BLM's head of employment law London Julian Cox on the government's 'Our plan to rebuild' COVID-19 recovery strategy
New guidance released today from the UK government announced a number of measures needed on UK’s ‘road-map to return’ to work. Following on from the Prime Minister’s announcement (Sunday 10 May, 2020) the new guidance – Our plan to rebuild: The UK Government’s COVID-19 recovery strategy offers some more detail as to who should return to work*:
As an overview, the headline points for employers to be taken from the guidance are as follows:
- ‘For the foreseeable future workers should continue to work from home rather than their normal physical workplace, wherever possible’.
- According to Annex A ‘your employer should support you to find reasonable adjustments to do this’.
- ‘All workers who cannot work from home should travel to work if their workplace is open’.
- ‘As soon as practicable’ workplaces should follow ‘COVID-19 Secure’ guidelines – new safety guidelines that set out how each type of workplace can be adapted to operate safely to be released ‘this week’.
- In the workplace the number of people that an individual comes into contact with regularly should be limited.
- Examples given of changing shift patterns and rotas ‘to match you with the same team each time and splitting people into smaller, contained teams’.
- Making adjustments to the workplace to enable maintaining of social distance.
- Ensuring indoor work areas are well ventilated areas.
- Allowing the use of more entrances and exits and staggering entry and exits where possible.
- Cleaning of communal surfaces such as door handles and lift buttons and communal areas such as bathrooms, kitchens and tea points.
- Avoiding crowds including avoiding peak travel times if you have to use public transport. Walking or cycling to work where possible.
- ‘Face coverings’ to be worn in enclosed spaces where social distancing is not possible.
- Annex A reiterates the duty of employers to ‘assess and manage risks to your safety in the workplace.’ It refers to guidance being issued to employers to help employees do this. (Annex A not attached, so we assume this will follow shortly).
- Sectors encouraged to re-open include:
- Food production
- Scientific research in laboratories
- Sectors that MUST remain closed include:
- Hospitality and non-essential retail
- Nannies and child-minders can return to work.
- ‘The government is examining more stringent enforcement measures for non-compliance’ and will impose ‘higher fines’ as people return to work.
Julian Cox, head of employment law, London at BLM commented:
“Given the extent of the social distancing measures referred to and the guidance still to come, I would strongly advise employers wait until they have that guidance, have an opportunity to review it, carry out a risk assessment, introduce the social distancing guidance recommended and a strategy for implementation before inviting employees back to work so as to avoid unanticipated liabilities for their businesses. All of this will take time and legal advice ought to be obtained.”
"Workplaces need to be ‘COVID-19 secure' before re-opening for those employees that can’t work from home. Otherwise the risk is that employees will refuse to return to work as they don’t feel safe and should employers then look to dismiss or the employee look to resign as a result of being compelled to return to work, then that may result in claims for unfair dismissal based on health and safety reasons, whistle-blowing and constructive dismissal where the employee also alleges there has been a fundamental breach of the underlying duty of trust and confidence between employer and employee entitling them to resign, whether the employee was right to feel aggrieved or not.”
"A dismissal for whistle-blowing and/ or health and safety reasons represents an automatic unfair dismissal and an employee does not need to have 2 years’ service to bring it, creating further peril for employers."
‘In addition any return to work ought to be limited to the sectors encouraged to re-open. Essentially the advice hasn’t deviated much - that employees should continue to work from home where possible.”
*Please note that this list of measures is non-exhaustive. The full report is available here
Disclaimer: This document does not present a complete or comprehensive statement of the law, nor does it constitute legal advice. It is intended only to highlight issues that may be of interest to customers of BLM. Specialist legal advice should always be sought in any particular case.