COVID-19 – An assessment of safe working arrangements

As a result of the Coronavirus pandemic, businesses must assess how their work environment and arrangements can be made safe for employees and visitors.

In response to the Government guidance, we have put together guidelines on the steps you may need to take as a business to provide safe working arrangements.

COVID-19 risk assessment

All employers with more than five members of staff must carry out and share with staff their written risk assessments. Employees should also be given clear, written guidelines on safe working.

Those with 50 or more employees are expected to publish this document on their website and display a signed poster, which can be found here.

Any risk assessment must consider and provide information on:

  • Scenarios that could lead to transmission of the virus
  • Steps a business may take to mitigate risk

Remember – As per the Government’s latest guidance, where possible, employees should continue to work from home if they can. This is particularly important for vulnerable groups.

As an employer, you have a legal duty to protect your employees and others that visit your business, from harm.

Precautions for those returning to work

Where possible you should try and ensure as many employees as possible can continue to work from home, as per the Government’s guidance.

Where employees cannot work from home, you should increase the frequency of handwashing and surface cleaning to prevent the spread of this virus.

Staff must also maintain the two-metre social distancing guidelines and you should consider reconfiguring workspaces to help with this where required.

Where social distancing cannot be observed due to the work environment other measures may need to be taken.

Detailed guidance on the various precautions recommended for different workplaces can be found by clicking here.

We recommend that you read these guidelines and consider how you can incorporate these measures into your work arrangements.

Vulnerable employees and visitors

The Government has advised that all vulnerable individuals, such as those with underlying health conditions or in at-risk groups, should remain at home and not return to work.

Where this is not possible, you should ensure that additional caution is taken to observe social distancing rules.

You should continue to follow and monitor Government guidance to ensure vulnerable groups remain protected.

It is important that you do not discriminate against those required to self-isolate or shield, taking into consideration the protected characteristics defined under the Equality Act 2010 (e.g. due to their age or disability).

Allowances should also be given for those who live with or care for someone that is extremely vulnerable.

If you believe an employee may fit into one of these groups, we recommend that you speak with them to ensure the necessary steps can be taken to provide a safe work environment.

Cleaning procedures

All workspaces must be cleaned regularly, and, where possible, windows and doors should be opened regularly to encourage ventilation.

Care must also be taken in respect of the delivery of merchandise or goods that enter the workplace so that they can be cleaned to prevent the spread of the virus.

Where required, additional signage should be installed to remind employees to regularly wash their hands and use hand sanitiser/wash stations provided.

The working environment

As well as encouraging more frequent cleaning, you may be required to take additional measures around the workplace to ensure staff and visitor safety.

This may include:

  • Reducing movement by discouraging non-essential trips within buildings and sites, for example, restricting access to some areas, encouraging the use of telephones, where permitted, and cleaning them between use.
  • Reducing job and location rotation.
  • Introducing more one-way flow through buildings.
  • Regulating the use of high traffic areas including corridors, lifts, turnstiles and walkways to maintain social distancing.

Within specific work areas, you may also be required to:

  • Review layouts and processes to allow people to work further apart from each other.
  • Use floor tape or paint to mark areas to help workers keep to a two-metre distance.
  • Only where it is not possible to move workstations further apart, arranging people to work side by side or facing away from each other rather than face-to-face.
  • Only where it is not possible to move workstations further apart, using screens to separate people from each other.
  • Managing occupancy levels to enable social distancing.
  • Avoid the use of hot desks and spaces and, where not possible, for example, call centres or training facilities, cleaning and sanitising workstations between different occupants including shared equipment.

You should also consider common areas of the building, such as waiting areas and break rooms, and take actions to manage risk, including:

  • Staggering break times to reduce pressure on break rooms or canteens.
  • Using safe outside areas for breaks.
  • Creating additional space by using other parts of the workplace or building that have been freed up by remote working.
  • Installing screens to protect staff in receptions or similar areas.
  • Encouraging workers to bring their own food.
  • Reconfiguring seating and tables to maintain spacing and reduce face-to-face interactions.
  • Regulating the use of locker rooms, changing areas and other facility areas to reduce concurrent usage.
  • Encouraging storage of personal items and clothing in personal storage spaces, for example, lockers.

You should take these measures, and include them within your risk assessment, as and when required to maintain proper social distancing and to reduce the risk of infections.

Travel and commuting

Employees returning to work should be asked to avoid public transport where possible to reduce the spread of the virus.

Employees should also be reminded to maintain a distance of two metres if required to use public transport.

To assist with the travel to and from work, further measures may be taken including:

  • Staggering arrival and departure times at work to reduce crowding into and out of the workplace, taking account of the impact on those with protected characteristics.
  • Limiting passengers in corporate vehicles.
  • Reducing congestion, for example, by having more entry points to the workplace.
  • Using markings and introducing one-way flow at entry and exit points.
  • Providing handwashing facilities or hand sanitiser at entry and exit points and not using touch-based security devices such as keypads.
  • Defining process alternatives for entry/exit points where appropriate, for example, deactivating turnstiles requiring pass checks in favour of showing a pass to security personnel at a distance.

Employers should discuss any changes to travel arrangements if they believe it may affect their regular working hours.

Personal protective equipment (PPE) and face coverings

As part of the risk assessment process, you should review the use of PPE and face coverings in the workplace and if they are required request that staff use the correct equipment.

If employees indicate that they would like to use a face covering at work, you should remind them to thoroughly wash their hands before putting a mask on or taking a mask off.

Face masks should also be replaced after each use. They do not replace the need for proper social distancing at all times.

Working arrangements 

Should you need to introduce shift patterns or change existing working arrangements as employees return to the workplace, you should give those workers affected plenty of notice beforehand.

If staff have any queries regarding a change to working arrangements, they should be encouraged to speak with you at the earliest opportunity to see how you can assist them.

Communication

Any changes to work arrangements or the work environment should be properly communicated with your employees and you are encouraged to consult with them, trade unions and health and safety representatives when preparing a risk assessment.

Once your risk assessment has been prepared you should share it with your employees so they are aware of the steps they need to take and the measures that you are introducing.

 

Coronavirus Job Retention Scheme (CJRS) extended until October

The Chancellor, Rishi Sunak, has confirmed that the Coronavirus Job Retention Scheme (CJRS) will be extended until the end of October, with no changes until the end of July when employers currently using the scheme will be able to bring back furloughed employees part time.

From August, the Government has said that furloughed workers will continue to receive 80 per cent of their usual salaries capped at £2,500. However, employers will have to make a currently unspecified contribution to this cost. Details of these arrangements are due to be published by the end of May.

The CJRS currently allows employers to retain employees on the PAYE payroll who are not carrying out work for them by placing them on furlough and to claim a grant of 80 per cent of a furloughed employee’s usual pay, plus employer National Insurance Contributions (NICS) and minimum employer auto-enrolment pension contributions.

The Chancellor said that since the scheme was launched in March, more than one million businesses have furloughed more than 7.5 million workers.

Employer and employee obligations for homeworking

Hundreds of thousands of UK workers have made the move to homeworking follow the Government’s ‘stay at home’ guidance and have been fulfilling their work duties from home for weeks. 

However, the sudden change to homeworking means that some employers and their employees may not be fully aware of their legal obligations under these arrangements. 

To help you gain a greater appreciation of each party’s requirements and rights, we have looked at and provided answers to seem key homeworking questions. 

As an employer what are my health and safety obligations when it comes to home working?

You cannot monitor employees 24 hours a day while they are working at home or even carry out regular health and safety risk assessments, but you are still expected to meet certain obligations when it comes to health and safety.

As such, where possible, you should:

  • check that each employee feels the work they’re being asked to do can be done safely at home and that they have the right equipment
  • keep in regular contact with employees to make sure they do not feel isolated or under supported
  • make ‘reasonable adjustments’ for an employee who has a disability.

Where a change is needed, it is the employer’s responsibility to ensure it is carried out properly. However, it is not the sole responsibility of employers to ensure that health and safety rules are observed and employees must tell their manager about any health and safety risks and/or any homeworking arrangements that need to change as a result of health and safety concerns.

Health and safety typically focuses on physical health, but what are my expectations regarding employees’ mental health?

The social distancing measures needed to reduce the rate of COVID-19 infection has led to a significant rise in mental health issues among the UK population. Employers have a general obligation to ensure their employees come to no harm while working. 

As such they should be encouraging employees to take regular breaks, for example, to avoid sitting at a computer for too long.

They may also wish to, but are not required to, provide activities that alleviate stress and anxiety, this may be achieved their internal communications. Examples include hosting quizzes, holding lockdown bake-offs and video conferencing.

My employee requires certain equipment/technology to fulfil their role, am I required to provide this?

Employers are responsible for all equipment and technology provided to employees that allows them to work from home. As such, they should:

  • discuss equipment and technology requirements with employees and agree what is needed
  • support the employee to set up any new equipment or technology.

Employers should also regularly assess how systems and temporary arrangements are working and make improvements if necessary, to ensure employees are supported. 

The performance of an employee appears to have been affected by home working, what should I do?

Employers and managers have a responsibility to ensure that those working from home know what is expected of them.

As such they should agree:

  • hours of work
  • how they will communicate
  • how their work-life balance will be managed
  • rules around storing information and data protection
  • how performance is managed and measured.

Employers should recognise that some employees may find homeworking difficult or struggle to organise themselves while working at home. Employers should discuss this with employees at the earliest opportunity and put practical steps in place that are designed to improve their performance. 

How does homeworking affect pay and the terms and conditions of employment?

If an employee is working from home, they must still receive the same rate of pay, as long as they are still working their regular contracted hours.

During this period, their usual terms and conditions of employment still apply, apart from their place of work. It is also important that employers ensure staff follow the law on working hours and take breaks. 

My employee is having to juggle childcare and working from home, what are the rules regarding this?

With schools and nurseries closed and other family members unable to look after children, many working families may be finding it difficult to balance childcare and working from home. 

If this is the case, then employers and employees may be able to agree a more flexible homeworking arrangement. This could include:

  • working different hours
  • agreeing to a reduced working week
  • reducing work targets
  • being flexible about deadlines, where possible.

It is important that employees discuss any change in circumstance regarding care, be it for a child or vulnerable adult, with their employer so that they can agree on working arrangements and expectations. 

Coronavirus (COVID-19) more FAQs for Employers

Hayley Trovato, Senior Associate in our Employment team, has answered some more questions employers may have around coronavirus (COVID-19):

The Coronavirus Job Retention Scheme – What is it and How do I apply?

This was announced by the Chancellor on 20 March 2020. Under this scheme any employer can obtain a grant to cover 80% of the salary of employees who would otherwise have been laid off, up to a total of £2,500 a month for each retained employee. This will cover the cost of wages backdated to 1 March 2020 and initially is open for at least 3 months unless extended further by the chancellor.

The scheme is open to those on PAYE. This means it will cover many workers as well as employees.

What do employers need to do?

To obtain a grant the employer has to designate the affected employee as ‘furloughed’ and notify the employee of the changes. They then have to submit  information to HMRC about the furloughed employees and their earnings through an online portal. There is no further information about the portal available as yet.

What does “Furloughed” mean ?

This is not a word that many people will have come across until a few days ago, although it is a commonly used expression in the United States where it relates to the temporary leave on an employee due to the special needs of a company or employer due to economic conditions. However, there is no legal definition in Employment Law nor is there any definition or guidance provided on its meaning by the government

The concept of furlough is similar to a lay off, in the sense that the employee must remain an employee and remain on the payroll and is not provided with any work. However, unlike a lay off where the employee is provided with no work or pay, furloughed employees will receive some of their pay.  Employees who are furloughed must not complete any work for their employer during this time.

Do employers have to provide a top up of the 80%?

This is  up to the individual employer to decide. It is also important to note that the scheme specifically refers to it being “subject to existing employment law.” This means an employer cannot just inform or compel an employee they are being furloughed, this has to be agreed with them. However, if the alternative is redundancies then it is likely an agreement will be reached without much resistance.

For the full details please refer to:

HM Government: Business support: Coronavirus Job Retention Scheme

What if I am self employed?

The House of Commons Public Bill Committee has proposed an amendment to the Coronavirus Bill 2019-2021 which would require the government to introduce “statutory self-employment pay” for the “self-employed” and “freelancers” equivalent to furlough leave for employees and workers. The amendment proposes that individuals who are self-employed or freelancers would receive a “top-up” to ensure that their net monthly earnings do not fall below the lower of:

  • 80% of their monthly net earnings, averaged over the last three years.
  • £2,917 per month.

There has been considerable pressure placed on the government to provide a scheme of relief for the self employed and it has been promised that help for self-employed workers will come very soon. This was announced yesterday – for full details see www.gov.uk/coronavirus.

What assistance is  government offering for the self employed ? 

The government announced a new Self-employed Income Support Scheme on 26 March 2020. This will provide cash grants to the self employed of 80% of the average monthly trading profit over the last three years, up to £2,500 a month. The scheme will run for an initial three months and will be extended if required.

To be eligible, the following requirements must be met:

  • trading profit must have been less than £50,000 in the 2018/19 tax year, or the average trading profit over the last three tax years , this must be less than £50,000 a year.
  • More than have of the income must have come from self-employment during the the period above.
  • You must already be in self employment.

HMRC will contact those individuals they consider eligible and they will calculate their grant using the average of trading profits form their tax returns from the last 3 years. It is hoped that these payments will be made from the beginning of June.  We are expecting to receive further details of the scheme from HMRC shortly.

What about employees who have already booked annual leave and are now layed off, are they permitted to take this leave?

On the basis that the employment contract continues during the lay-off then the employees rights in terms of their annual leave will be unaffected.

What if employees are not able take all of their annual leave due to the impact of COVID-19 ?

The Working Time ( Coronavirus ) ( Amendment ) Regulations 2020 SI 2020/365 have been brought into force with immediate effect. They means that any untaken annual leave not take due to the COVID-19 can be carried over into the next two leave years. This new rule applies only to the four weeks of annual leave provided for by Regulation 13 Working Time Regulations, but not the additional 1.6 weeks which is subject to different rules on carry-over.

Can an employer withdraw an offer of employment for new starters in the light of the COVID-19 pandemic? 

Consideration must be given as to whether a contract of employment has been entered into with the new starter. If there is a binding contract of employment then instead of withdrawing the job offer, giving rise to a potential breach of contract claim, the employer could give the employee notice of termination and pay them for their notice period. In doing this it is important that the employer ensures the reasons for the decision are well documented to avoid any allegations of discrimination.

The existence of a binding contract also means that any change to the start date would be a change in contractual terms. This means that an employer could only change the start date with the agreement of the new starter or if the contract gives them a right to do so. Even if such a right exists in the contract then an employer should ensure that this is exercised reasonably and also ensure they give consideration to a possible discrimination issues.

What issues should be considered if we need to ask all our employees to work from home in the light of the government’s announcement on 23 March 2020?

Employers should refer to The Acas, Working from home guidance which sets out the following issues to consider, including:

  • Supporting employees to adjust to home working.
  • Employers and employees’ health and safety responsibilities, including looking after mental and physical health
  • Equipment and technology.
  • Ongoing assessment of home working systems and arrangements.
  • Setting clear expectations.
  • Keeping in touch.
  • Pay and terms and conditions of employment.
  • Working from home and childcare.
  • Expenses.
  • Insurance, mortgage or rent agreements.

For further information, please do not hesitate to contact me by email or on 020 8349 5487.

Coronavirus (COVID-19) FAQs for Employers

Hayley Trovato, Senior Associate in our Employment team, has answered a number of questions employers may have around coronavirus (COVID-19):

Can an employer refuse to allow an employee to work from home if they will also looking after children whose schools/nursery have closed?

Normal circumstances would dictate that it is not appropriate for an employee to work from home while they are providing childcare. However, with the escalation of the COVID-19 virus, a more pragmatic approach should be adopted by employers. It seems likely that in the next few weeks this is likely to become a reality. In these circumstances imposing a ban on employees working from home while looking after their children is likely to exclude a large proportion of the workforce from carrying out their job. In these unprecedented times, a more relaxed and flexible approach needs to be adopted.

Do employees have the right to be told if a colleague develops the virus?

Information about an employee’s health is defined as a ‘special category of personal data’ by the Data Protection Act 2018. This means it can only be processed by an employer in restricted circumstances. You must notify your employees of the risk of infection as soon as possible however it is important to ensure that the identity of the individual is not disclosed. Best practice is to say an employee who has been in the workplace has been infected and so all of the usual precautionary measures should be taken. On 12 March 2020, the Information Commissioners Office (ICO ) confirmed it would take a pragmatic approach to enforcement in the light of the pandemic. It has issued ICO: Data Protection and Coronavirus: what you need to know, where it confirms that you can disclose to colleagues if an employee has contracted COVD-19, on the basis that they do not provide more information than is necessary.

In an effort to keep their businesses afloat can employers reduce their employees hours of work? 

We are entering a period of economic uncertainty and most businesses regardless of their size will suffer. Immediate consideration will be given to where costs can be cut and businesses might have to consider laying off staff as it comes down to a question of survival and being to stay afloat.

Laying off employees means that the employer provides the employees with no work ( and no pay) for a period while keeping them as employees. Short time working means giving your employees less work and so less pay for a period while keeping them as employees. These are temporary solutions to the problem where there is no or less work. However, if there is no contractual right and employers are laid off or put on short-time working then the this may entitle the employee to resign and claim constructive dismissal.

However, in the current climate, the above options are likely to be a more attractive alternative to employees than redundancy meaning it is likely employees will consent to a period of unpaid leave, particularly if this option is presented as an alternative to the risk of redundancy.

At the time of writing, we are awaiting news of what financial assistance the government is going to be offering UK businesses in addition to those measures announced by the Chancellor in the recent Spring 2020 budget.

For further information, please contact us and/or refer to the following sources of advice:

Off-payroll working rules – IR35

The off-payroll working rules can apply if a worker (sometimes known as a contractor) provides their services through an intermediary. An intermediary will usually be the worker’s own Personal Service Company (PSC), but could also be any of the following:

  • a partnership
  • a managed service company
  • an individual

The rules make sure that workers, who would have been an employee if they were providing their services directly to the client, pay broadly the same tax and National Insurance contributions as employees.

These rules are sometimes known as ‘IR35’.

The off-payroll working rules currently apply to intermediaries providing workers to public sector clients. From April 2020, the rules for engaging individuals through personal service companies are changing. The responsibility for determining whether the off-payroll working rules apply will move to the organisation receiving the individual’s services.

You may be affected by these rules if you are:

  • a worker who provides their services through their intermediary
  • a client who receives services from a worker through their intermediary
  • an agency providing workers’ services through their intermediary

If the rules apply, tax and National Insurance contributions must be deducted from fees and paid to HMRC.

Who the rules apply to.

In addition to all public sector clients, from 6 April 2020 the rules will also apply to all medium and large-sized private sector clients (including charities) that meet 2 or more of the following conditions:

  • has an annual turnover of more than £10.2 million
  • has a balance sheet total of more than £5.1 million
  • has more than 50 employees.