Exiting Lockdown in NI: Time for employers to take action

The UK government and devolved administrations have in the past week provided a broad view of how lockdown will be relaxed and what our "new normal" may look like in the months ahead.

The fact that the Northern Ireland Executive has produced a schedule for emerging from lockdown has been welcomed and while we may have hoped for more definitive timescales, the onus is clearly upon employers to be planning now for how they will come out of lockdown. The approach taken will be different for employers depending on scale, the sector in which they operate and how their underlying business has been affected by restrictions to date. For example some businesses, such as those in the hospitality sector, have effectively been shut down with employees placed on furlough, others will have maintained a slimmed down operation or have been able to continue with staff working from home. Ultimately, however, all businesses will face significant challenges over the coming months as we emerge from lockdown.

We have outlined some key considerations employers should consider at this stage to allow them to move safely out of lockdown.

Coronavirus Job Retention Scheme – 3 key updates

The Chancellor has announced that the Scheme will be extended in its current form until 31 July 2020. Thereafter it will continue in a modified form until the end of October 2020. We expect to hear more detail about how the Scheme will be modified by the end of May 2020. At present it appears that the level of government support will be reduced with employers now obliged to contribute to ensure wages continue to be paid at no less than 80% (up to £2,500). It is also anticipated that after July employers will have, for the first time, the ability to allow employees to return to work part-time while still having access to the Scheme. 

By extending the Scheme the government aims to keep as many employees in work as possible and it also allows businesses to continue to receive support while employees are transitioned back to work as and when it becomes safe to do so. The dilution of the Scheme value to Employers is also designed to encourage employers to remove employees from the scheme, either in whole or in part, and thus get closer to the normalized pre-lockdown economy.

Un-furloughing and business re-structuring

Employers considering bringing furlough to an end should check the basis on which notice and consent to furlough was originally documented and ensure that communications with affected staff are consistent. Depending on operational need, the timing of a period of furlough ending should also be approached carefully to ensure for each employee the minimum three week period has been reached to enable a grant to be claimed. 

The extension outlined helpfully provides more time to transition employees back to work and avoid immediate cash flow pressures. It will in some cases avoid the need to embark on collective redundancy consultations. That said, employers who are facing a redundancy situation should take steps to prepare for this now, particularly if any modifications to the Scheme after July will reduce support below a level that can sustain the existing workforce and stave off redundancies. In these situations employers should consider starting consultation, particularly if the level of redundancies anticipated will result in lengthy collective consultation obligations. 

Health & Safety – Communicate it, Implement it, Enforce it

For all employers, the safety of their work force must be a priority and from a legal perspective any steps that employers take to bring employees back to work will be subject to overriding considerations respect of health and safety.

Notwithstanding any ease of lock down restrictions, current guidance suggests that for the foreseeable future, workers who can should continue to be required to work from home. Where this is not possible employers will be expected to continue to implement social distancing practices at workplaces and take other steps to reduce risk.

Before re-opening workplaces, employers should carry out risk assessments to ensure safe working practices are adhered to. The potential nature and extent of measures required will present a huge logistical and practical challenge for many employers to implement.

The Prime Minister has announced a new set of "COVID-19 Secure" guidelines will be issued for employers outlining how health and safety measures should be implemented and it is expected that similar guidelines will be introduced in Northern Ireland. Employers should comply with advice from the Northern Ireland Health & Safety Executive as and when this is updated but can and should start now to anticipate the range of steps that will need to be taken. Clear communication with employees about these steps will be paramount and should be built in to any plan.

Employers should note that health and safety obligations continue to apply to those working from home and also apply to mental health. Where workers are still at home, risk assessments should be completed and steps should be taken to communicate with them to ensure their welfare.

Although lockdown restrictions may ease, and even with steps that are taken to maintain a safe working environment, those shielding or vulnerable should continue to stay at home.

Can an employee, who is otherwise healthy, refuse to return to the workplace?

Many employers are looking down the line and trying to anticipate problems that they may be faced with once the Executive's Plan allows them to consider employees returning to the workplace. One of the most frequently asked questions seems to be "what if an otherwise healthy employee tells me that they do not feel safe coming back to work? Can they be disciplined or even have their employment terminated as a last resort?".

There are two provisions in the Employment Rights Order (Northern Ireland) 1996 that may offer some clarity.

• Article 68 of the Employment Rights Order (Northern Ireland) 1996 ("ERO") states that an employee should not be subjected to any detriment if they refuse to return to work in "circumstances of danger" which the employee believed to be "serious and imminent".  This will therefore cover disciplinary proceedings and/ or dismissals.
• Article 132 of ERO states that if an employee is dismissed and the reason for the dismissal is that "in circumstances of danger which the employee reasonably believed to be serious and imminent" they refused to return to work this will be automatically unfair.

These protections gives rise to a number of questions. First, who deems what is "serious and imminent" danger. Clearly if an employer has not implemented COVID-secure practices, that could be (and indeed is likely to be) deemed unsafe. But if they have, and the employee still says they "just do not feel safe", what then? No doubt an employee would refer the Judge to the Health Protection (Coronavirus) Regulations 2020 which state that the virus "constitutes a serious and imminent threat to public health". It is likely therefore that the "serious and imminent" element of this test may be fairly readily established.

Ultimately it would be for a Judge in the Industrial Tribunal to determine whether the test is made out, but employers should note that it is the employee's belief about whether the danger is "serious and imminent" that matters, not the employer's opinion. As such, it is likely that employers that observe the health and safety laws and communicate all the measures that they have taken in that regard, will minimise the chances of an employee refusing to attend at work and claiming protection from dismissal under Article 132. Being able to demonstrate what the employees knew about the dangers facing them will no doubt be key in any case.

However, the phrase "circumstances of danger" is also problematic. It has a wide meaning that is not limited to the workplace itself. Whilst obviously there are no decided cases in this area yet, it may well be broad enough to cover circumstances in which the employee feels they cannot travel to work safely.

Further, it is important to note that the "danger" that the employee relies upon does not need to be limited to themselves. They could, for example, argue, that they have a shielded family member at home and the risk of them contracting COVID-19 at work could have a bearing on their family member, even if the employee themselves are not showing any symptoms.

There is no qualifying period of service needed for employees to bring claims under these Articles. Damages stemming from a successful claim may also be substantial. Ultimately any decision to instigate any form of disciplinary action or to seek to try to insist upon the reluctant employee's attendance at work should not be taken without specific legal advice having been obtained on the particular circumstances first.

 In the meantime, in the interests of good employee relations, a successful return to the workplace (where appropriate) and avoiding claims the following are strongly recommended:

• Robust risk assessments and a thorough review of working practices to ensure they are COVID-19 safe
• Evidence of good transparent communication with employees concerning the save practices that have been implemented
• Open communication channels with employees to minimise fears

Action plan for exiting lockdown – The 'Return to Work Induction Checklist'

We recommend employers develop an action plan for coming out of lockdown. This should be kept under review as guidance develops but should be approached as if the employees are new to the workplace and should be inducted in regard to the working practices of the office/retail/factory environment. This is critical in showing employees that you are Health and Safety aware, that the organisation takes its responsibilities seriously, and thus reduces the ability for employees to argue that the workplace is unsafe hence justifying a refusal to return.

All employers are encouraged with creating a bespoke plan, but key aspects of any plan should include:

Health & Safety measures

• Health and safety risk assessments should be completed prior to bringing employees back to work. These should be clearly documented and updated as and when guidance changes.
• What changes will be required to working practices to ensure social distancing can be maintained i.e. changing workstations or shift patterns. Maintain home working where possible.
• Will PPE be required?
• Consider temperature checking.
• What training will staff requiring in relation to measures you implement in the workplace to maintain health and safety?
• Employee Liability Insurance policies should be checked to ensure adequate protection is provided.
• The impact of the pandemic on mental health and well-being should be considered. What support can you offer to employees from a mental health perspective?

Update contracts & policies

• Consider whether changes to working practices change employee terms and conditions
• Are current policies fit for purpose? Do you need to introduce or update policies dealing with health & safety, home working, flexible working, social distancing, holiday entitlement, time off for dependents, sickness absence and unpaid leave?
• Update data protection policies and employee privacy notices to address the approach to sensitive personal data should you introduce COVID-19 testing and/or temperature checks and other communications to employees.
• What if employees refuse to return to work or fail to comply with health and safety measures that have been introduced? Do disciplinary policies need updated?

Workforce planning

• Are redundancies likely?
• What roles will be affected and what process will you need to follow?
• Will collective consultation be required?

Communication

• How will a return to work and changes to working practices be communicated to employees?
• Consider an external communication strategy to address any reputational issues that arise around decisions to return to work or where redundancies are considered.

For more information please contact Gareth Walls, Partner, Shirley Blair, Associate, Jonathan Simpson, Associate or any member of the Belfast Employment team.

Date published: 19 May 2020