Caroline Prosser, legal director at Liverpool law firm Hill Dickinson, outlines some of the key issues facing companies looking to adjust to life after the coronavirus lockdown

 

Four months ago, nobody had even heard of coronavirus (COVID-19), yet in that short space of time, the virus has utterly transformed the employment landscape in the UK.

Like in any crisis, there have been some winners and some losers. For some, business is booming and they are actively recruiting additional staff to meet extra demand, but for the majority of businesses the enforced lockdown and social distancing measures have had a devastating economic impact.

Estimates suggest that up to 30% of the UK workforce has been furloughed and many more are currently working from home, whilst simultaneously needing to look after children due to the closure of schools and childcare providers. 

Thankfully, there are tentative signs that the UK has reached its peak of infections and that the infection curve is starting to flatten. There are also signs that the conversation is starting to switch towards how the UK can begin to lift the lockdown restrictions and get the economy working again.

It is safe to assume that lockdown measures will not be lifted overnight; instead, the restrictions will be lifted in a managed way. It seems probable that lower-risk parts of the economy will be allowed to get back to work first. Higher risk sectors, including hospitality and leisure, are likely to see lockdown continue for a while yet, and then see a gradual release of restrictions.

When employers are given the green light to resume operations, they will still face many challenges around deciding how to safely operate and reintegrate their workforce. In this article, we consider some of the main issues employers are likely to face, and how they can prepare for life after lockdown.

How can we prepare our business for a safe return to work?

‘If you fail to prepare, you are preparing to fail’ (Benjamin Franklin). Employers would be wise to heed these words of wisdom and use this time to start to prepare their businesses for life after lockdown.

Start thinking now about how you can adjust your old ways of working to make the working environment safer for your staff, visitors and customers. Employers have a number of common law and statutory duties in relation to health and safety at work and the starting point for any employer will be to familiarise itself with current HSW guidance. Consider how the usual ways of working can be adjusted to allow for greater social distancing and additional hygiene measures.

Consulting with staff and managers about the proposed measures may highlight areas of concern and/or solutions, which you have not identified in your risk assessments. Staff and managers will need to be retrained in the new protocols and procedures.

Consider if any changes need to be made to your business premises to reduce hot spots of contact, which may increase the risk of spreading the virus.

 

Will changes to the size and composition of your workforce be needed?

Many businesses will find that lockdown, and the post-lockdown economic shock, will have changed their business needs.

It may not necessarily make good business sense to re-start the business after lockdown is released, with the same number of staff, doing the jobs they did before the pandemic. Business survival may make it necessary to consider re-shaping the workforce via restructures and/or redundancies.

To reduce the risk of legal claims, these processes must be handled fairly and within existing legal boundaries. Consider the impact on staff morale if they have already had to take a pay cut with a view to protecting jobs, only to find that job losses are in fact inevitable.

For those staff being retained, consider whether they can continue in their current roles. It may be necessary or desirable to transfer some of them to new duties (which may involve some retraining). For example:

• Should staff who have had confirmed coronavirus (and who may therefore have some degree of natural immunity from re-infection) be transferred to customer-facing duties?
• Can you protect the most vulnerable staff by moving them away from frontline duties to a role in which they face a lower risk of infection?
• To the extent that it is practicable to do so, should staff continue working from home wherever possible?

How can we reintegrate staff after lockdown?

This may turn out to be more of a challenge than many employers think. The starting point should be to consider staffing needs to get the workplace ready for full re-opening, both in terms of staff numbers and in terms of skill sets.

This may mean that some staff are brought back from furlough leave earlier than others and this selection should be handled fairly and be capable of objective justification.

Staff being asked to return from furlough leave should be given sufficient notice to prepare (and account should be taken of any ongoing childcare issues they may have due to the closure of schools and nurseries).

If some staff have been working full-time, whilst others have been on furlough leave, there may be tensions amongst staff upon a return to work. Staff who have continued to work may not be keen on relinquishing new duties and responsibilities they have undertaken.

Those who have been on furlough leave may feel marginalised upon their return to work, as if their ‘place’ in the workforce is under threat. Tempers amongst staff may quickly fray. Managers should be prepared to mediate and resolve these tensions, through agreement wherever possible.

The starting point is that employees remain employed in their previous positions, so any change to this on return will require a degree of discussion and consultation with staff and, in some circumstances, changes to the contract may be required.

 

Staff who have been able to work remotely may not be keen on giving up that flexibility and their newfound freedom. An increase in flexible working requests seems highly likely and employers may find it harder than ever to justify rejecting such requests, in circumstances where agile working has proven to be successful over recent months.

Businesses will also need to restart processes that have previously been put on hold such as disciplinary and performance, and advice should be sought in respect of absence and how to treat those absences related to coronavirus.

What can we do to help staff with their mental health?

Many staff will have seen their mental health suffer during the last few months. Some staff may have faced the loss of loved ones and may need additional support to manage their grief.

The isolation during lockdown may have had a damaging impact on the mental wellbeing of others, leaving them lonely, anxious or depressed. Among staff who have continued to work, managing the challenges of home schooling whilst also working may have been exhausting and left them very stressed out.

Employers should consider how robust their support mechanisms are to deal with the challenges these issues may bring and improve them where possible.

How far can you go to monitor and control the health of your employees?

Coronavirus testing in the UK is currently limited by the government to those who are severely ill, key workers and their families. Antibody testing is not yet widely available (and there are some concerns about its reliability since nobody can yet be certain that having had the virus protects you from catching it again in the future).

A vaccine is undergoing trials but, even if it proves successful, it will take up to 18 months to be widely available. Under current laws, an employer cannot force an employee to undergo a medical procedure (e.g. coronavirus test or vaccination) without their consent, and it is unlikely that refusal of consent would be a fair reason for dismissal.

As such, the approach taken by employers to encourage such measures will need to be more carrot, and less stick.

How long should we rely on staff forbearance in supporting the business?

In addition to utilising furlough leave and taking advantage of other business support measures , many businesses will have introduced measures that rely on the forbearance of staff (e.g. temporary pay cuts, postponed salary reviews).

As the lockdown is lifted, and staff are asked to return to a more normal pattern of work, they may be increasingly likely to lose patience and challenge such measures. Therefore, they should be kept under constant review and not extended further than necessary.

The terms under which such measure were agreed with staff should be honoured, and consultation should take place if they need to be extended or altered.

To sum up, employers may find that reintegrating their workforce and adjusting to the ‘new normal’ poses significant challenges. However, with some forethought and preparation, the impact of these challenges can be minimised and dealt with appropriately.