For the next stage of dealing with the coronavirus pandemic and its effects, businesses are going to have to offer both clarity and flexibility to their people while making significant changes to working practices.In England, the Government advice is still to work from home if possible but, where that is not possible, then the Government is encouraging workers to return to work if they can do so safely.
The employer has to do all that it reasonably can to set up a system of safe work and then to ensure that it is implemented.
Employers and employees alike need a workable framework to establish safe ways of working, providing people with the reassurance they need to return to the workplace. The Government Guidance is a good reference point for deciding what is reasonably practicable. It also may be very good evidence of what is a safe system of work for particular types of workplaces.
It is crucial to understand that the guidance is just that: guidance. It does not change employers’ legal duties to assess the risks in their business, to set up a safe system of work and to implement that system. Employers will need to tailor the guidance to their particular circumstances, guided by what is conducive to a safe working environment rather than what is expedient for them. Failure to do so can result in liability for employee illness, health and safety detriment claims and whistleblowing complaints.
Businesses can expect to have to change many aspects of the working environment, including implementing physical distancing, appropriate physical protective measures and protocols on the number, contact and proximity of employees in the workplace.
Employers need to understand that they have a legal obligation to consult with employees on changes in working practice which affect health and safety.
Where there is a recognised trade union, this means consultations with trade union health and safety representatives. If there is no recognised trade union, the employer must consult either the employees themselves directly or with representatives chosen by the employees. It will only really be appropriate to consult with employees directly where the group of employees in question is very small because otherwise the consultation will not be sufficiently full and effective.
This is new territory for lot of HR professionals but, rather than be seen as an additional burden, it would be wise to see it as an opportunity to address employee misgivings about any changes and to increase awareness amongst the workforce of the concern the business has for its employees and the challenges it is facing.
This should help increase employee ‘buy in’ to the changes, which will need to include a code of conduct for employees to ensure that safe working practices are observed, including the potential consequences of not doing so. It may involve spelling out behaviours that will be considered gross misconduct and introducing appropriate methods for employees to report breaches without fearing negative repercussions.
Nonetheless, there will still be employees who are reluctant to return to the workplace. Open transparent consultation should make it more likely that those employees will have sufficient confidence to be able to approach their employer to voice their concerns. They will need to be addressed consistently and sensitively, particularly where they relate to health conditions of the employee or people in their household. When making decisions about who is required to attend the workplace, how often and at what times, businesses should also bear in mind employees who rely on public transport for work.
For advice on all of these matters, please contact our specialist team.