Up Again UK: People

Employment

1. What options do employers have and/or what are you seeing in terms of re-opening the workplace e.g. phased returns, rotating shifts, staggered working hours, etc.?

The government's guidance on workers returning to workplaces has changed in recent months. In its Our plan to rebuild document, the government advised that individuals should continue to work from home where they are able to do so, but that all workers who cannot work from home should travel to work if their workplace is open. On 1 August 2020, the government advised that employers could allow employees to return to their workplaces, provided that COVID-19-secure measures had been implemented. However, this advice changed again on 15 September 2020 in light of the rising rate of coronavirus infection in the UK. Now, the government advises that employees who are able to work effectively from home should do so once again. This gives employers some scope to allow employees to return to the workplace if, for example, the employee is able to work more productively in a workplace or the employee's wellbeing benefits from being in a workplace. Employees who are unable to work from home should continue to go into work.

The government has also published COVID-19 Secure guidance setting out measures for working safely. Complying with this guidance, which focuses on ensuring workplace health and safety, is essential to avoid legal risk and to give staff confidence that it is safe for them to return to work. On 22 September 2020, the government announced that, in some sectors, the guidance would impose legally binding obligations with penalties of up to GBP10,000 for non-compliance.

There are 14 separate guidance documents, which cover:

  • construction and other outdoor work;
  • factories, plants and warehouses;
  • homes;
  • labs and research facilities;
  • offices and contact centres;
  • restaurants offering takeaway or delivery;
  • shops and branches;
  • vehicles;
  • hotels/guest accommodation;
  • heritage locations;
  • close contact services;
  • the visitor economy;
  • performing arts; and
  • providers of grassroots sports and gym/leisure facilities.

Businesses should translate the guidance into specific actions, depending on the nature of the business, including its size and type and how it is organised, operated, managed and regulated, and are instructed to carry out an appropriate COVID-19 risk assessment. The government expects employers with 50 or more employees to publish their risk assessments on the business's website.

In Scotland, a roadmap was first published by the Scottish government in May 2020 to detail the lifting of lockdown measures. Since then, the route map has been significantly amended to reflect the prominence of the virus. The Scottish government has also published its own guidance specific to the retail, construction, manufacturing, food, household waste and recycling, forestry and transport industries. The guidance for Scotland largely mirrors the guidance issued by the UK government. However, the timescales for business reopening in Scotland are distinct. During Scotland’s phase 1, certain workplaces were allowed to reopen, including construction sites, outdoor workplaces and drive-through food outlets. Phase 2 began on 29 June 2020, and allowed indoor (non-office) workplaces to reopen. Phase 2 also allowed the reopening of street-access retail stores, with shops in larger centres reopening on 13 July 2020.

Scotland moved to its phase 3 of withdrawing from lockdown on 10 July 2020. The changes in this phase were to be introduced in stages but are now being curtailed again. Currently, a maximum of six people from two households can meet in outdoor spaces (under 12s do not count towards this number) and you cannot meet people in your home or another home socially unless you are part of an extended household. Work being carried out in people's homes may continue if the tradesperson does not have coronavirus symptoms and they or their household are not self-isolating.

Those who can work from home should continue to do so, but where work cannot be done at home, the employer should take steps to protect workers and ensure they have a safe place to work. The Scottish government has released guidance on how employers can work safely in different types of workplaces. Working from home remains the default where practicable and non-essential offices and call centres should not yet reopen.

New measures for the hospitality sector were due to come into force for 16 days from 6pm on Friday 9 October until Sunday 25 October inclusive. During this period, pubs, bars, restaurants and cafes can operate in certain areas of Scotland indoors between 6am and 6pm for food and non-alcoholic drinks. They can operate outdoors up until 10pm and alcohol can be served outdoors. However, within the areas covered by five Health Boards - Greater Glasgow and Clyde, Lanarkshire, Ayrshire and Arran, Lothian and Forth Valley – all licensed premises, apart from hotels for residents and cafes that are not serving alcohol, are required to close indoors and outdoors. Snooker and pool halls, indoor bowling alleys, casinos and bingo halls in the above Health Board areas must close from 10 October for two weeks.

The next review of the restrictions is due on 15 October 2020 and will consider any plans for further reopening of the country including the phased and limited return to non-essential offices. It is expected this will incorporate a three-tier system for local areas that reflects the approach taken in England

In many cases, a wholesale return of the workforce is unlikely to be appropriate or feasible, and so employers need to consider their strategy for potentially phasing the return of employees on a gradual and/or rotational basis – for example, being in the workplace on a one week in/one week out basis – and how this might be managed in practice. Any decisions on reopening the workplace must be taken in light of relevant discrimination laws, and care should be taken not to indirectly penalise certain groups over others.

If employers have limited resources or introduce rotating shifts, they need to ensure all employees have the necessary equipment to carry out their roles both at home and in the office.

Coronavirus Job Retention Scheme

The Coronavirus Job Retention Scheme (CJRS) has been extended to the end of October 2020, but with variations made to the scheme to allow partial furloughing and to introduce an employer contribution.

  • Although the changes to the CRJS came into effect on 1 July, employees on furlough will continue to receive 80% of salary up to GBP2,500 per month. However, the amount of government contribution will be tapered down, with employers accessing the scheme required to contribute at the following levels:
    • In July the scheme continued as before with no employer contribution.
    • In August, employers paid employer's national insurance and auto-enrolment pension contributions (which roughly total 5% of employment costs).
    • In September, employers paid 10% of the furlough pay, with the government paying 70%.
    • In October, employers pay 20% of the furlough pay, with the government paying 60%.
  • Flexible furloughing has been possible from 1 July. There is maximum flexibility with no central definition of part-time hours; employers have complete flexibility to decide the right arrangements for them and their staff. For example, where an employee is brought back for two days per week, the employer pays for two days and the furlough scheme would cover the other three days.
  • Employers are not able to furlough (partially or fully) any employees who were not previously furloughed for at least three consecutive weeks at any time between 1 March and 30 June – except for employees returning from statutory parental leave.

Job Support Scheme

On 24 September 2020, the Chancellor announced a new economic package to support jobs, including a new Job Support Scheme that will apply from November.

Features of the scheme that have been announced are as follows:

  • The scheme is aimed at protecting viable jobs.
  • To access the scheme, employees must be brought back to work at least one-third of their normal working hours, which will be paid by the employer. The government will pay a subsidy for one-third of the hours lost, and the employer will pay one-third.
  • This means the employee will receive 77% of normal pay for 33% of normal hours, of which 55% is paid by the employer and 22% by the government, with the government subsidy capped at £697.92 per month.
  • The scheme will last for six months from November.
  • All small and medium-sized employers can access the scheme.
  • Large employers can only access the scheme if their turnover has reduced. We do not yet know whether a particular level of loss of turnover will be required or how that will be evidenced.
  • Employers can access the scheme regardless of whether they furloughed workers under the CJRS.
  • Employers that bring furloughed workers back on this scheme can also claim the Job Retention Bonus (provided they qualify under the conditions of that scheme).
  • Employers who access the scheme will not be able to give notice of redundancy to employees in respect of whom they use the scheme before the scheme ends.

2. Does an employer have to give notice to employees to return to the workplace?

Any express agreement with employees about returning from furlough, which may include notice of return, should be followed. Otherwise, giving a reasonable amount of notice will be practical to let employees put in place any necessary arrangements at home, for example regarding childcare.

No guidance has been given in relation to the CJRS that suggests employers must provide a minimum notice period before asking employees to return to the workplace.

However, in order to claim under the CJRS, any worker must be furloughed for a minimum of three weeks, so employers should avoid taking employees off furlough too soon, or they will be unable to claim under the scheme.

3. Is an employer obliged to consult with employees/representatives about the return to work process?

The Health and Safety at Work Act 1974 imposes a duty on an employer to consult on measures to ensure workplace health and safety with either trade union- or employee-appointed safety representatives, or directly with employees.

This obligation is emphasised in the UK government's COVID-19 Secure guidance and the Scottish government guidance. There is likely to be significant interest from both trade unions and employees on how and when employers start to reopen their workplaces, and whether sufficient measures are put in place to protect the health and safety of the workforce.

As such, as they reopen employers must engage with trade unions/safety representatives/staff. Matters for discussion are likely to include how to achieve social distancing, the need for personal protective equipment, rotating work teams, changes in working hours, and remote working.

4. Are there any requirements or recommendations for employees to wear or employers to provide masks or other protective equipment in the workplace?

On 24 September 2020, new legislation was implemented requiring workers in certain businesses (such as retail, restaurants, banks and post offices) to wear a protective face covering when their business is open to the public and they are likely to come into contact with the public. A number of exemptions apply, but there are also sanctions for non-compliance in the form of a fine. The government is not otherwise advising people to wear masks or other PPE. In its COVID-19 Secure guidance, the government advises:

  • where a business is already using PPE to protect against risks other than COVID-19, this should continue;
  • additional PPE is not beneficial beyond what staff usually wear, other than for clinical settings and a handful of other roles for which the Public Health Agencies have recommended PPE;
  • workplaces should not encourage the precautionary use of extra PPE – the only exception is when responding to a suspected or confirmed case of COVID-19;
  • employers' risk assessments should address the need for PPE and in the very limited cases where an assessment does show that PPE is required, the employer must provide this free of charge to workers and ensure it fits properly; and
  • face coverings may be marginally beneficial in enclosed spaces where social distancing isn't possible. The guidance says wearing a face covering is optional and not required in the workplace, but also that employers should support their workers in using face coverings safely if they choose to wear one.
  • The wearing of face coverings is mandatory on public transport and, from 10 July 2020, will be mandatory in all Scottish shops. The Scottish government has also issued guidance recommending that people wear face masks when in other enclosed public spaces, but this is only a recommendation; it is not mandatory. The Scottish government’s guidance on the various types of workplace includes guidance on the use of PPE. However, all employers in Scotland should carry out a risk assessment to determine whether PPE is required, and even where it is not required, should support employees who choose to wear a mask.

5. When can business travel resume and what are the key considerations for employers?

The UK government's "Our plan to rebuild" recovery strategy document, published on 11 May, says that employees travelling to work should avoid public transport wherever possible and aim to travel to work by car or bicycle, or by walking.

The Scottish government’s guidance remains that people should travel to and from work only where they cannot work from home. However, this must be read in the context of the wider roadmap, which allows the reopening of various workplaces. Transport Scotland’s Transport Transition Plan encourages employers to offer flexible start and finish times for workers to avoid busy periods on public transport.

Employers' back-to-work strategies should include assessing the travel arrangements of staff and considering how the business might support them in avoiding public transport – for example, by providing additional car/bicycle parking or company-arranged/funded transport.

In terms of business travel, many companies will employ staff who are normally highly mobile and travel extensively either in the UK or internationally. For now, alternatives to this travel should continue to be preferred where possible. Employers should also consider the terms of their business travel insurance.

6. If schools remain closed, can working parents continue to work from home?

There has been no specific guidance on this question, and so it largely remains a commercial decision. If working from home or working reduced or amended hours are potential options for employees, it would be beneficial to agree arrangements of this type with working parents to assist the business with staffing capacity and to maintain workplace morale.

Parents with at least one year of service can take up to four weeks of unpaid parental leave per child per year, up to a maximum of 18 weeks per child. An employer must be given 21 days' notice before an employee can take this leave, but in the current climate employers may see this as a mutually beneficial approach and waive notice where appropriate.

All employees with 26 weeks' service have the right to request flexible working.

All employees, regardless of length or service, have a right to unpaid time off for family and dependents. Though this leave is usually a short-term measure while longer-term care arrangements are made, in the current circumstances there may be individuals who are entitled to take the entire school shutdown period as emergency time off if they are solely responsible for a child and have no one else to help.