RETURN TO WORK Q&A
with Trivium London Consulting
Dated: 30th September 2020
The implications surrounding Covid-19 have substantially changed how businesses operate daily. From workforces shifting to working from home to now staggering their return to the office, it has brought several new scenarios into play which companies have not had to previously face. To discuss some of these current issues, we had an interesting Q&A exchange with the HR consultancy, Trivium London Consulting.
Disclaimer: This information is for educational purposes only and does not constitute legal advice.
It is recommended that specific professional advice is sought before acting on any of the information given.
What are the most important factors an employer should consider when it comes to employees returning to the office?
Employers have a duty to protect the health and safety of employees and, under the Employment Rights Act (s.44), employees are further protected if they refuse to return to work because they reasonably believe there is a serious and imminent danger. Coronavirus would be classified as a danger and therefore a reason not to return to the office. In the current climate you should be consulting with your staff to find a mutually agreeable situation - flexibility is key.
Practical steps should include:
Risk assessments with staff consultation – continuously updated;
One to one meetings - to understand an employees’ personal situation (work challenges, homeworking, caring responsibilities, health) etc;
Issue new ‘working from the office procedures’ and communicate to staff; and
Provide training - a mandatory requirement under the Health and Safety at Work Act 1974. The Health and Safety Executive (HSE) will be doing spot checks and issuing sanctions to ensure workplaces are safe, and that employers have taken reasonable action.
Following the announcement on 22nd September 2020 you should not force staff to attend the workplace if they are uncomfortable with this. All staff should be given the opportunity to discuss personal circumstances and reasonable adjustments should be made where possible.
How do employers show their staff flexibility in their return to work plans?
The current advice is clear: work from home ‘where possible’. If a job function requires you to attend the workplace, this should be assessed based on the particular tasks you carry out as part of your day job.
The HR buzzword of the month is “Hybrid”, a mixture of home and office working, with collaborative teamwork taking place in activity-led workspaces.
In this industry, the majority of firms have only just started to consider formalising plans for hybrid working but elsewhere, early adopters are starting to face challenges which are driving the need to ensure an ‘all inclusive’ work environment is offered. There is a danger of creating a two-tier workforce: those present and visible in an office and those who work from home. We are starting to see a split, which is not necessarily intentional but firms need to address this. There is no doubt that the measures to control the spread of Covid-19 are essential but firms should not ignore the negative impact these have had on the Diversity and Inclusion agenda.
What should a firm do if an employee doesn’t want to return to the workplace?
You should try to find out why the employee does not want to physically return and address their concerns. If it is related to health, shielding or caring responsibilities, you should ensure you have taken all steps necessary to reduce the risks in the workplace and communicate these but nonetheless allow them to work from home if possible.
If the concern is related to using public transport, discuss other options or offer staggered start times so they are not travelling in a busy period.
Can you force an employee to be tested for COVID-19?
Information about employees' health is a special category data under the General Data Protection Regulation (2016/679 EU) (GDPR). Employers considering testing employees for coronavirus should do so only if they can comply with their GDPR obligations concerning the data processing.
The ICO has published guidance on testing staff in the workplace. You can rely on your employer H&S duties as a ground for processing special categories of data but you should carry out a data protection impact assessment before you start testing and only process the data if it is necessary and proportionate.
Can an employer inform its staff if a colleague has tested positive for coronavirus?
This is a GDPR concern, so you would inform staff if a colleague within their working environment has tested positive, giving all parties an opportunity to take the steps necessary to prevent further transmission. However, you should keep the name of the employee confidential where possible and follow the rules of data protection.
What can one do as an employer if an employee does not follow social distancing rules or company hygiene measures?
If you have given clear instructions as to what is required of employees and explained why the procedures are important then you are entitled to take disciplinary action against the employee and follow your normal disciplinary policy. However, the action you take must be proportionate to the action or inaction of the employee. They should have been advised that this could lead to an act of gross misconduct which could lead to dismissal, notwithstanding that a minor failure to follow a Health & Safety instruction would normally be dealt with informally.
Our clients are all firms with under 100 staff with the majority around 15 – 50 so I would suggest it is far easier to control a smaller office working environment. The COO needs to demonstrate how H&S is taken seriously and the Company should be reinforcing controls as highlighted in their risk assessments.
Written by: Tracey Robb of Trivium London Consulting
Trivium London Consulting provides HR director-level consultancy services to the London asset management sector.
We pride ourselves in giving clients pragmatic advice within the framework of UK employment law and supporting the senior management team throughout the employee lifecycle.
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