Returning to Work

Returning to work Part 1: Decision making

After months of working from home, many employers are now taking tentative steps to bring their staff back into the workplace.  From 1^st August the Government’s advice changed from telling people to work from home to give employers more discretion and ask them to make decision about how their staff can work safely.

The Chartered Institute of Personnel and Development (CIPD) is advising that businesses ensure they can meet three key tests before bringing their people back to the workplace:

Is it essential?

Where employees can work from home the Government advice is to continue to do so. If employees cannot work from home, is their work deemed essential to the business operation or could the business continue to use the Government’s Job Retention Scheme for longer, giving them the time needed to put safety measures and clear employee guidance and consultation in place?

Is it sufficiently safe?

Employers have a duty of care to identify and manage risks to ensure that the workplace is sufficiently safe to return to. This could include reconfiguring workspaces and common areas to allow appropriate social distancing, possible changes to working hours, and increased workplace cleaning and sanitation measures. 

Is it mutually agreed?

CIPD research found that four in ten people are anxious about returning to work. It’s vital that there is a clear dialogue between employers and employees so concerns can be raised and individual needs and worries taken into account. To manage some of these issues, there will need to be flexibility on both sides to accommodate different working times or schedules.

 

Returning to work Part 2: Is the workplace ready?

Is the workplace “COVID-19 Secure”?

To limit the spread of COVID-19, it is important that people work safely. Official government guidance confirms that “Working from home remains one way to do this. However, the risk of transmission can be substantially reduced if COVID-19 secure guidelines are followed closely”

Detailed industry specific Working Safely During COVID-19 guidance is set out in one of 14 guides covering a range of different types of work available here.  The guide for “people who work in or run offices, contact centres and similar indoor environments” is set out in the Office Guide.

There are also some overarching key points for all business here
Each guidance is lengthy and businesses will need to digest the appropriate one for their business. A downloadable poster to display in your business to show you have followed the guidance is also available.

The Office Guide requires employers to carry out a risk assessment in line with Health and Safety Executive guidance. As a minimum, an employer should:

• Identify what aspects of their workplace and working practices could result in the transmission of COVID-19
• Decide how likely it is that a person would contract COVID-19 in the workplace and
• Identify what reasonably practicable action can be taken to minimise the risks identified, recognising it is not possible to eliminate the risk of COVID-19 completely

Employers must share the results of the risk assessment with their workforce and employers with more than 50 employees are expected to publish the risk assessment on their website.

Are people who are more vulnerable to COVID-19 able to return to work?

Although ‘shielding’ paused on 1^st August, clinically extremely vulnerable individuals are still at greater risk of suffering an adverse outcome if they contract COVID-19.  Therefore, the guidance is still that such individuals should work from home wherever possible. If extremely clinically vulnerable individuals cannot work from home, then they should be offered the option of the safest available on-site roles, enabling them to maintain social distancing guidelines.  It may be appropriate for clinically extremely vulnerable individuals to be offered an alternative role or adjusted working patterns temporarily. Particular attention should also be paid to people who live with clinically extremely vulnerable individuals.

Other higher-risk groups include those who:

• Are older males
• Have a high body mass index (BMI)
• Have health conditions such as diabetes (these individuals and those who are pregnant or aged 70 or over are also referred to as being clinically vulnerable)
• Are from some Black, Asian or minority ethnic (BAME) backgrounds

Employers are therefore advised to consider this in their risk assessment.

Employers should also consider those with protected characteristics, including, for example, employees who are pregnant. They are entitled to suspension on full pay if suitable roles cannot be found. Employers may also need to consider if reasonable adjustments are necessary for any disabled employees.

 

Returning to work Part 3: Consulting with staff

Employers must consult with staff in a meaningful way when planning to return to the workplace.   The best approach is to have an open conversation about returning to the workplace before any decision to return has been made. The Office Guide recognises that the “people who do the work are often the best people to understand the risks in the workplace and will have a view on how to work safely.” Employers also have a legal duty to consult employees in good time on matters relating to their health and safety at work and about the introduction of any measures at the workplace that may affect the health and safety of employees.

If an employer has a recognised trade union, the employer must consult with the health and safety representative selected by that union.

Employers should also consult individually with members of staff about their return to the workplace to consider any uncertainties they have about precautions in place to make the workplace COVID-19 secure. It is good practice to consider individual circumstances, such as the journey to work, caring responsibilities, and if the person falls within a higher risk category.

What are employer’s obligations under the GDPR?

Employers may find themselves in possession of more sensitive “special category data” about the health of their employees and other individuals. For example, when discussing their concerns about returning to the office, employees may inform their employer of medical conditions, pregnancies or relationships with or information about household members. Employees may notify their employer when they have suspected or confirmed COVID-19. Employers who implement testing programmes will obtain special category data from the test results, and the information and contact details obtained for NHS Test and Trace will also constitute personal data.

Any person or organisation processing information relating to an identifiable individual must comply with the General Data Protection Regulation (GDPR) and Data Protection Act 2018, which requires information to be handled lawfully, fairly and transparently. Employers should demonstrate their compliance with the GDPR by keeping accurate records of data processing and by undertaking a data protection impact assessment (DIPA) where necessary.

Employers should also review and update their privacy notices to include the new ways in which they may capture and process employees’ and third parties’ personal data, including for the purposes of NHS Test and Trace.

Reviewing HR policies

The COVID-19 pandemic has changed the working environment, and the measures put in place to mitigate transmission will undoubtedly continue to impact working practices for some time. Employers should consider whether existing HR policies are adequate to deal with the new COVID-19 landscape. Changes may be needed to a number of policies, including:

• Annual leave, especially in view of quarantine requirements and extended carry-over of annual leave entitlement
• Home working
• Sickness absence, particularly to address periods of self-isolation and associated pay
• Flexible working, as employers may expect an increase in requests following an extended period of working from home
• Dependants’ leave, given the risk that there may be further school and nursery closures in the future
• Stress and mental health, in an era of increased anxiety and possible isolation and remote working
• Health and safety policies
• The staff privacy notice and data protection policy to reflect the additional processing of personal data in relation to COVID-19

Employers should also consider whether new policies may be required to deal with unprecedented situations, including policies around dealing with a COVID-19 outbreak, requirements to test and self-isolate, notification from NHS Test and Trace and guidelines on what staff need to do to comply with COVID-19 measures in the workplace and potentially also outside the workplace.

Communication and training in relation to any new policies and procedures will be required.

 

Returning to work Part 4: Employees who continue to work remotely

In many cases, employees are likely to continue working remotely for the foreseeable future for all or part of their working time.

Employers should consider how they will continue to remain in touch with a remote workforce.  Providing support for employees’ mental health will also be paramount as some individuals find long term working from home an isolating experience. Employers also need to ensure that their employees have a safe working environment at home and, as such, businesses may need to consider providing additional equipment to those who will be working from home on a long-term basis.  Additionally, employment contracts might need amending if the base of work changes on a longer term arrangement or more agile working is required

In some cases, employees may decide to take advantage of working remotely and move further away.  We are starting to see requests for working from overseas. Employers should ideally make it clear to employees that they are still expected to reside in the UK.  If they wish to move overseas, they must obtain approval from their employer first. Although moving overseas may seem attractive for some, with technology providing the means for employees to work from virtually anywhere in the world, this can give rise to a number of complicated tax, social security, immigration and employment law issues which should all be carefully considered before agreeing to the move.

Before agreeing to working from overseas Employers will need to:

• Evaluate the tax withholding and tax position
• Review the social security
• Govern where and how the pay should be delivered

Some companies set up a corporate presence in another country.

There is some useful guidance here:

https://www.gov.uk/guidance/paying-employees-working-abroad

Another key consideration is that the employer would need to understand and follow the employment law in that country. For example, employment rights, holiday entitlements and working time would need to be understood. A new contract of employment would most certainly need to be issued and comply with the relevant legislation within the country which the employee was residing. The employer would also need to think about whether they would pay for flights and subsistence should the employee be requested to attend the UK for any reason and what the rules would be.

So, employing people overseas is not for the faint hearted and specialist advice from both tax, payroll and employment experts should be taken before embarking on such a decision.

How we Support

Commissioning HR specialises in transformative change and putting people at the heart of business. We are passionate about ensuring Good Work is embedded in organisations and helping South West businesses emerge as ethical employers.

Contact us for advice and support on returning to the office, and other HR matters.