Whatever form the ‘new normal’ takes, workplaces are going to look radically different in the months to come.
How confident can we be that employees are able to safely get to, and into, their place of work? What are the obligations on employers and employees? And, for workers whose only option is to commute, is it feasible to socially distance on a bus or train?
As England begins to unfurl from lockdown restrictions, Scottish employers will no doubt be looking on with great interest and considering how they can best prepare for a return to work north of the border. What key issues should they be taking into account?
Employers have a legal duty to secure the health and safety of their employees. We expect that employers in Scotland (as is now mandatory in England) will be required to carry out COVID-19 risk assessments in preparation for a return to the workplace. Businesses will need to think about how they ensure that appropriate handwashing and hygiene procedures are in place, how social distancing of two metres can be maintained or, where that is not possible, what mitigation strategies are needed to reduce the risk of virus transmission.
The message from the UK and Scottish governments remains that people should work from home where they can. Where places of work are to re-open and maintain social distancing, employers must now consider entry and exit controls (including one-way systems), reorganising desks or workstations, using protective equipment and barriers, moving to shift work, splitting staff into fixed teams, staggering break times, avoiding face-to-face meetings, and increasing the frequency of office cleaning. Hot-desking as we once knew it is almost certainly a thing of the past.
Some risk areas may not be apparent until employees begin to return to the workplace, so employers should be prepared to listen, consult and continually review their safety measures.
For employers who get it wrong, liability issues will arise. The absence of reasonable measures, resulting in a breach of health and safety duties, could lead to intervention by the Health and Safety Executive or possible civil claims. Employers need to conduct risk assessments, document new policies, and update paperwork for staff training to demonstrate how they have mitigated risk.
One of the biggest hurdles that employers may face is employee reluctance or inability to return to work despite restrictions being eased. It is expected that those in the extremely vulnerable category will be encouraged to continue to shield at home beyond the lifting of the lockdown. At the moment it is also unclear when and how schools will re-open. Undoubtedly, this will leave many parents with a childcare headache if they are summoned back to work.
Employees may be reluctant to return to the workplace if they or someone in their household is not required to shield but does have a health condition, or they rely on public transport to get to work. In this, the burden remains on employers, not employees, to work through these issues and demonstrate due consideration.
For the moment, the Coronavirus Job Retention Scheme remains available to employers and can be used for employees who are unable to work due to shielding or childcare needs arising from the coronavirus situation. While the extension of the scheme until the end of October is welcomed, employers will have to contribute towards employee wage costs from August – although it looks as if from then on the scheme will allow some work to be done by furloughed employees without losing the government subsidy.
Continued flexibility is likely to be necessary in light of the contact-tracing approach being pursued by the UK and Scottish governments. It is conceivable that employees may be required to self-isolate for 14-day periods on multiple occasions over the coming months. Some employers are considering introducing team ‘bubbles’ to limit colleague interaction and reduce the risk of an entire workforce being required to isolate.
Finally, employers may find themselves overwhelmed by requests from employees seeking to work from home on a long-term basis. While under the current rules’ employers can lawfully refuse such requests on certain business grounds, challenges may be more likely if this unexpected trial run has proved successful, and employers should be alive to potential discrimination risks. We also understand the government proposes to introduce a “right to work from home” to help employees in the post-lockdown period.
Faced with these real-life challenges, employers are likely to be best served by taking a case-by-case approach and staying mindful of their responsibilities under employment, health and safety, and equality laws.
It is to be hoped that the easing of restrictions in some shape or form will soon happen in Scotland. While we anticipate the Scottish Government will provide advance warning of an easing of the lockdown, employers ought to be acting now to assess their own areas of risk in order to be properly prepared for returning to business when the time comes.
This article was co-authored by Gillian Moore, Associate in Shepherd and Wedderburn’s employment team, and Kevin Clancy, Senior Associate and health and safety specialist in the firm’s commercial disputes team.
