Back to work factsheet for employers

Our employment law expert answers some of your HR and health & safety questions about getting staff back to work safely...

BrightHR Team

Last updated 23rd December 2020 at 2pm. 

The government has agreed that from midnight on 24 December until 12 January, Level 5 restrictions will apply nationally. There will be a number of specific adjustments to Level 5 and, in addition, certain transitional arrangements will apply during the Christmas period.

To compensate business owners that are forced to close due to the restrictions, a double rate of COVID Restrictions Support Scheme (CRSS) payments will be paid for two weeks to businesses that are forced to close as a direct result of government restrictions on 26 December. Commercial rates relief will also apply for affected areas for Q1 2021.

The main adjustments to Level 5 impacting employers are as follows:

• non-essential retail may remain open. The retail sector will be requested to defer January sales events
• gyms, leisure centres and swimming pools may remain open for individual training only
• hotels may only open for essential non-social and non-tourist purposes except for guests who already have a booking and are due to check in up to and including 26 December
• people must remain within their county (as opposed to within 5km of your home) apart from travel for work, education or other essential purposes

The specific transitional arrangements for the Christmas period are as follows:

Hospitality

From 3pm on 24 December:

• restaurants and pubs operating as restaurants will close
• hotels may provide food and bar services to guests only after that point

Travel

Intercounty travel will continue to be permitted up to and including 26 December. Those away from their place of residence after that period will be permitted to return to their place of residence

The government has also agreed that the current restrictions on travel from Britain to Ireland should remain in place until at least 31 December, but kept under constant review in the light of unfolding information and circumstances.Advice on the use of face coverings could also now impact your workplace. The government is now asking people to wear face masks in all crowded workplaces.

The Work Safely Protocol which includes mandatory measures that employers must take has also been recently updated to reflect the evolving public health guidelines and advice.

Q: Will this new plan allow more people to return to work? We may need some of our employees, but not all, to return. How do we decide who to bring back first?

A: The reopening of retail, personal services and most of the hospitality sector will see a lot of employees return to work. That said, the government advice remains work from home where possible. Where you do need employees to return to the workplace, it is likely that not everyone will be able to return either due to workload or the implementation of health and safety measures. First and foremost, you should consider the needs of the business and which departments would need to return first.

If you need to select between individuals in the same or a similar job role, the decision should be based on objective criteria. Any decisions should be documented so you can justify your decision-making process if someone raises the concern that they have been discriminated against.

Q: Have social distancing measures changed under the recent government plan? What measures do we have to take?

A: No, all social distancing measures contained in the Work Safely Protocol should still be complied with under the most recent measures. You need to work with your Lead Worker Representative on developing safe workplace procedures and confirming a COVID-19 response plan. Although government guidance is subject to change, it is likely that social distancing (keeping 2 metres apart) will still be in place for some time. Therefore, you will need to space out desks and consider walkways around the building and where the entrances and exits are. It is also likely that you may need to stagger working hours and alternate days of work to comply with the workplace protocol.

Depending on the nature of your business, you may need to consider a range of measures including the installation of plexiglass shields or other barriers, protocols for the use of lifts, closing down smaller common areas or marking appropriate distances, and providing hand sanitiser.

Q: Some of my employees contracted coronavirus during their time away from work and I am aware that one employee was living with someone who was symptomatic. How do I check if my employees are fit to return to work?

A: The Work Safely Protocol requires you to issue a form to employees asking them to confirm their health status at least 3 days before they return to work.

Employees who contracted or who have been exposed to the virus may be able to gain confirmation of their fitness to work through forms or emails from local clinics. You can ask your employee if they’ve been symptomatic or if they’re a close contact of someone who is symptomatic, to establish whether they have followed government guidance with regards to self-isolation. If the isolation period has passed, they should be able to return to work.

In determining whether an employee may return to work, questions should be limited to establishing symptoms related to COVID-19. Any questions that are unrelated, such as asking about underlying medical conditions or symptoms not associated with COVID-19, should be avoided.

Employers may ask, for the purposes of determining whether an employee should be permitted to remain at home, that employees certify that they have an underlying health condition that heightens their risk of harm if they were to contract COVID-19.

Q: With social distancing expected to remain in place, will we be required to reduce our employees’ hours of work?

A: It is expected that employers will continue to stagger work hours and shifts to assist with social distancing and ease congestion on public transport. Similarly, alternating days of work for different groups of teams may also be considered.

The full extent of what measures are required will be subject to ongoing guidance but if it is possible to achieve social distancing through staggered hours and other arrangements like home working, you may not necessarily need to reduce staff hours.

Remember, employment laws require agreement from staff when you make amendments to terms and conditions, even if only on a temporary basis. You should speak with employees first and explain the proposed changes and the reason for these changes. You will likely need to take your employees’ individual circumstances into consideration when agreeing to appropriate changes to working hours.

Q: We were in the process of recruiting prior to the lockdown and need to pick that back up. Is it safe to arrange interviews?

A: It may be possible to hold in-person interviews as long as you are able to ensure social distancing measures for attendees. You would need to set clear guidance ahead of the interview so the candidate is aware of the measures in place.

Although it may be possible, you should still consider whether virtual interviews and on-boarding are more appropriate to reduce the number of in-person interactions.

Q: One of my employees has advised me that they will not return to work over the next few weeks, even though restrictions have lifted to allow our workplace to reopen. How do we manage this?

A: The right way to manage this depends on the situation. But the first step should be to discuss the matter with your employee to understand their reasons for not returning. Many employees may be anxious about the prospect of returning to work at first and safety will be a priority for them.

You should inform all employees that you have made an assessment of the risks and implemented appropriate measures in line with government guidance. This should help to reassure any anxious employees that you aren’t putting them at risk by asking them to return to work.

Q: Some of my employees have school children who have been sent home and can’t arrange childcare. What are their entitlements and how should I handle this?

A: With schools having to close at short notice, this is a common query for employers. Where employees continue to experience difficulties with childcare due to school self-isolation rules, employees should carry out some (or perhaps all) of their duties from home if possible. While they’re working from home, you should pay them as normal.

Where employees are unable to work from home, they should be encouraged to make alternative childcare arrangements, but this will not be possible for all employees. You should consider temporary flexible working arrangements to adjust or reduce working hours, and change working times to assist employees in managing work and childcare responsibilities in line with requests, and implement this if possible. Parental leave (unpaid), parent’s leave (available to parents of infants under one), as well as paid annual leave, may also provide a solution at least in the short-term.

Consistency is key to avoid setting unmanageable precedents and in the circumstances, where the situation is so uncertain, employees should be informed that any measures implemented are temporary and cannot be maintained indefinitely.

Q: I need to reorganise my business which may also result in redundancies. What do I need to consider?

A: If you believe the reorganisation will only be temporary, the Employment Wage Subsidy Scheme and lay-off or short-time working may be considered subject to the terms of your employment contracts.

Employees who have been laid off or put on short time are not permitted to claim redundancy before 31 March 2021. Employees on short-time working will be entitled to the Short Time Work Support in line with their hours worked.

You may also consider temporarily redeploying employees to other parts of the business if employees are agreeable and can be trained. If these options are not feasible you may need to consider whether the role is redundant and commence the redundancy consultation process. Redeployment should also be considered throughout this process.

A final thought…

It’s important to think carefully about any situation linked with the coronavirus outbreak before you make any decisions that impact your staff. If you have any doubts, seek employment law advice.