Employers should take steps now to avoid any health – and legal – issues arising when workplaces reopen, writes ALAN SUTHERLAND
As much as businesses have spent the last 16 months grappling with new ways of working, in the midst of the Covid-19 pandemic, many are turning their thoughts to what the future looks like now that restrictions are easing off, or due to do so. It goes without saying that different sectors will likely end up introducing different working practices, but for those employers contemplating bringing staff back into the workplace, there are a number of legal issues which should be borne in mind.
It has always been the case that employers owe their employees duties under health and safety law to take reasonable care to provide a safe working environment. Bearing in mind some employees may remain anxious about the risks directly associated with Covid-19, or being in more crowded spaces such as public transport, are we likely to see a return to the workplace being resisted by certain employees?
We have already seen some cases come through the employment tribunal system arising out of the pandemic. This includes one case where the employee successfully claimed that he could not return to work as the employer had failed to provide PPE and put appropriate health and safety protections in place, and as such that posed a serious risk to him as he was looking after his clinically vulnerable father.
This contrasts with another case where the employee was unsuccessful in his claim, since his allegations of an unsafe workplace were very vague, and he had not actually attended the workplace to see what risk-reducing steps the employer had put in place. It is evident therefore that any employer looking to bring its workforce back on-site will need to properly risk assess the safety of the workplace and consider any particular risks for those employees who either remain clinically vulnerable or unvaccinated for any reason.
Employers will also need to consider what resources are available to support returning staff in relation to mental wellbeing issues (although not forgetting those who will continue to work from home) such as access to employee assistance programmes, the existence or otherwise of its own mental health first aiders and a supportive and open culture where people share concerns and help each other.
It is essential that return to work arrangements are effectively communicated to employees in advance, so that they have the opportunity to discuss any concerns they may have. Employers should be as flexible as possible and be prepared to make changes based on individual concerns.
And it is important to remember that no workplace can be guaranteed to be 100% safe. The precautions employers are taking should be done so with perspective and proportion. Engagement with employees is vital to ascertain that they are comfortable with the precautions and protocols which are in place or planned to be introduced to make the workplace and work activities Covid-19 mitigated, and that individual concerns are considered with sensitivity.
In advance of employees returning to the workplace a risk assessment-based approach will assist in determining:
- What are the hazards? – the potential for Covid-19 transmission within the workplace and employee mental wellbeing issues (physical and psychological safety);
- Who can be harmed and how? – employees, but also anyone else the business physically interacts with in the course of its activities. When thinking about employees, it is necessary to consider any person with any specific vulnerabilities (‘at risk’ groups) and collaboration with HR personnel will help in determining this;
- What control measures are already in place and what else may be required? – for example, changes in workplace layout to achieve physical distancing, avoiding the use of shared equipment, increased hygiene controls, providing employees with instruction and guidance, and personal protective equipment, if a requirement for it has been identified;
- An estimation of the risk, which will help the decision-making process in determining priorities.
Of course, some employees may have been accommodated to work from home over the last 16 months, or at least large proportions of that period, and may be very happy with that arrangement.
Employers should anticipate a flurry of flexible working requests from employees seeking to convert a temporary arrangement into something more permanent, whether that be working from home, a change of hours or days to be worked, or a combination.
Remember as well that formal flexible working requests can only be rejected on eight specified statutory grounds, and those grounds may be more difficult to rely on where the business has operated successfully over the pandemic.
Employers can be forgiven for having been caught on the hop to a certain extent back in March 2020. But with some forward planning, employee engagement and sensible policies, the future look of your workplace, whether at its physical premises or remotely, is much more within your gift.
Alan Sutherland is head of employment law at Navigator, a Vialex company