Returning to the Workplace – Thinking Ahead

Published June 12 2020

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Many non-essential retailers in England will be planning to open next week and other employers will be trying to plan ahead as best they can for when they are able to re-open their workplace, whether it’s re-opening the business for the first time since the start of lockdown or employees returning to the workplace after working from home. With this in mind, we take a look at some employment law matters employers may need to consider.

1. Employees unable/reluctant to return to the workplace

This will be an issue some employers are likely to experience as more workplaces start to re-open and can be down to a variety of reasons. It could be that an employee:

  • Has concerns about their health and safety either at work or on the journey to work;
  • May have caring responsibilities which impact their ability to return to the workplace;
  • Has concerns about their health if they return to the workplace or that of those they live with;
  • Has a disability which impacts their ability to return (this can give rise to an employer’s duty to make reasonable adjustments);
  • Has suffered a bereavement and is still greatly affected by this;
  • Has lost confidence after being away from work for a significant time.

If an employee refuses to return to work, says they are unable to do so, or expresses concern about it, it will be very important that employers handle the matter appropriately and sensitively. The first step in most cases will be to talk to the employee to find out exactly what their situation is / concerns are, this will help to identify how to manage the matter.

Whilst it’s understandable that employers may wish to deal with the situation quickly and in some cases, firmly, it’s important to be aware that trying to take action, such as disciplinary action, will not necessarily be appropriate. Employees have a number of employment law protections, some of which apply from day one of employment. These include the right not to be discriminated against and rights in relation to health and safety such as protection from being dismissed or being subject to a detriment for refusing to attend work due to a reasonable belief in a serious and imminent danger to health and safety. With considerations such as this in mind it’s important for employers to seek advice on the facts of their case from Kingfisher Professional Services Ltd before taking any action in relation to an employee who is reluctant or unable to return to the workplace.

2. The need to change employee’s terms and conditions

Some employers may identify that they need to change employee’s terms and conditions, either for a short time or permanently. This could include changes such as reducing employee benefits. If an employer wishes to make changes it’s important for them to identify exactly what the change is they wish to make, the reasons for it, when they wish to implement the change, what the implications of it will be for the organisation and for potentially affected employees and how many employees would be affected. Changing terms and conditions will usually involve consulting with employees with a view to gaining their agreement.  However, it’s important for employers to seek advice on the facts of their case, especially if 20 or more employees may be affected by the desired change as special rules can apply.

For employers who may wish to bring employees back from furlough on a part-time basis, this will be permitted under the government’s flexible furlough scheme from July where certain requirements are met (see our earlier Legal Update Furlough Important Update for background information). The government will be releasing details about how flexible furlough will work shortly and we will be updating employers in due course. Again, it is important for employers to seek advice before taking action in relation to furlough.

3. Competing holiday requests

As lockdown continues to be gradually eased in England employers may find that they start to receive holiday requests / an increase in holiday requests. With sunny summer weather hopefully on the way and some leisure activities such as trips to the zoo becoming available, employers may start to find themselves with competing holiday requests from employees who are working. It’s important for employers to act fairly, reasonably and consistently when it comes to holiday and to think ahead about how it can be managed.

If you have an employment law matter you would like assistance with, please do not hesitate to contact Kingfisher Professional Services Ltd as we are happy to help.