May 6, 2020

Negotiating the employment law issues in the government’s Safe Return to Work guidance

The government has set out five principles for businesses to use in making decisions about a possible return to work:

1) Safety first

2) Dialogue and collaboration

3) Phasing

4) Flexibility within a framework

5) Build back better

The first principle indicates that the safety of employees is of paramount importance but the fourth principle suggests that the government does not intend for the guidance to be rigidly legalistic or even to be legally binding. The second principle suggests that it wants employers to consult informally with employees before introducing any changes, rather than allowing a litigious mind-set to arise but, in practice, there are legal considerations to take into account.

A particularly significant proposal is for start times to be staggered to minimise the number of people together at the same time, both at the workplace and on public transport. This is a variation of contract and will require agreement from the affected employees, who will also have to show flexibility. It might be possible as a last resort to take disciplinary action against employees who are making it unreasonably difficult to keep the workforce safe, but dialogue might prevent this from being necessary. A formal consultation will not be required in most cases, but it is still worth asking employees to buy into any changes, and to keep a written record of what changes have been agreed, and how long they will last. This will protect against a dispute arising at a later date.

The third principle encourages employers to bring their employees back in phases, in order to make social distancing easier, and to test the arrangements that have been put in place. It advises no more than 20% occupancy to start with, which could be achieved by bringing back only a fifth of the workforce or by rotating several groups in and out of the workplace. Either way, this could result in complaints either from those who do want to return to work or from those who do not. The guidance suggests asking employees for their preferences and this is often a good starting point. Although it is unlikely to be possible to accommodate them all, it is useful to be able to show that their wishes have been taken into account as far as possible. For employees with underlying conditions or childcare responsibilities, it might be necessary to go further. Treating these groups more favourably is unlikely to amount to discrimination.

The fifth principle encourages employers to use their recent experience to change their ways of working. There is certainly no legal obligation to start looking to the future at present but it is true that if, say, homeworking or video conferencing have been particularly successful, it is worthwhile to start thinking of ways in which it might be possible to continue to use them.

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