New restrictions impacting all employers in the UK have been announced; some regions remain in 'local lockdown' bringing additional restraints. Similar but not identical restrictions are also being imposed in Scotland, Wales and Northern Ireland which businesses must consider and apply.
With indications that the new measures could "remain in place for perhaps six months", they will come as a blow to employers who have been working hard to make their working environment Covid-19 secure and restore some normality. Employers still accessing financial support under the Coronavirus Job Retention Scheme (CJRS) will also have to assess the impact of the newly-announced replacement scheme - the Ob Support Scheme - that will kick in when the CJRS ends on 31 October.
Immediate issues to consider arising from the prime minister's announcement include:
Home working arrangements
With the announcement that office workers "should work from home if you can", employers should revisit their home-working arrangements to ensure they work for the business and the employee. Particular issues arising are:
- Homeworker risk assessments, which must meet legal duties around managing worker health. Considerations include necessary equipment provision and mental health and wellbeing management.
- Employees relocating overseas, creating potential tax and legal implications.
- Handling requests to return to the office; there are employees who for a number of reasons may be struggling to work at home, requests should be considered sensitively and on an individual basis.
- Temporary school closures causing a return to home-schooling for some; where this has an impact on performance bear in mind any measures to address this could be discriminatory, as well as undermining employee relations.
- Revising benefits packages to support and motivate home-workers; how can effective working from home be facilitated?
Your usual Osborne Clarke contact will be happy to discuss these issues and our "To Agility and Beyond" service provides structured support and advice.
Protecting vulnerable employees
Individuals who are vulnerable may be particularly concerned by the latest announcements. Despite the prime minister stating that he wished to "put his arms around" those affected, no special protection has been re-introduced permitting shielding (there may be exceptions in local lockdown areas). Just as employers had been considering the government guidance and definitions on vulnerable employees and the impact of a return to work on diversity and fairness, and with many employers who have been relying on the CJRS to furlough individuals looking to what comes next, employers will now need to consider carefully how to protect those who cannot work from home.
It is being reported that younger women are now "bearing the brunt" of the UK's second wave; these individuals represent the highest proportion of those working in the hospitality, retail and the caring sector where exposure to Covid-19 may be greater. Employers should therefore be careful not to dismiss concerns from categories of employees not previously identified as vulnerable.
New penalties for failing to keep Covid-19 secure
The prime minister has re-emphasised the importance of keeping workplaces Covid-19 Secure. New requirements have also been imposed for employees to wear face coverings in retail and hospitality settings (subject to specific exemptions). With a potential fine of up to £10,000 being introduced for businesses who breach the Covid-19 Secure rules, coupled with a threat of closure, employers must clearly mandate their requirements on how individuals behave in the workplace, ensure that they are familiar with their own obligations and consider how requirements will be enforced. Failure to do so is likely to lead to reputational damage and other brand impact in addition to the new legal consequences.
Protecting staff from hostility and aggression
With more stringent restrictions on everyday life now in place, those working in retail, hospitality, transport and other public-facing roles, will often be at the coal face of enforcing unwelcome Covid-19 requirements. Employers must take steps to ensure employees have appropriate support where they face hostility and aggression in their roles. Training should be put in place to ensure they are clear on their duties and how to manage the day-to-day challenges they may now face. Duties may include enforcing: social distancing, face-mask requirements, the 'rule of six', Track and Trace requirements, and the 10pm curfew.
As announced on 24 September 2020, when the CJRS ends on 31 October 2020 it will be replaced with a new scheme that provides more limited support for employers. Where job losses are inevitable, employers must ensure that they comply with the existing statutory rules governing collective redundancies (which is subject to statutory minimum consultation periods), as well the duty to consult individually.
It remains important for employers to review any funding already received under the CJRS. HMRC is now sending out "nudge" letters to reportedly 3,000 employers a week as part of a campaign to investigate and clawback an estimated £3.5 billion which has been over-claimed under the scheme. Employers receiving one of these letters should seek advice on their position before responding. HMRC has provided a window for voluntary repayment (and during which no penalties will be imposed), which ends on 20 October 2020.
For many employers, adapting back to working from home may be a relatively simple step, with systems and arrangements well established. Employers should, however, ensure employment contracts and policies are future-proofed; employment terms which attract new talented staff, pre-empt economic challenges and protect against problematic leavers will be key.
A greater challenge now facing employers is the impact of another sustained period of home working for those who were just beginning to enjoy increased social contact with their work colleagues. HR teams will have to rapidly adapt and train their line managers to effectively manage their teams remotely. It will be critical to be sensitive to the individual difficulties facing employees; mental wellbeing, increased daily home costs and difficult home environments are just some of the issues which it has become clear do make working from home more challenging. For many, defining the boundaries between work and home life and managing work demands remotely may become more difficult. Careful management will be required to stem issues which arise and avert a trend towards "virtual presenteeism" .