employers must provide appropriate information, instruction, training and supervision to ensure the health and safety of employees. Further legislation requires training following exposure to new or increased risks, which includes coronavirus, and consultation with employees or their representatives on issues relating to health and safety.
Take reasonable steps
Remember the Health and Safety Executive (HSE) will be doing spot checks and issuing sanctions to ensure that workplaces are safe, and that employers have taken reasonable action.
Employers may wish to check their employer's liability, management liability or directors and officers (D&O) insurance cover as well.
If employers fail in their responsibility to provide a safe working environment and there is a genuine health and safety risk from being required to attend work, this can amount to a breach of the duty of care and of the implied term of mutual trust and confidence. This links to potential constructive unfair dismissal and disability discrimination claims. If employees contract coronavirus as a result of inadequate steps being taken there could also potentially be personal injury claims against the employer.
Q: Where does liability sit if employees catch coronavirus at work or on the way to work?
Employers have existing contractual and statutory duties to take care of employees’ health and safety. If employees can prove they caught coronavirus at work and the employer cannot show they have taken appropriate steps to prevent this, the employer could be liable for the employee’s losses. Some employees may be unable to work for some-time and some may have more serious long term health implications. Depending on the levels of COVID-19 in the UK population, and the success of the government’s test and trace system it will be difficult for employees to prove they contracted the disease at work. Although it should be rare, some employees may be able to establish the employer unnecessarily exposed them to danger and risk. Potential liabilities include health and safety protections, unfair dismissal and discrimination claims.
In the medical research, health and care sectors workers who subsequently develop coronavirus may have reasonable evidence that the exposure arose from the workplace. In other contexts, it will be harder to prove. However, there are many potential liabilities for failure to take care of staff, particularly if they are especially vulnerable. It is better for employers to be able to show that appropriate protections and adjustments were taken. For further details of employers’ duties see the FAQ on health and safety following return to work.
Employers should keep records to show that they have conducted appropriate health and safety risk assessments to identify and manage risks appropriately and that they have:
- Undertaken workplace safety audits.
- Updated policies and procedures.
- Identified potentially hazardous situations.
- Made changes to reduce exposure.
- Trained employees and communicated new policies and procedures to them.
- Monitored the workplace to ensure compliance by employees with new health and safety rules, policies, practices and procedures.
- Performed random checks and kept ongoing compliance reports in regular ongoing efforts to ensure compliance.
- Encouraged reporting of problems and have an open environment that welcomes feedback.
Some relevant legal aspects are set out below.
Other duties at work
As well as the overriding duty to care for employees’ health and safety the following duties apply:
Risk assessment: Employers who have employees returning to their usual workplaces will need to ensure that they have conducted appropriate health and safety risk assessments to identify and manage risks appropriately. All employers in England should follow Government and Public Health England advice guidance to manage the workplace environment, for example by implementing social distancing measures. Government advice on how to manage workplace risk and make your businesses ‘Covid-19 secure’ is available on the government website.
Reporting: The Health and Safety Executive (HSE) has issued guidance on reporting cases of COVID19 under the 2013 Reporting of Injuries, Diseases and Dangerous Occurrences Regulations (RIDDOR). Reports will only be needed if:
- A worker has been diagnosed as having coronavirus and there is reasonable evidence it was caused by work exposure. This must be reported as a case of disease.
- An unintended incident at work has led to someone's possible or actual exposure to coronavirus, this must be reported as a dangerous occurrence.
Such incidents are more likely to occur in a laboratory, health or care setting. HSE guidance does not suggest that every case of COVID-19 in the workplace is reported and it is unlikely that extensive RIDDOR notifications will be made. Employers must consider the individual circumstances when they decide whether to report.
If employers do not take appropriate steps to comply with the relevant law and guidance such as social distancing at work or ensuring workers in formerly 'shielded' or vulnerable categories follow NHS advice to self-isolate, the HSE could simply provide advice or issue enforcement notices. The HSE will be conducting spot inspections and responding to reports from concerned individuals. In Scotland and Wales the police can enforce social distancing in the workplace.
Travelling to work
It will be difficult for employees to prove that they contracted the disease travelling into work and that the employer should be liable. However, employers may be liable if employees can show that they were unnecessarily exposed to risk when there were alternatives available.
Government advice is to use public transport wearing mandatory face coverings and employers may also consider, where possible:
- Provision of parking spaces.
- Secure bicycle parking.
- Shower facilities.
- Flexible or staggered working hours by agreement to enable employees to avoid more crowded public transport.
- Special provisions for vulnerable staff eg elderly, pregnant, and those with impaired immunity helping them to avoid public transport or its use at peak times.
You can find more information on staggered working hours in our flexible working guide.
Q: How do we go about staggering working hours to ensure not all staff are in at the same time?
To ensure staff are not all in at the same time there are many methods that can be adopted.
- The UK government advice (dated 11 May 2020) suggested that employers should consider staggering working hours thereby reducing demand on the public transport network, walking or cycle where possible. Employers may also wish to expand bicycle storage facilities, changing facilities and car parking to help.
- To reduce the risks of transmission in the workplace employers should limit the number of people that any given individual comes into contact with. Employers can support this where practical by changing shift patterns and rotas to keep smaller, contained teams.
- Groups of employees on staggered shifts, with different hours, days, weeks and locations are all options. All forms of flexible working can be considered, including remote working. You can refer to our guide on flexible working measures for more information on staggered shifts.
- Employers need to consider the legal position of any revised working arrangements. Employees’ consent will normally be required and there should be a communication process, information and consultation about the changes. Flexibility is key and if employees understand that their safety and wellbeing is at the core of any changes this should help achieve consent. The best approach to change is by agreement with employees; fully explaining the situation and likely period of the changes, discussing any concerns raised.
- Any contractual changes should be implemented very carefully bearing in mind contractual provisions and different legal rights (for example, working hours, rest breaks).
- Those attending for some hours in the workplace must continue to observe social distancing, high standards of hygiene and the other steps required to maintain social distancing. Employers can refer to the government guidance.
- Employers who had to stay open during lockdown may be able to offer guidance to other employers who are now considering some employees returning to work on site. Visit the CIPD community to share ideas and experiences.
Q: What if our people can't come back - or don't want to travel on public transport?
Where working from home is not possible employers should follow COVID-secure guidelines and maintain social distancing. Other points include:
- The government will provide new statutory guidance to encourage local authorities to widen pavements, create pop-up cycle lanes, and close some roads in cities to traffic (apart from buses).
- Face coverings must be worn on public transport and transport operators should follow appropriate guidance to make their services COVID- 19 Secure.
Face coverings are now mandatory in shops and supermarkets as well and are also required for staff in hospitality and retail. Children under 11, some disabled people and those with breathing difficulties are exempt. Face coverings are also advised in enclosed spaces where social distancing isn’t possible and where people encounter others they do not normally meet.
Employees may understandably show confusion at the speed at which the guidance has changed, which may increase their anxieties.
It is sensible if all unnecessary work-related travel is minimised; availability of safe public transport should be taken into account in any decisions to return to the workplace. Employers can stagger rotas and start and finish times to promote physical distancing, provide extra parking and extra bike storage. As well as this, continuing home working may be preferable provided that some or all of an employee’s work can be performed remotely. Work duties can be altered by agreement to accommodate those who are anxious to avoid crowded public transport to get to work.
From a legal standpoint, on the one hand, under the Employment Rights Act 1996 employees can claim that they have suffered a detriment on health and safety grounds, or claim automatically unfair dismissal if the employee reasonably believes there was a serious and imminent danger which led to their refusal to return to work. On the other, in all employment contracts there is an implied term that employees must follow their employer’s lawful and reasonable instructions. Employees could therefore face disciplinary action if their continued refusal to attend work is unreasonable. However, avoiding public transport seems reasonable, especially when the government has advised against it. There is at least a risk that disciplining employees for refusal to travel may result in a health and safety detriment, unfair dismissal or discrimination claim.
The employer should listen to the employee’s concerns, especially if they are vulnerable or have a disability and consider their proposals and accommodate them as far as practicable. Employers should also remember that employees with some mental health issues may be anxious about travelling and if their mental condition constitutes a disability the employer should try and accommodate their request.
Employers can discuss other options such as unpaid leave or use of annual leave to achieve a phased return.
Q: How do we assess people before they return in terms of wellbeing/mental state?
The risks to people’s health from this pandemic are psychological as well as physical. Everyone will have experienced a challenging time during lockdown and many will have experienced anxiety due to a range of different factors, depending on their individual circumstances. People’s mental health is fluctuating, so there needs to be an ongoing conversation about well-being as part of every manager-employee one-to-one.
Individuals who have a pre-existing mental health condition, such as anxiety and depression, should have been offered support during this health crisis. But many others will now have developed a mental health condition, and so support such as an employee assistance programme or counseling should be offered to all employees.
If a return to the workplace is essential the best way to assess people’s mental wellbeing is to encourage a culture where people feel safe to talk about their feelings and seek help. Hopefully, managers will have the kind of trust-based relationship with each team member whereby an employee can raise their concerns.
Managers need to listen with empathy and treat all concerns seriously, and signpost to help if needed. They also need to be prepared to discuss any changes to someone’s role or working arrangement to help ease them back to work. Many people will need a period of readjustment and so a phased or gradual return could be needed.
Managers could also be feeling vulnerable and so it’s very important that employers ensure they are properly supported to support employee wellbeing, and can address their own wellbeing concerns.
Q: How do we deal with the commuting risk and anxiety for many colleagues?
Government guidance has previously encouraged cycling or walking to work wherever possible although public transport can now be used with face coverings. Employers can also implement measures such as staggering arrival and departure times to reduce crowding, and can provide additional parking/bike racks.
However, many people rely on public transport to get to and from work, and may not have a car or bike. Public transport can become congested, particularly during peak rush hours, making it very difficult to maintain physical distancing from other commuters. The availability of public transport is also an issue, as trains, buses and tubes have been running a much-reduced service. Many employees are therefore likely to have legitimate concerns about using public transport, especially as government advice says to avoid it.
Any decisions about whether or not an individual employee should return to a workplace needs to factor in wider considerations such as their daily commute and ability to arrive safely. Every employee should have the opportunity to discuss any concerns about their commute with their manager as part of the return-to-work process, which should take place in advance of the day that individual is expected to return.
DISCLAIMER: The materials provided here are for general information purposes and do not constitute legal or other professional advice. While the information is considered to be true and correct at the date of publication, changes in circumstances may impact the accuracy and validity of the information. The CIPD is not responsible for any errors or omissions, or for any action or decision taken as a result of using the guidance. You should consult the government website for the very latest information or contact a professional adviser for legal or other advice where appropriate.
If you have other queries about COVID-19 not covered above, please contact the CIPD member employment law helpline on 03330 431 217 or visit the Community pages
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