How to manage a safe return to the workplace and some frequently asked questions

Following the Prime Minister’s unveiling of a roadmap out of national restrictions, businesses will be beginning to take steps to welcome their teams back into the workplace.

It’s a certainty that life with COVID-19 will continue to evolve around us, but regardless of what the next few months hold, it’s important that you take the time to plan and work with your employees to establish the new ways of working.

Key steps to take:

1. Consult with your employees as early as possible about returning to the workplace

You should consult with employees before making any final decision or putting plans in writing. Points to discuss include:

• Sharing the vision about the future of the workplace, what this will look like and any plans for hybrid working (see point 3 for more detail on hybrid working patterns)
• when staff might return to the workplace
• how staff will travel to and from work
• how health and safety is being reviewed and managed – you should share the latest risk assessment
• any planned adjustments to the workplace, for example, additional handwashing facilities, staggering start and finish times to avoid overcrowding or floor markings to help people stay apart
• if there might be a phased return of the workforce, for example, some staff returning before others

2. Make the workplace Covid-19 secure

All employers have a statutory duty to provide a safe place of work and general legal duties of care towards anyone who may be accessing or using their place of business. To discharge these duties, you must take the following steps:

• Carry out suitable risk assessments to identify the risks; and
• Implement measures to minimise those risks. You must take all reasonably practicable steps to minimise the risks. This is not the same as having to eliminate the risks, although.

To clarify what you need to do, you should refer to the relevant sector-specific guide contained in the government’s guidance on working safely during coronavirus www.gov.uk/guidance/working-safely-during-coronavirus-covid-19. It must be read in conjunction with other health and safety laws and regulations and any advice produced specifically for your sector by industry bodies.

3. Ensure that your employment documentation is up to date

Evidence suggests that as restrictions ease, a majority of employers are considering a ‘hybrid’ pattern of working, involving both home and workplace-based work rather than full return to the workplace. In such cases, you will need to formalise homeworking arrangements, update your employment contracts, and put in place homeworking/ hybrid working policies.

You may also need to review your staff handbooks or individual policies and procedures to ensure that they are applicable to and support any new ways of working that have been introduced as a result of COVID-19. Policies that may have been affected include sickness, absence and pay, health and safety, disciplinary offences and harassment and bullying.

Frequently asked questions

What happens if someone does not want to return to the workplace?

It is ultimately an employer’s choice as to whether you require your employees to attend work; however, you should follow government guidance.

Where you can demonstrate that you have taken all reasonable steps to minimise the risks, it may be reasonable to insist an employee returns. If they refuse to, it could result in a disciplinary issue. As each case is fact sensitive, it is important that you take legal advice before taking further action.

Should we be carrying out workplace testing?

There’s no law that says that businesses must test employees for COVID-19, and in most situations, it is not necessary, but some employers might want to bring in testing as part of their workplace policy. If you do decide to introduce workplace testing, it does not mean that you can reduce other COVID-19 secure workplace measures already in place.

Can we insist on workplace testing?

Where an employee is exhibiting symptoms of COVID-19, it may be reasonable to require that employee be tested, where the purpose of the testing is to protect the health and safety of the workforce.

The situation is more complicated when employees are not exhibiting symptoms. If an employee does not agree to workplace testing, they cannot be forced to do so. In certain circumstances, it may be open to employers to take disciplinary action against an employee who refuses a test, but this would depend on factors such as the nature of the employee’s work; any evidence on the necessity of testing in the particular environment and the extent to which the risk of COVID-19 cannot be managed in the workplace by other measures. You should also ensure that you consider the reasons why the employee refused and whether or not these can be viewed as “reasonable”.

What data protection issues arise from workplace testing?

Test results are classed as ‘special category data under the General Data Protection Regulation (GDPR), and as such, there are more stringent conditions for processing it. The fact the employee has consented to being tested or to this information being processed will not of itself be sufficient.

Given the sensitive nature of the data collected, employers must process the data in accordance with the GDPR and inform employees in an open and transparent manner about the reasons for processing their personal data, what decisions will be made as a result of you having that information, which it will be shared with and how long it will be kept for. Employers should consider putting a COVID-19 testing policy in place to help meet this objective.

The Information Commissioner’s Office (ICO) has published guidance for businesses on managing data protection obligations ico.org.uk/global/data-protection-and-coronavirus-information-hub/coronavirus-recovery-data-protection-advice-for-organisations/testing. The guidance makes it clear that employers will need to show that their approach to testing is reasonable, fair and proportionate, taking into account the specific circumstances of their business. It also recommends that employers undertake a “data protection impact assessment” to help them with determining if their approach meets the testing threshold.

Can we ask an employee if they have had a vaccine?

Before you decide to ask your employees about vaccination status, you should be clear about your reasons for doing this. Whether your employee has been vaccinated is their private health information and is, therefore, ‘special category data’, and your use of this data must be fair, necessary and relevant for a specific purpose.

If you have no specified use for this information and you are recording it on a ‘just in case basis, you are unlikely to be able to justify collecting it if you are challenged in the Employment Tribunal. The sector you work in, the kind of work your employees do, and your workforce’s health and safety risks should help you decide if you have compelling reasons to record whether your employees have had the vaccine. It is likely to be easier to justify collecting such information in certain workplaces such as a health or care setting where COVID-19 presents a specific risk.

If you carry out a “data protection impact assessment”, as we explained above, you will start to formalise the reasons why you are collecting this information.

If you decide that you can justify recording whether employees have had the vaccine, you must be transparent. You must make sure that your employees understand why you need to collect this information and what you’re using it for. You should accurately record the information that you collect and ensure that this is stored securely. You should regularly review whether you still have grounds for keeping this information as the vaccination roll-out progresses and more people receive the vaccine.

If we make a reasonable request for employees to be vaccinated, what can we do if they refuse?

There will be employees who are unable or unwilling to have the vaccine for a wide range of reasons. This may be because of a medical condition that prevents them from being vaccinated. It may be for religious reasons or for reasons of philosophical belief, or they may have concerns about the safety or effectiveness of the vaccination.

If employees do not have a valid reason for not having the vaccine, as an employer, you could argue that a request to be vaccinated amounts to a reasonable management instruction, and failure to follow an employer’s reasonable instructions can lead to disciplinary processes and dismissal.

Whether a requirement to be vaccinated is a reasonable management instruction will depend on the specific circumstances at the time. For example, employers in the healthcare sector may potentially be able to issue a reasonable instruction to employees to be vaccinated because refusal could put vulnerable patients at risk. However, employers in another sector, where work can be done effectively from home, maybe in a weaker position to argue that an instruction to be vaccinated is reasonable.

This article was written by Claire Berry, a solicitor at Price Bailey. If you have any other questions about staff returning to work, you can get in touch with Claire on the form below.