Reactivating the workforce and returning to work – the legal considerations

31 July 2020

Since 23 March, the Government's advice to employers was simple - employees should work from home, if possible, to help curb the spread of the coronavirus.   

The instruction from the Government changed when the Prime Minister announced from 1 August employees should go back to work if they can. But confusion reigned when, in the same week, the UK's Chief Scientific Adviser publicly stated that working from home is still a perfectly good option. 

Employers will be given more discretion about whether their employees should return to work or not. That discretion can be unhelpful though, as it creates uncertainty over what is the right thing to do. It can also lead to an unfair playing field because unscrupulous employers may use that discretion to achieve a competitive advantage over those who hold a higher standard of duty of care towards their employers. 

So, what is the right thing to do? How can employers ensure it is safe for employees to return to the workplace? How do they deal with a workforce that is anxious about returning? And what about those that have experienced the benefits of remote working?

Coronavirus secure working environments

If your employees are able to continue working from home, there is no reason why this has to change. Some well-known businesses have stated that their employees can work from home forever, if they wish.   

However, there are still concerns about full-time remote working - does it stifle innovation and idea creation because there's less discussion between colleagues who are not in the same physical location? Are junior members of the team missing out on learning and development through lack of one to one supervision from their line managers? 

It's therefore sensible to consult with your own employees about what they would like to do and get their views on what a safe return to the working environment might look like. How would they like to work in the future? Do they want to return to the office? If so, how often would they like to work in the office each week? Are they concerned about taking public transport to get into the office? 

The responses to these questions will also help shape your coronavirus risk assessment which must be undertaken before allowing employees back into the workplace. If you have 50 employees or more you must publish your risk assessment on your website, although it might be a good idea to publish it anyway even if you don't meet that threshold.

Risk assessments should be shared with employees, explaining the measures you are taking to mitigate the risks. Initiatives undertaken by some of our clients to get employees comfortable about returning to the workplace include virtual tours of the office and training on the processes in place when they do return. 

Revisit your contracts of employment

If workers will work more remotely on a permanent basis, does the place of work and hours of work need updating to reflect the agreed position in case there is a dispute later on? What expenses will you reimburse the employee for when they are working remotely? For example, will you reimburse the cost of travel if the employee has to go to the office, the costs of any IT / home office equipment? Contributions to their utility bills whilst they work from home? There will be tax consequences which you should consider before making your decision.

Will your employees be handling sensitive commercial data or personal data belonging to your employees or customers? Will they be receiving hard copy documents as well as soft copy ones? If so, you need to protect your organisation by ensuring the contracts have the necessary obligations of confidentiality and the right to request the return of company property at any time.

Have you carried out home working Health & Safety risk assessments?

To ensure your employees have a safe working environment at home - for example, have they set their desk, chair and IT equipment up correctly and has all the electrical equipment they are using from home satisfied the necessary safety tests?

Monitoring rest breaks

How are you ensuring and monitoring whether employees are taking the necessary rest breaks from work whilst they are at home? Recent case law has confirmed that employers must be able to prove that their employees are not working in excess of the legal limits and are taking the legally required rest breaks from work.

Information Security

Is your information security still fit for purpose?  If those working from home regularly handle employee or customer personal data, data privacy impact assessments need to be undertaken to ensure that steps are taken to protect the privacy of that data. The more people you have working from home, the more susceptible you are to cyber security threats via their home networks.

Re-uniting a furloughed and unfurloughed workforce

One of the challenges facing many employers will be returning furloughed employees and reintegrating them with non-furloughed employees. Employers can consider treating returning furloughed employees like maternity / sick leave returners and gradually re-integrating them back into the workplace. That may be born out of necessity given levels of demand as the economy gradually reopens.

Employers may also have to choose who is returning from furlough leave and who isn’t. This may be because those returning have the skills required at the moment whereas the others do not. It's important for employers to explain the reasons why some are returning, and others aren't. Care should also be taken to ensure the decision isn't tainted by discrimination - for example, only bringing those back who don’t have caring responsibilities which statistically is more likely to be women than men.

Future reward and incentive strategy

Whilst reward and incentives may not currently be at the top of the agenda as employers navigate through this crisis, it's worth thinking about how that might change as we adapt to the new normal.

What employees value from a job is likely to change. This pandemic will change what's important to people in the future. The ability to work from home means there is likely to be a greater demand for shorter working weeks or non-traditional working hours. Mental health and well-being will almost certainly be top of the agenda. Unless already in place, you could introduce non-financial benefits such as mental health support or Employee Assistance Programmes.   

You may also need to revisit what incentives will be linked to - should it just be financial performance or should other non-financial performance metrics have just as much importance?  For example, should how they demonstrate the organisation's core values carry more weight in the future.

And finally, with morale probably at an all-time low - is now the time to introduce a share incentive plan, giving employees a stake in the business and its future success as we emerge from the crisis?

If you have any concerns regarding the above, please contact Charlie Barnes.