Legal expert, Richard Yeomans of law practice Addleshaw Goddard offers businesses tips on returning to work safely and legally…

Following the latest BEIS guidance, many businesses are looking carefully at how they can bring employees back to work safely. The good news is that businesses that adhere to the guidance should find they are compliant with health and safety law. But what does this mean in practice?

Returning to work safely

There is no legal duty to provide a totally risk-free workplace and COVID-19 legislation is designed to be temporary. So it doesn’t change existing workplace safety laws but adapts the existing law on risk assessments.

For high-hazard sectors, like construction or energy, this will be familiar ground. They may find little needing change, other than social distancing, PPE alterations and enhanced cleaning. The greater impact will be on traditionally low-hazard workplaces like retail or offices.

For them, risk assessments have traditionally been a tick-box exercise. Now they will have to manage restrictions on circulation and may need to enforce social distancing, right down to taking away desks.

Flexible working arrangements and staggered hours may also become important. All risk assessments should be reviewed and recorded, but there is no legal requirement to publish them and it would be prudent to consider the reputational risk of publishing.

There is also the issue of travel. There has never been a duty on employers to risk-assess to-work travel, but this is likely to be an issue, and it would be wise to demonstrate flexibility and understanding.

Although the final responsibility remains with employers, they do need to consult employees when carrying out risk assessments, and it is important workers feel listened to. So a consultation process is central. Where there is a recognised union, their safety representatives have a right to be involved.

Employers will want to ensure unions are part of the process, as some have been vocal. Where there is no recognised union, there is a requirement to consult the workforce, either directly or through elected representatives.

Such representatives can be chosen through a simple ballot process, although it should be noted that once elected they are legally protected from any detriment caused by taking on those duties. It is also important they be given training (e.g. on legal guidelines) if the consultation process is to be meaningful.

Reengaging employees

Preparing employees for returning to work will require a lot of engagement. Employers will want to consider aspects like childcare, commuting, and personal health – especially for workers who are categorised as vulnerable. They will therefore need to collect information about obstacles to returning, and canvass opinion. This could be done either through confidential surveys or directly through line managers.

There will be practical aspects like when staff are to return, how they travel, and what adjustments are needed in workplaces – ranging from additional hand-washing facilities to floor markings to enforce social distancing.

Many businesses will have issues over managing circulation – some may want to stagger work times, or have a phased return. Others will continue to have people working from home.  All of this should be communicated clearly and openly from the start, and it may be worth sharing the most recent workplace risk assessment. Businesses and employees alike will need time to put necessary mechanisms in place.

Supporting vulnerable workers

Businesses may also need to plan for workers classified as clinically vulnerable, or extremely vulnerable. This can include a number of groups, mostly defined by acute medical conditions, underlying conditions or age. Pregnant employees are also classified vulnerable. Finally, there are those employees who are living with clinically vulnerable people.

All should be encouraged to work from home where possible, but there may be issues if they cannot. Those who are “extremely vulnerable” are entitled to statutory sick pay and may be entitled to company sick pay under company policies.

However, others may not. The risk is that if their workplaces cannot be made safe for them they may have a claim for unlawful detriment. Companies may therefore deem it more practical to put them on sick pay anyway. Where employees are pregnant, the most practical course would be to find a way for them to stay at home, on sick pay if needs be, until maternity pay falls due.

Employees that don’t want to return (yet)

Finally there is the issue of what happens if otherwise healthy employees still do not want to return to work because they believe it unsafe. Early engagement and communication are key in order to safeguard good employee relations. Legally, if all necessary risk assessments and adjustments have been made, and workers still refuse to attend, there may be grounds for disciplinary action. But businesses should tread carefully.

There is a risk of claims being brought for detriment, and, where unionised, industrial action. But there is also the matter of good employee relations and, ultimately, reputation.

Companies that demonstrate they are listening, flexible, and accommodating are likely to have much better outcomes. It may be wise to set up a hotline – not in the context of whistleblowing – where workers can report any concerns they have, confidentially, without running the risk of it becoming whistleblowing.

Ultimately, companies will do best if they prepare, communicate and engage. It is also important to bear in mind that aside from the legal issues, there are matters of employee relations, staff morale and reputation to maintain. The companies that are able to come through this crisis with the least damage are likely to be the ones that are willing to show all their stakeholders that they listen and they care.

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