In our webinar we provided legal insights on everything from health and safety measures such as risk assessments, temperature checks and social distancing at work to revising contracts of employment and key policies and procedures to adapt to the new working environment. We hope you found hearing from our employment, regulatory and data protection experts enlightening.
Your questions answered
There were a range of questions submitted by the audience during our webinar. We've picked out a few and given our answers which we hope covers most people's queries.
Employment: Your questions answered:
How do employers return employees with childcare issues to the workplace? Are there potential discrimination issues?
Whilst many employers are seeking to return employees to the workplace, the issue of childcare cannot be ignored. Although certain school years may return on 1 June, the position with regard to nurseries and secondary school children is less clear. In addition, many employees rely on grandparents to help with childcare and this assistance will not be an option for the foreseeable future.
Employers will need to take a reasonable, pragmatic approach when dealing with employees with this difficulty. Where an employee has been successfully working from home and working flexibly to share the childcare with their partner, it may well be reasonable for the employer to continue with this arrangement until childcare is available again.
Employees who have been placed on furlough under the Coronavirus Job Retention Scheme (CJRS) may be able to continue on furlough until childcare facilities re-open or the CJRS ends.
Alternatively, employees may have made use and may continue to make use of parental leave (18 weeks leave in total per qualifying child for each employee), dependants' leave ("reasonable" amount of time off to take "necessary" action to deal with particular situations affecting dependants) or annual leave in order to care for children.
Where the employer needs the employee to return to the workplace, they will have to tread carefully before insisting on the return or implementing a disciplinary procedure for failure to return.
Employers should be mindful of:
- Indirect discrimination – Women may be placed at a particular disadvantage if required to attend the workplace when they have childcare responsibilities. The requirement from the employer would have to be justified as a proportionate means of achieving a legitimate aim.
- Constructive dismissal – If employers insist on the employee returning when it is impossible for the employee to do so due to childcare, there could be a breach of the implied term of trust and confidence. However, employees are expected to cooperate and seek to make appropriate arrangements to enable a return to work if that is what is required for the job that they do, and their children are able to go to school, albeit that some flexibility in working times is likely to be appropriate.
The best approach is for employers and employees to discuss the options available and to try and reach a compromise. For example, employers may be able to reallocate tasks which could be carried out from home or alter working hours so childcare could be shared between the parents.
Employees who are reluctant to return to the workplace because of health and safety concerns have additional protection against dismissal and/or suffering a detriment.
When measures involving a return to work involve a change to terms and conditions, how should employers implement the change?
Employers should firstly check the employment contract to consider whether the change is already permitted within the parameters of the existing terms and conditions. Where the change is not permitted employers should communicate with the workforce and seek agreement to the change through consultation if necessary, involving trade unions where appropriate. Employers should be open and transparent, explaining the reason for the change and how it is being implemented. For example, if the change is being implement to protect the health and safety of the workforce this should be communicated. Alternatively, the change may be necessary to help make the business viable. Engagement and collaboration are essential.
Employers should resist unilaterally imposing the change on employees due to the risk of the employee arguing there has been a breach of trust and confidence.
Where there is no agreement, employers may have to consider dismissal and re-engagement on the new terms. The employer would terminate the existing contract of employment on due notice whilst at the same time making an offer of a new contract of employment upon the new terms and conditions. The new contract would start immediately after the end of the old contract. There would, of course, be a dismissal. Because of this, the employee could bring a claim for unfair dismissal, even if he/she accepts the new contract and carries on working. However, the dismissal will be "fair" provided that the employer can demonstrate to an employment tribunal that: it has a persuasive business case requiring the implementation of the change and it has consulted with the employees and/or their representatives with the aim of reaching agreement. Where 20 or more dismissals are proposed, collective consultation will be triggered. Employers will need to follow the strict requirements of the collective consultation process. Where fewer than 20 are affected, consultation is still necessary as part of a fair process.
If employees have successfully worked at home during lockdown, do they have an argument that they should be allowed to stay working at home?
Where homeworking has been successful during lockdown, many employers and employees may wish to continue the arrangement. Employers should consider whether a formal update to the employee's terms and conditions is necessary and should take the opportunity to review any home working policies.
Where one party wishes for the arrangement to continue but the other does not, it will initially be a question of what is set out in the employment contract as to whether the arrangement can continue. Where a change to terms and conditions is required please see the answer to this question above.
As always, communication is key and employers and employees should seek to reach an agreement in a collaborative way. Whilst there is still a concern over health and safety, it will be unsurprising that many employees may wish to carry on working at home. Employers should listen to employee concerns and take a reasonable and pragmatic approach. A reduced number of employees coming into the workplace also makes it easier to make social distancing arrangements more effective for those that do have to come in.
Regulatory and Health & Safety: Your questions answered
Could you just clarify when you said it's a legal requirement that employees must work from home if they can
It is not a legal requirement, it is the expectation of the BEIS guidance that this is the first choice. Legally, provided that the business is permitted to trade, employees can return to their place of work.
What would be a suitable response time to implement any changes after the BSEI guides have been released for businesses that have remained open during COVID-19 such as Food RDC's?
There is no mandatory obligation to implement any of the requirements in the guidance, so it follows that there is no timeframe. In practice however, you will want to consider the documents and determine what you can and cannot implement and whether the measures you already have in place are equally effective. In some places the language is directive, though they remain guidance. Realistically you will have a couple of weeks at least where "we are considering them and how to implement any appropriate measures" will be an acceptable answer for regulators. After that time frame you still won't have to have implemented them, but you should be able to show that you have given them due consideration and talk to why anything you've not adopted was not appropriate.
"Where applicable", "where appropriate", "this is guidance" are all terms being used. How do we operate in the grey world of definition to be classed as compliant and/or in line with regulation or indeed guidance?
The guidance is necessarily general as not all businesses within the same sector operate identically. As a result, the guidance is objective in focus and is really aimed to support your risk assessment. It is about making sure that we've all put the necessary measures in place to try and minimise the risk, recognising that it cannot be removed entirely.
Where is the requirement to publicise risk assessments on your website made?
It is section 1.2 of each of the sectoral guidance published by the English Government. It states:
'You should share the results of your risk assessment with your workforce. If possible, you should consider publishing the results on your website (and we would expect all businesses with over 50 workers to do so).'
Data Protection: Your questions answered:
How can we demonstrate that employee consent has been freely given to the collection of their personal data for COVID-19 data processing activities?
For consent to be valid, (amongst other requirements) consent must be freely given. Under the GDPR, if an individual has no real choice, feels compelled to consent or will endure negative consequences if they do not consent, then consent will not be valid. To demonstrate consent was freely given, you would therefore need to show that there was choice, no compulsion and no negative consequences from not providing consent.
Demonstrating the above in the employment context is likely to be difficult due to the likely imbalance of power between the employer and employee.
Other lawful grounds are available under Article 6 GDPR and Article 9 GDPR. We provide more detail in the Data Protection Returning Your Workforce Checklist.
How do we balance the data protection risks of temperature checks vs duty of care to keep people safe?
It is important to undertake a health and safety risk assessment to identify the risks created by COVID-19 to your workforce and help you determine the controls you will put in place to address those risks.
Flowing from the health and safety risk assessment, you can then assess the planned controls against data protection requirements.
In the context of temperature checks, this process would lead you to first consider whether temperature checks are an appropriate response for your organisation to the health and safety risks posed by COVID-19. If they are, you would then look to assess the way you plan to collect temperature data against the requirements of the GDPR. For example, how do you notify people about the temperature checks, how can checks be performed in the least intrusive way, are you collecting the minimal personal data necessary, etc.,.
Your processing of personal data should be subject to a Data Protection Impact Assessment in accordance with the GDPR. You may also need to have in place appropriate policy documentation (e.g. as required under Schedule 1, Condition 1 of the Data Protection Act 2018).