Returning to the workplace – what are the potential risks for your business and how can you protect yourself?

As businesses look to open the workplace again or to bring employees back from furlough, there will be many adjustments as we work towards a new ‘normal’. In this article, we outline some of the potential risks and claims arising out of this new normal and how best to protect your business.

Health & Safety related claims

Health and Safety related claims are a key risk in the current climate, as there is both a common law duty of care and an implied contractual term to provide all employees with a safe working environment, which is easier said than done at the moment!

Whilst the Government has released guidance to assist businesses in providing a safe working environment, both during and in the aftermath of the pandemic, this is only a starting point for businesses and following this will not make you immune to health and safety claims. You must carefully consider the guidance against the context of your workplace and employees, and adapt and/or bolster it as required.

A key way to assist in providing a safe work environment is to carry out a rigorous risk assessment. This may involve taking a fresh look at certain business operations and considering whether they should be altered or should cease for a period. You also need to consider the individual needs of employees, for example those who are considered ‘at risk’.

It is important to involve employees in, and communicate with them, regarding risk assessments, for example by asking for their thoughts, questions or concerns and getting their “buy in”. Ensure that your approach is flexible and not a ‘one size fits all’ and carefully document your risk assessments so that you can demonstrate the steps that you have taken to provide a safe work environment if you find yourself before an employment tribunal in due course.

Remember that carrying out a risk assessment is not a one-off task and should be reviewed and updated regularly.

Discrimination and harassment related claims

When asking employees to return to the physical workplace/bringing them off furlough, you need to carefully consider employees’ individual needs and circumstances to ensure that you are acting in a fair, reasonable and non-discriminatory way. You should also bear in mind that if employees are working effectively from home, it may be hard to justify bringing them back at this time, especially given the ongoing Government guidance that those who can work from home should do so.

As well as considering the workforce as a whole, there are three ‘risk groups’ that warrant careful consideration, namely:

• pregnant employees
• disabled and shielding employees; and
• employees with childcare or caring commitments.

When considering or discussing any of these at-risk groups, ensure that you and your managers are careful what they say and/or commit to writing, especially over email.

Pregnant employees

If you want to keep a pregnant employee on furlough and both parties are in agreement (ensure written confirmation of the same), there should be limited risk of a discrimination claim.

When assessing which employees to bring back from furlough, make sure to include pregnant employees in your assessment, as it is unacceptable to assume that they will want to remain on furlough due to being “at risk”.

If a pregnant employee is keen to return to work, consider options such as facilitating them working from home, where possible, or altering their role or duties (with their agreement) to move them from a public-facing role etc.

Disabled and shielding employees

If you are satisfied that you have created a safe working environment as far as possible and you begin to ask employees to return to the workplace, it should be reasonable to ask a disabled employee to return if you need them to do so. However, ensure you have a dialogue with any such employees and listen to and address their concerns, as there might be other adjustments you could make to assist them and alleviate their concerns or alternatives you have not considered.

Potential issues may also arise if you have not taken reasonable steps to ensure the safety of the workplace for the disabled employee but ask them to return.

As with pregnant employees, if a disabled employee wishes to return to work to restore full pay, this should be considered. Do not assume that they will prefer to remain on furlough or at home. Again, have a dialogue with them and consider all options, such as home working, giving them alternative duties or asking them to remain on furlough but topping up their pay to 100%. As always, ensure to document the options that you have discussed and where an agreement has been reached.

Although “shielding” is currently due to end on 30 June 2020, this does not mean that employers should ask shielding employees to return to the workplace from 1 July 2020, as they will still remain at the highest risk of infection. Again, consider all the options, including working from home or remaining on furlough (possibly on 100% pay).

Employees with childcare and caring commitments

If an employee is experiencing childcare or caring issues, they may wish to remain on furlough or to work from home. However, it is very dangerous to assume this, and do remember that it is not just female employees who will be experiencing these issues.

Therefore, include these employees in your assessment and conversations regarding ending furlough or returning to the workplace, as excluding them will likely be discriminatory.

Harassment claims

If an employer is seen to be putting pressure on their workforce to return to the workplace, an employee may be able to bring a claim under the Protection from Harassment Act. This may be in the form of a County Court claim for injury to feelings or, in rare cases, an injunction against the employer.

To bring this type of claim, an employee does not require any protected characteristic(s), nor do they need to have been dismissed or to have resigned, so bear this in mind when asking your staff to return.

In summary, ensure that you carefully consider who should return to the workplace and/or asking people to do so - or not. A blanket approach will not be appropriate and will not be looked upon favourably by a tribunal. These last few months have been a scary and unpleasant time for many people and Judges are likely to have sympathy for potential claimants. Be flexible and reasonable in your approach, listen to what your employees have to say and document everything.

If you have any questions, please do not hesitate to contact Sarah Lee or another member of BPE’s Employment Team.

These notes have been prepared for the purpose of an article only. They should not be regarded as a substitute for taking legal advice.