How can businesses manage employees returning to work?

Phil Cookson, a partner at leading law firm Roythornes, discusses solutions to some of the common challenges that businesses are now facing as workers return from furlough or head into the office for the first time since early 2020.  

As with all areas of life, coronavirus has raised many new and novel issues for employers and employees – many of which employment lawyers get to witness and help solve.

The dominant area of questioning is now unsurprisingly around redundancies – both from employers looking to make their workforce as lean as possible, or from employees asking questions and appealing decisions. This is now back into familiar employment law territory following the surge of furlough enquiries during a time which, for all involved, meant adapting and learning as things developed daily.

But – what does furlough look like now?

Questions from employers specifically in relation to the Coronavirus Job Retention Scheme (“furlough scheme”) have certainly slowed now that a general understanding of the furlough scheme has bedded in. When queries are raised, they are often about how furlough impacts notice periods and accrued holiday, particularly in relation to a planned redundancy.

The furlough scheme timeline is a drop to 70% government support from 1 September 2020, with a further reduction to 60% in October with employers needing to continue to top this amount up to 80%.

Phil Cookson, partner at leading law firm Roythornes

What is the first thing employers should do to prepare for employees returning to an office environment?

I’ve had plenty of calls from employers worried about how they can reassure staff who haven’t been in the office for weeks or months to now come in and be assured that it is safe to do so. Now that the government has given the green light for people to get back to work, this is going to be an even more pressing area of advice. Look to those businesses that have continued to operate safely throughout lockdown and take lessons from them. There is government guidance on how to make operations Covid secure, and employers simply need to demonstrate that this has been followed.

It should be a priority for all businesses to have their own secure and well-thought out process in place. Appoint someone as a chief Covid officer; someone who is charged with putting a plan together of getting people back to work. This plan needs to include a robust risk assessment of the workplace, consultation with the workforce, and assurance that the safety measure being implemented align with government guidance.

This plan needs to be approved by the senior team and they then need to learn it and live by it. Fundamentally, the senior team must ‘play by the rules’ and set an example. We know from the construction sector that if a site manager goes out without his hard hat, for example, it sends the wrong message and bad habits can quickly form –the same principle can be applied here.

The plan needs to be reviewed regularly as things can change quickly. New lessons need to be added, and the things that work well need to be recognised and built upon. I would recommend setting up a dedicated email address for staff to send their feedback and make suggestions as and when needed.

Once this is in place, I would urge businesses to work hard at trying to understand their workforce. This process has demonstrated to me that there are always more people than you realise with underlying health conditions or that are acting as carers, for example. Their approach to Covid security will of course be different to those at a lower risk and so there is a balance that needs to be struck between both parties.

What happens if an employee catches Covid and there is a related fatality?

First and foremost, employment liability insurance exists and will apply for any claims as it normally would. However, I would expect insurers to ask the employee to prove that the virus was contracted in the workplace and go from there. To be frank, I suspect that the employee is going to have a difficult time proving that they did not pick up the virus elsewhere.

How can employers discipline at a distance?

Again, this is a case of following the normal process of investigation, documenting, and reporting. Employers need to look carefully at why productivity has dropped without making assumptions.

What do employers need to do if the schools close again in the future?

I strongly believe that the government will continue to do whatever it can to keep the schools open as it allows parents to go back to work. Employees can request the use of unpaid emergency dependants leave if short term notice is needed to arrange additional child-care. With higher levels of annual leave also left untaken, this might be a good option for the employee if it also works for the employer. It’s important to state that the onus is on the parents to solve this problem and not the business.

How can an employer bring together furloughed and non-furloughed staff?

Employers are now facing a unique cultural challenge of having to bring people back from furlough to work alongside those who have stayed active throughout lockdown.

It seems that in some cases, workplaces are seeing two distinct camps – with those on furlough leave seen as having had a paid holiday, while those who remained having worked harder than ever to maintain a functioning business. The result is the potential for friction on both sides.

For managers, it is really a case of trying to explain the realities to both camps. For many on furlough leave, it has been an anxiety-ridden time with mental health suffering as a result of being away from work and colleagues. For those in work, it has been both physically and mentally exhausting.

As well as encouraging an open dialogue, it’s worthwhile going back to what worked during the height of lockdown – whether that’s increased internal communications or the virtual social activities that seemed to become almost the norm for many businesses.