As lockdown restrictions begin to be lifted, employers in the UK should begin planning for staff to be able to return to their places of work.
Many UK businesses have had to take steps to either limit or entirely reduce the number of employees in their premises during the lockdown period through a variety of means, including furloughing or asking staff to work from home.
Returning from furlough or home working
Where employees have been furloughed, employers may wish to consider whether it is appropriate to operate a phased return. This may be appropriate because it is necessary to reduce the numbers of people at the workplace to facilitate social distancing, or because the workload is likely to ramp up over time rather than immediately returning to pre-pandemic levels.
Any selection exercise that is required to identify which employees will return from furlough must be fair.
Similarly, where employers are selecting certain employees to return to the workplace rather than requiring everyone to do so at the same time, they must ensure that employees are selected fairly, taking account of vulnerable workers and those with caring responsibilities.
Ensuring safe workplaces on return
Businesses requiring their employees to work from their usual workplaces will need to ensure that they have conducted appropriate health and safety risk assessments to identify and manage risks appropriately.
Given that social distancing is likely to continue to apply, some employers may need to consider the use of shift working and other typical working patterns to ensure that the number of people on their premises allows for social distancing to occur. Employers will also have to consider when staff will be arriving at and departing from work.
When deciding whether this is an appropriate strategy, employers should bear in mind that their employees may have contractually agreed working hours and that changes to these may require employee agreement.
Health monitoring and data protection
Employers may be considering health monitoring - such as temperature checking and health questionnaires - as part of their health and safety risk assessment.
Your employer does not need consent as it’s in the wider public interest to help prevent the spread of the virus, plus as an employer not only has a duty to look after their staff, they are legally entitled to process health information for workplace health and safety.
As your employer will be processing information that relates to an identified or identifiable individual, they will need to comply with the GDPR and the Data Protection Act 2018. So will need to handle the data lawfully, fairly and transparently. Your temperature information will be classed as Health Data which is a ‘Special category’, so it must be even more carefully protected.
Where possible your employer should have clear and accessible privacy information in place before any health data processing begins, however it goes without saying that the impact of COVID-19 has been unprecedented and in these exceptional times that may not be possible.
Employers will need to consider whether any new health monitoring practices are "reasonably necessary" to comply with a legal obligation, such as health and safety duties.
It is worth revisiting the use of Data Protection Impact Assessments in respect of the various data processing activities that the business has carried out during this period and will continue to do afterwards.
Did you have a home working policy before COVID-19? Was this written into contacts for certain staff before the pandemic, but then we had the situation where there was a temporary requirement to work from home and therefore perhaps there needs to be a specific home working policy put in place.
The home working policy amongst other things will address:
- The required hours of work;
- The expectation that staff should be maintaining an appropriate work vs life balance in the lockdown;
- The responsibilities for managing office equipment and its return at the end of the home working requirements;
- Procedures for the purchase by staff of office essentials and the expenses claim process;
- Guidance on how to deal with virtual team meetings and virtual business meetings;
- The requirement for confidentiality in postings and online discussions as well as good data and records management;
- The integration of the home working policy with other compliance policies including bring your own device, information security, acceptable use and social media policies.
You should as much as possible insist that staff use protected devices but to the extent that they have to use their personal devices and tablets, steps should be taken to ensure that data protection rules are adhered to.
From an information security and cyber security point of view, the increased of social media and internet gives rise to risks surrounding social engineering, phishing, ransomware attacks and alike, and again guidance needs to be given to staff around awareness of these issues.
Finally, the business needs to consider how it can improve physical and technical security at home for its staff as well as the management of confidential information including in particular manual records and print. Whilst in the office environment there will no doubt be a control around the disposal of paper and confidential documents, it may be harder to manage this within the home environment, but the liability still remains.
Another issue that needs to be considered is the risk of the loss of control of data and document conversions where information may be spread across a number of devices and is remote from the usual central server.
Thinking about Risk:
Before any staff return to the workplace the employer should carry out a COVID-19 risk assessment, to reduce risk to the lowest reasonably practicable level by taking preventative measures, in order of priority.
You must make sure that your risk assessment for your business addresses the risks of COVID-19. It is about identifying sensible measures to control the risks in your workplace. Your risk assessment will help you decide whether you have done everything you need to.
This is a 5 step process to safer working together:
1. You have carried out a COVID-19 Risk Assessment and have shared the results with the people who work in your organisation
2. You have cleaning, handwashing and hygiene procedures in line with government/NHS guidance
3. You have taken all reasonable steps to help people work from home
4. You have taken all reasonable steps to maintain a 2m distance in the workplace
5. Where people cannot be 2m apart, you have done everything practical to manage the transmission risk
Everyone needs to assess and manage the risks of COVID-19. As an employer, you also have a legal responsibility to protect workers and others from risk to their health and safety. This means you need to think about the risks they face and do everything reasonably practicable to minimise them, recognising you cannot completely eliminate the risk of COVID-19.
A risk assessment is not about creating huge amounts of paperwork, but rather about identifying sensible measures to control the risks in your workplace. Your risk assessment will help you decide whether you have done everything you need to.
At its most effective, full involvement of your workers creates a culture where relationships between employers and workers are based on collaboration, trust and joint problem solving.
Returning to work
Establish a return to work program and establish who will communicate with staff. The more senior the person, the better.
Arrange a welcome back to work program for staff and managers, to inform them of the 'new' workplace protocols.
And keep reinforcing your health and hygiene messages as ultimately, they will keep people healthy and safe.
On returning to the workplace employers need to begin the business recovery stage. They need to monitor the effectiveness of the return to work program to ensure that it remains effective and is supporting those who have returned to work. It can also be used to restore confidence in the business.
Review and update your Business Continuity Plan. Most organisations will have had their plan activated by the outbreak so we would encourage you to learn from this. Review what you've learnt from the period of time people have been working from home. Are there positives to be had? The lockdown has reconnected families and given people time look at what's important to them, so it might be time to look at how your workforce can work differently.