May 14, 2020

Life in the Time of Corona, Part 2: Considerations for UK Employers on a Return to the Workplace


This update follows on from the Article we recently published on the many areas of planning that UK employers could usefully carry out in preparation for a return to work. We now have had the announcement from the Prime Minister on Sunday 10 May and the advisory document, "New Guidance Launched to help get Brits Safely Back to Work" published on 11 May. It sits alongside the rather longer document dealing with the strategy generally for recovery. Entitled “Our Plan to Rebuild”, this was published the same day and has limited information directly in relation to work matters. There are then specific guidance documents such as Working safely during COVID-19 in offices and contact centres, published by BEIS, on the same day which contains more practical guidance in relation to the sorts of details employers need to think about for office workers. 

This update looks at the guidance that has been published and the principles that can be derived from the published guidance. It then also looks at the recent ICO guidance on workplace testing which is likely to feature in many employers plans for a return to work.

We have published a separate note on the latest Furlough Guide update which came out on 12 May.

The Plan to Rebuild has two sections dealing usefully with work related matters. The New Guidance Note is divided into two sections. There is an overview Advisory Note, with five principles contained in it in connection with the return to work and then some sector guidance. 

The first point to note is that the reference in the title of the New Guidance Note to getting “Brits” back to work is slightly misleading because it only applies in England. The devolved governments elsewhere in Great Britain are taking a more restrictive approach.

Both the Our Plan document and the New Guidance document start by addressing the issue of returning to work. The Our Plan document states:


For the foreseeable future workers should continue to work from home rather than their normal physical workplace, wherever possible. …All workers who cannot work from home should travel to work if their workplace is open. Sectors of the economy that are allowed to be open should be open…The only exceptions to this are the workplaces such as hospitality and non-essential retailers, which during the first step the Government is requiring to remain closed.”

In the Our Plan document, Annex A: staying safe outside your home puts it rather differently;

"Work from home if you can. Many people can do most or all of their work from home, with the proper equipment and adjustments. Your Employer should support you to find reasonable adjustments to do this. However not all jobs can be done from home. If the workplace is open and you cannot work from home you can travel to work" (emphasis added).

This is of course rather different from the more obligatory nature of the guidance issued in the body of the document.

Section 1 of the Guidance Note states

"Work from home if you can

All reasonable steps should be taken by employers to help people work from home, but for those who cannot work from home and whose workplace has not been told to close, our message is clear: you should go to work. Staff should speak to their employer about when their workplace will open."

To compound matters the Working Safely document (Section 2) entitled ‘Who should go to work’ starts off by saying “Staff should work from home if at all possible”.  

There appears to have been some surprising confusion amongst Government Spokesmen as to whether this advice was intended to take immediate effect or at some point later on this week. Indeed the content of this Guidance Note, is contradictory, as although headed "Work from home, if you can" the content is rather contrary to that message.  Unless your business is one that is required to close (e.g. hairdressers, pubs, restaurants etc.) then if you cannot work from home, "you should go to work". 

We will look below at the legal consequences of such a sudden change in approach from even what the Prime Minister seemed to be saying on Sunday. But, although the message is not put consistently across the three documents we have reviewed, there can be little doubt that the Government is saying that it is not encouraging workers to stay at home any more if they cannot work from home. If you can’t work from home and your business is allowed to open in the current phase of lockdown you “should” go back to work.

Pausing there, we have been asked by some employers why there is no reference in the Government's three stage plan for the recent lockdown, to requiring employers whose employees are able to work effectively at home, to return to work in the employers premises.  We think the answer is relatively straightforward. First, the Government has no power to require employees to work at employers premises rather than at home. Secondly, if businesses are able to function perfectly effectively, in the new normal, with employees working at home, the Government has no interest in trying to change that particular working arrangement. It will be for employers individually to decide whether, for their business, extended homeworking or permanent homeworking is a feature of the new normal. Their return from extended homeworking will not be dictated by the Government.

Secondly, the Guidance Note says that employers should be carrying out COVID-19 risk assessments in consultation with workers or Trade Unions on return to work issues. This is, in reality, simply a restatement of existing legal obligations binding on employers. The Government has said in the Note that it expects employers to put up the results of those risk assessments on websites, where they employ more than 50 employees. Smaller employers should do the same “if possible”. Presumably the thinking is to build confidence for employees returning to work that the necessary safety precautions are being taken and to pressure employers into carrying out those assessments if they would otherwise be tempted to cut corners. And, of course, having posted such a risk assessment, if it is shown to be inadequate or it is not followed, then that will be a jumping off point for any claims by employees if they feel that their health has been compromised by their employer.

The third guidance principle is that the employer should maintain two metres social distancing wherever possible for employees. It is said that this is likely to involve redesigning workspaces, staggering start times and changing seating layouts in breakrooms. Many employers are already taking proper and detailed advice on the arrangements to apply to their offices, and this element of the guidance is entirely expected, as we foreshadowed in our previous note. 

The New Guidance Note says that where people cannot work two metres apart then employers should "manage transmission risk". This indicates the level of risk which the Government is willing for employees to accept. It is probably entirely realistic, if most businesses are to return to work, that in some cases it will simply not be possible to combine the maintenance of social distancing and carrying on the business. The Government is not saying that if businesses cannot maintain social distancing, they should remain closed. Quite the contrary. For such non socially isolating workplaces, the Government is advising that employers should look at putting barriers in shared spaces, collating shift patterns in fixed teams to minimise people coming into contact with each other. Of course a risk assessment will have to be much more detailed and specific to the workplace in question. The Working Safely document does raise the possibility that the employer should consider whether a particular activity should continue to be performed if it cannot be done in accordance with  the social distancing guidelines and if the problem is limited to a particular aspect of a business this is probably a fair question to ask. In the context of clinically vulnerable employees attending such non socially distancing workplaces, the Working Safely document suggests that such individuals, if they cannot work from home should be offered the safest on-site roles, and if they cannot maintain social distancing then the employer is to consider whether their attendance at work involves an acceptable level of risk. 

Finally, the Guidance Note also highlights the importance of reinforcing cleaning processes to try and reduce the risk of transmission from surfaces. Employers should provide hand washing facilities or hand sanitisers at entry and exit points. 

In the Guidance Note there is then a slightly more detailed sector analysis, looking at particular arrangements for employees in those sectors. 

Points arising from the Government's Return To Work Plan and published Guidance

The Government briefing on Sunday and then the follow up on Monday, has received a lot of criticism for being unclear, muddled and for undermining confidence in return to work rather than fostering. Whatever the rights and wrongs of those views are, there could be little debate that the country seems to have progressed extremely rapidly to a situation where, from Sunday 10 May, or Wednesday 13 May, depending on your perspective, a shift in policy has been announced where the expectation is that individuals who cannot work from home will go back to work. There is advice to avoid the use of public transport when commuting to work, but without any real indication of what the alternatives will be for employees who have no choice but to use public transport to get to and from work. There are something like six million daily trips on busses in London alone, more than one million commuters come onto trains into London and nearly 50% of London's commuters rely on the Underground.

There has been significant criticism, that the Government's announcement has left too little time for this sort of planning which they are expecting to happen before the return to work.  Certainly the scenes on Monday 11 May at some London stations were surprising, in the number of people using transport indicating that some form of return to work was a reality for many.

In fairness to the Government however, employers should note that there was no requirement for any employer to open its business. The Government's guidance was that employers are permitted to open businesses. Moreover the Guidance Note did make clear that employees should discuss with their employer when their business was ready to open. Businesses that are opening on Monday or Tuesday this week are therefore doing so on the basis that employers are saying to employees that they are ready to open and safe to work in. That is the judgment call for the employer and not for the Government. Secondly of course, the Furlough Scheme remains in place until 30 July unchanged and in some tapering form after that date. Therefore, employers who are making use of the Furlough Scheme as part of their business measures during the pandemic, can continue to make use of that Scheme and therefore the time that is bought by that Scheme, to do any necessary planning. On that basis the choice of when to reopen remains entirely with the employer.

The next point to make is that there has rightly been significant commentary on the extent of an employer's legal duties under the health and safety legislation to take reasonable steps for the health and safety of the employees. And, unequivocally, it is important that employers comply with their legal duties. This week brought news that a legal claim is threatened by one trade union for a judicial review claim, in connection with health and safety at work for workers in the gig economy. 

However, we think that for employers to view the main objective of the risk assessments and health and safety precautions which they are undertaking as being to achieve basic compliance with the law, for fear of legal sanction, is to view matters from the wrong end of the telescope. First, it is questionable how significant the legal risks arising from any breach of the legal obligations will be, excluding exceptional cases. There appear to be significant inhibiting factors which would reduce the risk of a claim by, or in respect of, an employee who becomes ill after returning to work because of inadequate health and safety planning by the employer. In part, employers will know that employees are very unlikely to claim constructive dismissal in the current climate, given the near impossibility of finding alternative employment for many employees. Secondly, there are not likely to be many individual cases of an employee claiming that the employer’s breach of the health and safety legislation has led to the employee catching the virus. Thankfully, for the most part, many people who catch the virus seem to make a full recovery, unpleasant though the process is.  Others seem to hardly be suffering at all. Clearly, this would mean that any personal injury damages awarded would be of limited value, making it unlikely that many would choose to embark on litigation. In any event issues of causation might make it difficult for employees to show, to a standard required by the Court, that the damage suffered (i.e. catching the virus) was caused by the employer's negligence or other breach of legal obligation. It is possible of course that collective action in large scale employers, particularly where there is a Trade Union representing staff, might be feasible. We think this would be the exception rather than the rule.

Instead we think employers should see health and safety measures being taken by them as being judged, not primarily in light of a legal standard applied by a Court at some point down the line, but by the willingness of employees to come back to work in the first place and stay at work as part of a sustained return to work. In that context the comment by the CBI in the New Guidance Note is particularly perceptive. Carolyn Fairbairn, Director General of the CBI, points out that "Unless people feel safe, employees won't return, customers will stay away and the restart will falter, harming livelihoods and public services". The health and safety requirements which are to be considered and complied with by employers are as much about justifiably promoting confidence in employees to come back to work and customers to trade with the business and so to give businesses the best chance of surviving. To that extent the Court which is going to judge employers measures is the Court of Public Opinion rather than a Court of Law. In the light of this employers may be well advised to take steps which, even if not strictly required under the letter of the law, will be seen by their employees as demonstrating the right levels of concern for their health and safety. 

Commuting to Work

One of the key health and safety issues, particularly for those working in London, is the extent to which commuting forms part of any sensible return to work strategy. If the success of the return to work is going to depend, in part, on the willingness of people to attend work and the confidence with which they do so, then it is possible for an employer to have put in place very sensible arrangements for working within its premises but for the travel to and from the premises to defeat any attempt at encouraging staff to come into work on a regular basis. Many employers are talking about an initial return to work which would be on a voluntary basis. This would need to be carefully managed, so that staff do not feel under pressure to join any voluntary return to work, but also to ensure that the numbers returning could be carefully controlled. However, employers will at some point need to consider whether requiring individuals to return to work is feasible. This could arise in a number of ways. First, it might be necessary for a particular team to have all the members of the team attend work, in order to function effectively. Secondly, an employer might find that there was simply insufficient volunteers to make a return to work feasible in particular departments.  Further, an employer might take the view that employees are clearly not working effectively at home and their return to work is necessary for those purposes.

In those circumstances an employer is, to a large extent, master of its own domain, when it comes to making safety arrangements in the office. However, the much trickier issue of the travel to and from the office, which is outside the employer's control, may be a problem.

In that context Section 44 of the Employment Rights Act 1996 is going to become a key issue for employers planning a return to work, and who are facing concern from potential commuters about the need to travel on public transport.

Section 44(1) provides protection to employees in circumstances where they decline to work because of a serious and imminent danger. The relevant parts of the section read:

"An employee has the right not to be subjected to any detriment by any act or deliberate failure to act by his employer done on the grounds that…

(d) in circumstances of danger which the employee reasonably believed to be serious and imminent and which he could not easily have been expected to avert, he left, or proposed to leave, or (while the danger persisted) refused to return to his place of work or any dangerous part of his place of work. 

(e) in circumstances of danger which the employee reasonably believed to be serious and imminent he took (or proposed to take) appropriate steps to protect himself or other persons from the danger.

For the purpose of section (1)(e) whether the steps which an employee took (or proposed to take) were appropriate, is to be judged by reference to all the circumstances including particular knowledge and the facilities and advice available to him at the time".

It is immediately apparent that an employee who believes that their commute to work at this point is too dangerous to permit a return to work, is likely to point to ERA section 44, as providing significant protection against any adverse action by the employer connected with that failure to attend work. If the employee is covered by the section then any detriment (e.g suspension, reduction in pay, disciplinary action etc.) is a breach of the legislation and will give rise to a damages claim. There is no cap on the damages which can be awarded.

The key points are of course, for a commuter declining to commute and claiming protection under this section are:

  1. Circumstances of danger, and
  2. the employee reasonably believes the danger to be serious and imminent, and
  3. either the employee takes appropriate steps to protect himself or other persons from the danger, or the employee has left or remained away from work because there were no appropriate steps he could take which would have been expected to avert the danger.

In the context of this problem, employers will probably have to accept that travelling on public transport is something which is a potentially dangerous act. Of course much may depend on the alleged degree of overcrowding or the precise nature of the risk the employee is identifying. Not all trains will be equally crowded. Some bus operators may have much better systems for cleaning public seating and so on. But in general terms given that the Government's advice is to avoid using public transport where possible, there is clearly the basis for arguing that there are "circumstances of danger" involved in a return to work. 

The question then is whether the employee will reasonably believe that danger to be serious and imminent. Again, if the employee is being required to undertake travel to work with effect from Wednesday 13 May, then the danger, whatever it is, is clearly "imminent". The issue is almost certainly going to be the extent to which the employee reasonably believes it to be "serious". It is worth noting in passing that the Directive (the framework health and safety directive 89/391/EEC) does not contain any reference to the employee merely having a "reasonable belief" in serious and imminent danger. It seems that when the Directive was transcribed into English law, it was strengthened in favour of the employee. This could yet prove to be very significant, since it moves the focus from whether or not there is actually serious and imminent danger to whether or not the employee believes that it is imminent and serious. 

In the context of commuting, if there are circumstances of danger and the employee reasonably believes the danger to be serious and imminent, then the issue as to what appropriate action the employee could take to avert the danger, presumably will focus on whether the employee can, themselves, take safety measures to enable commuting to be conducted sufficiently safely that it would not be reasonable to view it as serious danger. This could include for example the purchase of a protective face mask. Alternatively, it could look at whether the employee is able to commute by any other means to work which does not involve use of public transport. All of this is against the background that the risk profile will be different for each individual commuter and the medical insights on this subject are still being developed.

It is almost enough to make you wish for detailed Government guidance on the subject.

It is in this context that Jason Braier of 42 Bedford Row has posted a number of interesting comments on Twitter about the case of Edwards v The Secretary of State for Justice (UKEAT/0123/14/DM).  

In brief, the case concerned some prison officers at HMP Dartmoor who were claiming that they had suffered a detriment under ERA section 44(1)(e) when they refused to travel to work because of adverse weather conditions on their way to the prison.

On the day in question the prison guards attempting to commute to work found the road to the prison was marked as "closed" and so instead they drove to the default agreed pick-up location for a transport service to be made available by the employer. This was in line with the expected practice in cases where individuals could not make their normal way to work.  However, a number of the prison guards refused to get on the transport made available on the grounds that the road they were going to use to go to the prison was closed. There was a conflict of evidence about the nature of the closure and whether the prison guards had been made aware that police had only marked the road closed for advisory purposes and furthermore that the police had apparently authorised the use of the particular 4x4 vehicles which were to transport the guards to work. The Claimants case was that they were not aware of this, and their understanding according to the evidence given by some of them, was that driving on a closed road was an offence. They were concerned that the closure of the road was a clear indication that driving conditions were unsafe.

The Claimants lost at the Employment Tribunal because the Judge felt it was significant that many of those attending at the temporary pick up location did get on the transport provided by the employer. The prison guards who refused, were in a significant minority. None of those who did travel were involved in any untoward incident or accident on the journey to work. Although the Judge accepted that there might be heightened risk, given the weather conditions, the Judge said that he felt it was impossible for the Claimants to assert that they had a reasonable belief that the circumstances were particularly dangerous given the very significant number of their colleagues had made the same journey without difficulty or danger and had been prepared to make the trip. 

However in the EAT, the Judge allowed the appeal and remitted the case for further consideration. There seems to have been no dispute that section 44(1)(d) and (e) applied to an employee's concerns about dangers involved in travelling to work. This is directly in point for employees worried about using public transport.

Secondly, the EAT was clear that the cases had to be considered individually for each Claimant. It was not enough to say that because some colleagues had made the journey without difficulty or danger, it was not open to the Claimants to still have a reasonable belief in that danger was significant and imminent. The question was to focus on what each Claimant knew at the point when they declined to get into the transport provided. Given that the circumstances seem to have been pretty confused, then this is an important point and really flows from the fact that the key test is whether the employee reasonably believes that the danger is serious and imminent. It also recognises that two individuals, both acting reasonably, might come to a different view as to whether or not circumstances were such that there was serious and imminent danger. If one person is willing to run the risk that does not detract from the fact that the other person, acting reasonably, may be entitled to decline to run that risk. If you chose to run the risk of serious danger, then my ability to decline to run that same risk is unimpaired.

Bringing this back to the commuting issue, it is key to remember that any analysis of a given situation is going to be fact sensitive. Here, one helpful factor for employers is that the employees faced with commuting, and concerned about doing so, are probably going to have a period of time in which to conduct research and to inform themselves as to the real scale of the risk they might face when commuting. This is in contrast with the Edwards case, where individuals were being asked, in what were apparently quite confusing circumstances, to evaluate the risk. This period before an employee is required to commute may encourage a Tribunal to expect a more objective view of the situation from employees attempting to rely on section 44(1)(d) or (e) to decline to attend work.

Government guidance currently recognises that public transport is to be avoided where possible. There is therefore a recognition, in the Government's own guidance, that commuting carries with it a degree of risk. But this perception could easily be affected if research shows that, for example, commuting for, say, less than 30 minutes carries with it a low risk of being infected, even if one is stood in close proximity to someone, provided face masks are being worn (to take one example).    

In this context, what is an employer to do? We anticipate that most employers will wish to be reasonable. No employer is likely to wish to discipline or dismiss an employee for refusing to attend work, to create what could be a highly damaging claim, both legally and from a public relations and employee  relations perspective. On the other hand, employers may feel that they have to draw the line in the sand, where they are requiring individuals to come in, as otherwise any return to work might become completely disorganised. Equally with the furlough scheme being wound down from 1 August clearly many employers will want to encourage a return to part time work for furloughed employees. This may not be popular with furloughed staff.

This leads back to a point which we mentioned in our previous guidance namely the importance of clear communication both with any collective bodies at work and with individual employees. There can be no drawback for employers to discussing commuting with their health and safety staff committee. Advice can be taken from experts on steps that commuters could take to lessen any risks. The employer may be able to stagger start times or ensure that all staff work from home for part of the working week. If, based on the current medical advice, and consultation with staff, the employer is able to hammer out a policy which applies to the employers expectations for commuting, then this is far more likely to assist an employer in defending a claim under section 44 if the need arises. And of course any policy addressing commuting to or from work should, presumably, make clear what is expected from individuals who have an enhanced risk profile, underlying health conditions, pregnancy etc. for so long as the medical evidence indicates that individuals are particularly vulnerable.

Finally, if the situation does arise, employers should be prepared to allow some leeway for a reasoned discussion to take place, rather than an emotive argument. If the employer wishes to reassure the employee that travelling into work is acceptably safe, this is far more likely to happen if the employer allows the employee a little time to reflect on what they are being told and/or looks to be willing to compromise over, say, the precise date of return. Additionally, the employer will be able to provide facts and a rationale for why commuting is not a high risk or alternatives that the individual might well be able to consider as an alternative to travelling by what is perceived to be a high risk transport. It is noteworthy in the Edwards case that the EAT viewed it as highly relevant whether or not the individual Claimants knew that the police had not officially closed the road, and had sanctioned the use of the particular cars to transport them. Had they known this it would have been much more difficult, according to the EAT, for the Claimants to assert that there was serious and imminent danger and for that belief to be reasonable. Both employee relations and employment law and common sense all point to the fact that an employer is likely to do far better by allowing an employee who is troubled about a return to work sufficient time to prepare and for the employer to engage in a dialogue about the safest way to make this happen.

Workplace testing – guidance for Employers

One of the frequent questions raised by employers is about the acceptability of some form of workplace testing for employees and potentially others attending workplace premises. In particular people are keen to understand whether there are specific legal concerns that they should consider before embarking on testing.

We now have the ICO guidance, which has been published this week on the subject of workplace testing. It is relatively short and very clearly written. There are a number of key points. Overall it is clear that the ICO is keen that data protection is not seen as a barrier to sensible and appropriate measures being taken by employers to protect the health and safety of the workforce. As such, the tone of the guidance is very measured and seeks to facilitate appropriate testing rather than put obstacles in the way. 

This is exemplified by the introduction to the Guidance Note which states "Data protection law does not prevent you from taking the necessary steps to keep your staff and the public safe and supported during the present public health emergency, but it does require you to be responsible with people's personal data and ensure it is handled with care".

The note then sets out a number of key points to be considered by employers. Generally, it is permissible to process health data about COVID-19 if it is necessary for the purpose of carrying out the obligations of the employer (which in this case of course will predominantly be the employer’s health and safety obligations). It will be important that the employer has the appropriate policy document in place. The document is the standard document employers should have explaining the data control procedures for securing compliance with personal data processing principles. Employers are encouraged to do a data protection impact assessment, in order to ensure that the testing is compliant. As is normal this would look at the activity being proposed, data protection risks and whether the testing and then consequent processing is necessary and whether proportionate safeguards have been put in place. In this context it is obviously important to avoid collecting unnecessary or excessive information.  The example is given in the ICO Guidance Note that the outcome of the test may be important to the employer but information inadvertently gathered about underlying conditions does not need to be retained or processed. It is also important, according to the ICO, to retain a record of the date of any test results given that individuals health may change over a period of time. 

The ICO Guidance accepts that it will be appropriate in some cases to keep lists of employees who have symptoms of the virus or who have been tested as positive but to ensure that the use of such data is necessary, relevant and for an appropriate purpose. It is easy to envisage, for example, that information on who has or has not tested positive may become utterly irrelevant after a period of time. The Guidance Note focuses on the need for transparency, and that the employer should be clear, open and honest with the employees about how it proposes to use the personal data. Whilst this is obviously an important principal generally, it is particularly important with health information. At a minimum, employees need to know what personal data is required, what it is to be used for and who the employer will share it with, as well as how long the information is to be kept for. 

One of the questions, and which we have written about previously, is whether if someone has tested positive, that can be shared with other employees. 

In line with previous guidance from the ICO, the Note says that it is permitted to notify staff about potential or confirmed Coronavirus cases. However, the Note continues to state that the employer should avoid naming individuals if possible and the employer should not provide more information than is necessary. The ICO confirms that data protection does not prevent the employer doing its duty to ensure the health and safety of all its employees and so, in this context, the Note broadly states that there are many routes available to share data, using some of the conditions and exemptions in the DPA 2018. This comes immediately after flagging the employers duty to ensure the health and safety of all employees. It may well be that the ICO envisages that employers will rely on safety obligations as justifying even this processing of personal data by disclosing the identity of individuals who have become infected. We have previously indicated that it may well be acceptable to disclose the individual’s name to people who may be directly impacted by virtue of having been in contact with the individual for a prolonged period and in close quarters. However, such information probably should only be disclosed on a strictly need to know basis and against assurances of confidentiality by the individuals concerned. 

The Note also considers whether it is appropriate to use temperature checks or thermal cameras on site as part of a testing programme or monitoring of staff. The ICO points out that this is more intrusive technology. Therefore again it is important to be clear about the purpose and context for the information, why it is necessary to obtain the information in the first place and why it is being obtained through these means. It is also important that employees are fully aware of the existence of the information that has been gathered and how it has been gathered and what it is to be used for. It is also appropriate to think about whether the same results can be gathered through less intrusive means. Subject to those points it seems that there is no insuperable problem for employers wanting to use such technology provided it is done appropriately.

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