The latest Government announcement on Friday 17th July, declared a different message from the previous; “work from home where possible”, by stating that more people should start to return to their usual workplace from 1st August.
Returning to work
In order for staff to return to the workplace, employers must ensure that they have complied with the COVID-19 secure guidelines (Guidelines). The Guidelines set out a number of objectives and steps for businesses (those permitted to be open) to follow, in order to ensure that the workplace is as safe as possible for employees.
One of the key objectives for a business is to reduce workplace risk to the lowest possible level, by taking preventative measures.
Preventative measures
The Guidelines operate within current health and safety and employment laws, and provide that employers should undertake a COVID-19 risk assessment in consultation with their workforce/trade unions to establish what processes to implement.
Once a risk assessment has been carried out and preventative steps have been implemented, a business should display a standard notice in the workplace to demonstrate they have followed the Guidelines (COVID-19 Notice) and place details on its website.
The Guidelines set out that employers should provide clear communication to all staff about COVID-19 related safety procedures. It may also be helpful to provide training to managers and those employees who will be responsible for the implementation or monitoring of the new health and safety procedures. This will help ensure that the processes put in place will be understood and followed by all staff.
What if there is an outbreak at work?
While preparing to return to a new normal way of working, businesses should be prepared for outbreaks of the virus within their workplaces.
There are a number of businesses who never participated in the Coronavirus Job Retention Scheme (CJRS) and did not place staff on Furlough Leave, including those whose doors have remained open from the outset of the pandemic.
It’s important all employers plan for the worst-case scenario of having to close their business if any member of its workforce tests positive for coronavirus. However, those businesses who never utilised the CJRS may face a slightly different predicament now the scheme has closed to new claims.
Do you need to close your business?
It’s important all employers plan ahead for what happens if they are forced to close their business due to a coronavirus outbreak in the workplace. This might happen in the event an employee or a number of employees test positive for the illness. All employers have a legal duty to take all necessary precautions to ensure the physical and mental wellbeing of their staff and this is crucial in the current climate. The current ACAS Guidance states that businesses do not have to close in the event an employee tests positive for the condition but advises following the Government’s guidance on cleaning. Employers however will need to take their own view on if they should close their business and will need to give consideration to numerous factors, including:
- If they need to close in order to facilitate cleaning of the premises in accordance with the Government’s guidance.
- If the individual who tested positive came into close contact with a number of other employees who are now choosing to self-isolate as a result. This may leave a business with too few staff to operate profitably.
- If the number of staff who tested positive is high within the workforce.
- If staff feel safe and comfortable in the workplace. An employer may need to consider putting extra measures in place to reassure staff. This may include ordering additional PPE or putting even more stringent measures in place.
When considering the above and reaching a conclusion on if the business should close, the employer will need to give thought to their legal obligation to protect the physical and mental wellbeing of their staff.
What happens if you do close your business?
If an employer makes the decision to close their business, they will need to consider if they are required to pay their staff for any period where they are not working. The option to submit claims for new employees for the Furlough Scheme has passed and so, unless they have previously been furloughed as noted above, this can no longer be viewed as a possibility.
The employer should check their existing employment contracts for any short-time working or lay-off provisions which could provide assistance. An employer could also consider agreeing to a period of unpaid leave with employees or making employees use annual leave (for which there are legal obligations around notice that must be given).
If an employee tests positive for coronavirus then they will be entitled to SSP from the first day of their absence. This is a very recent change in the law. There is a full list of the situations which will give rise to an employee receiving SSP on the ACAS website.
If you have any questions or would like to discuss short-time working or lay-off provisions then please contact Employment Partner, Amanda Badley, on 0116 402 9019 or email amanda.badley@bhwsolicitors.com.