Since Boris Johnson announced the coming into effect of lockdown measures back on 23rd March 2020, workers in the UK have found themselves in limbo; wondering whether or if they will return to their workplaces and thinking about what sort of measures will be introduced by the government next to enable practices in the workplace to conform to new safety policies to prevent the spread of COVID-19.

At the present time, employees who can work from home are advised to continue to do so.

For those who are returning to work, full government guidance on working safely has been issued covering building sites to offices and shops. There is separate advice for Scotland, Wales and Northern Ireland. The Chartered Institute of Personnel and Development has remarked that firms should be ready to “move quickly” if the rules on returning to work change.

There have been targeted concerns raised by those working in the hospitality sector, who have voiced discontentment about their public-facing jobs; which potentially carry an enhanced risk for them of contracting Coronavirus in the UK. Given that it may be a breach of contract for workers to refuse to attend work when requested to do so, those that do decline to – on account of fears about contracting COVID-19 – can expect to run the risk of not being paid. Employers should be extremely careful though about deciding whether to discipline or sack employees who have genuine concerns.

There are 1.5 million people in the UK considered in the “high risk” category and, of course, that risk will be magnified in a workplace setting. Strict social distancing rules should be put in place for those who are returning to work and forward planning goes into that

What if I don’t think my workplace is safe?

If workers are unhappy that their employers have not addressed their concerns, they may contact their local authority or the Health and Safety Executive, which can force firms to take action.

Those that are members of trade unions may also involve their trade union representatives,  with a view to making representations on their behalf to their employers too. Employers who fail to keep their workers safe may be fined.

Measures that could mandatorily be taken by employers include: observing the 2 metre rule (6 foot) of social distancing, introducing one-way systems to minimise contact, frequently cleaning surfaces in retail environments, storing returned items for 72 hours before returning them to shop floors and furnishing employers with the correct Personal Protective Equipment (PPE) in order to carry out their roles safely and in conformity with guidelines set by Public Health England.

What ACAS recommends to return to work safely?

ACAS recommends that employers should consult with staff to try to reach agreements about returning to work. The same would include consulting with trade union representatives, employee representatives, and health and safety representatives. The conciliatory body says that employees and workers should be “ready to return to work at short notice, but employers should be flexible where possible”. 

If someone at work might have Coronavirus, that individual should not attend the workplace if they are unwell with Coronavirus symptoms or are told to self-isolate by a government test and trace service because they have been in close contact with someone who has tested positive, or, if they need to self-isolate because someone in their household has symptoms.

If they are already at work, they should tell their employer immediately and go home, avoid touching anything and wash their hands regularly, should cough or sneeze into a tissue, and should use a separate bathroom from others where possible.

The rules around using public transport to travel to and from work are also ever-changing, but recent developments have seen developments that those using public transport must wear a face mask to act as a shield against the spread of germs.

The Times Law Supplement recently featured an article discussing the impact of coronavirus laws that are now in force and related that back to the downward spiral of the justice system. Whilst the justice system has had to adapt significantly in order to continue serving the public, Court, and Tribunal hearing dates and the processing of normally straight forward applications has suffered greatly. Even with the introduction of remote hearings and the lodging of Court bundles online, things have not yet caught up.

We expect to see a backlog of cases in the Employment Tribunal and those who may be facing the prospect of redundancy and/or having to address unlawful deductions from wages and breaches of contract are likely to find themselves inside a pipeline that appears blocked for some time.

Going back to work for those on furlough has also been assisted with changes that were made to the Coronavirus Job Retention Scheme (CJRS) on 1st July 2020. The changes heralded the introduction of a new system of flexible furlough arrangements for allowing furlough employees to return to work on a part-time basis and requiring employers to make contributions to furloughed pay, on a tapered scale from 1st August 2020.

The ways in which the scheme will change from 1st July are as follows:

  • It is only employees who started furlough before 10th June 2020 that will be eligible for the scheme, unless they were on a long period of statutory family leave;
  • It appears that it will be necessary that any new working arrangement is agreed in writing;
  • There will not be any limit or restrictions on the working arrangements of furloughed employees – some employees will not need to be furloughed for a minimum of 3 weeks; so rotations on and off furlough can be made on a more frequent basis;
  • The periods for working will need to be a minimum of a week though and claim periods will no longer be able to overlap months;
  • The number of employees an employer can claim for in any claim period cannot exceed the maximum number that they have claimed for in any previous claim. This is particularly relevant where an employer was operating rotating furlough arrangements before 1st July 2020.

The calculations required to claim still remain complicated. Guidance is spread across several government published documents.

On 29th May 2020, the Chancellor announced that from 1st August 2020 employers will be required to pay contributions towards national insurance contributions and employer pension contributions on the furlough pay scheme.

There is also that from September 2020 employers will be required to pay 10% of employees’ pay capped at £312.50. The government will then pay 70% of employee’s pay capped at £2,187.50.

From October 2020 employers will be required to pay 20% of employee’s pay, capped at £625 and the government will pay 60% of employee’s pay capped at £1,875.00.

Due to furloughed employees being capable of returning to work on a part-time basis from 1st July 2020, the new caps will be proportional to the hours not worked by employees.

Will employers need to enter into fresh furlough agreements with employees if the furlough period continues after the end of June 2020?

Yes, if employers wish for any furlough employees to work part-time after 1st July 2020, then variations to earlier furlough agreements will plainly need to be considered.  The requirement that furlough agreements remain in writing is still there. A simple counter-signed letter should suffice, but in some cases, a fresh furlough agreement can be entered into.

Getting back to work

This is necessary for many but still remains a daunting prospect from the perspective that the technical arrangements around this and the worry that still exists about how to conduct one’s self both on the way to and at work for safety purposes remains a cause for consternation.

The country does though need to put mechanisms in place and see them exercised to try and correct the deficit in gross domestic product.

The message given by the UK government is that the UK will pull through this,  but if that is to be achieved, employees must get back to work and must try to resume something of a normal working week pattern in order for businesses to survive.

If you have any employment matters and would like further advice in relation to the same, please contact Fisher Jones Greenwood LLP for expert legal advice, call 01206 700113 or email [email protected]. For more on Employment Law during the Coronavirus pandemic, visit our Coronavirus Legal Advice hub.

Please read our latest blog post on returning to work after covid-19 to get the most up to date information.