Returning To The Office: Top 10 Things Employers Need to Know - Part 2
Following on from our previous blog post 'Returning To The Office: Top 10 Things Employers Need to Know - Part 1' the below are the last 5 things and employer needs to know in preparation or the return of employees to the office.
6. Cleaning & Hygiene
Consider how you will keep the office clean which will include surface cleaning and maintaining good hygiene practices. For example, this may include:
- Implementing a 'clear desk' policy
- Asking staff to wipe down their desk after use
- Asking staff to use hand sanitiser regularly
- Encouraging good hand and respiratory hygiene
7. Ventilation
Your risk assessment might identify that it is appropriate to open more windows and doors than usual, and it may also be appropriate to consider improvements to mechanical ventilation / air conditioning. The HSE provides further guidance on this.
If you are opening windows and doors ensure you take into consideration fire safety, and the potential impact on the confidentiality of sensitive conversations.
8. Guidance for those who develop COVID-19 symptoms or are identified as a close contact
You will need to ensure that staff are clear on the process should they develop COVID-19 symptoms in office or otherwise, and also if they are identified as a close contact.
9. Commuting
As part of your risk assessment, you should consider the risks posed by COVID-19 throughout all aspects of your business activity – this will include your employees' commute.
10. Other issues
Ensure you bear in mind other health and safety issues, for example fire safety and manual handling, and how you can manage these within a COVID-19 context. Depending on the measures you take, you will also need to consider whether additional protections are needed for those more vulnerable to COVID-19 due to medical conditions or pregnancy.
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The Buzz About Carer's Leave
This month the Government confirmed that it will introduce a 'day one' right to statutory carer’s leave. The new entitlement to statutory carer’s leave will:
1. be available to the employee irrespective of how long they have worked for their employer (a day one right);
2. rely on the carer’s relationship with the person being cared for – a spouse, civil partner, child, parent, a person who lives in the same household as the employee or a person who reasonably relies on the employee for care; and
3. depend on the person being cared for having a long-term care need. This would be defined as a long-term illness or injury (physical or mental), a disability as defined under the Equality Act 2010, or issues related to old age. There would be limited exemptions from the requirement for long-term care, for example in the case of terminal illness.
What can the leave be used for?
Personal support, helping with official or financial matters, or accompanying someone to medical and other appointments.
How can the leave be taken?
Either as a single block of one week, or more flexibly in individual days.
How are employee's to notify their employer?
The notice requirement will be in line with that of annual leave, the employee must give notice that is twice the length of time being requested as leave, plus one day in order to enable employers to manage and plan for absences. Employers will be able to postpone, but not deny, the leave request for carer’s leave on grounds that the employer considers that the operation of their business would be unduly disrupted. Employers will be required to give a counter-notice if postponing the request to take Carer’s Leave.
Is there protections for those undertaking carer's leave?
Those taking carer's leave will be protected from suffering a detriment for having done so, and dismissals for reasons connected with exercising the right to carer's leave will be automatically unfair.
When will carer's leave be introduced?
According to gov.uk this right will be introduced into legislation when Parliamentary time allows. In the meantime employers should start to prepare a written policy to introduce this new requirement once introduced.
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Returning To The Office: Top 10 Things Employers Need to Know - Part 1
With the continued relaxation of COVID-19 restrictions across the UK, employers are finally on course for returning their employees to the office in some shape or form. Although restrictions are easing employers must still ensure they are adhering to the relevant government guidance in terms of re-opening and the attendance of employees in the workplace. Returning employees to the workplace will be based on the completion of COVID-19 risk assessments. Once employers have identified risks they must implement control measures to remove or control those risks. These risks and control measures will determine an employers approach on a range of issues which we've covered examples of below.
1. Social Distancing
While it is not currently a legal requirement for employers to ensure social distancing on their premises, the government encourages this. Social distancing can be considered an appropriate control measure in light of your COVID-19 risk assessment as employers may want to think about:
- Implementing a one-way system in the office
- Limiting numbers in the office
- Staggering staff start and finish times
- Reconfiguring desks, using protective screens and a desk booking system
- Limiting the number of people in certain areas e.g. canteens, toilets, meeting rooms and lifts
2. Vaccination
Currently vaccinations are only mandatory for registered care home works. Making vaccination compulsory in your business could lead to potential difficulties, including potential discrimination issues. Businesses however may wish to have their employees disclose their vaccination status prior to returning to the office in order to consider additional health and safety measures to protect your workforce. However, it is important to note that this raises data protection issues, and whether it is justified will depend on individual circumstances.
3. Testing
In line with government guidance, employers should encourage their staff to self-test regularly for COVID-19 to ensure their safety.
4. Office Equipment
As part of your control measures, will any restrictions be applied or alternative measures put in place for office equipment such as photocopiers, fridges, microwaves, water coolers or communal cutlery / crockery?
5. Face coverings
Employers must ensure they are aware of where the legal requirement to wear face coverings still exists - In Scotland it isstill a legal requirement to wear face coverings in the workplace in certain situations whereas in England and Wales, it is not currently a legal requirement to wear face coverings in the workplace. It is important to note that although face coverings are no longer required, the government's guidance encourages mask wearing therefore you may consider it an appropriate control measure in light of your COVID-19 risk assessment.
Check back next week for 'Returning To The Office: Top 10 Things Employers Need to Know - Part 2' which will list the final 5 things employers must know in relation to returning to the office.
Statutory Sick Pay (SSP) & Isolation
The government has decided to bring the Coronavirus Statutory Sick Pay Rebate Scheme (SSPRS) to an end on the 30th of September 2021. This means that, from the 1st of October 2021, small employers who are currently eligible under the Scheme will no longer be able to claim back statutory sick pay (SSP) for employees unable to work due to COVID-19. Alternatively the employer will have to cover the full cost of SSP which is currently £96.35 a week.
Prior to the COVID-19 pandemic, employers covered the full cost of up to 28 weeks’ SSP for their employees who met the relevant SSP criteria. By law, employers must pay SSP to employees and workers when they meet eligibility conditions.
The scheme only allows you to recover up to two weeks' SSP per employee and is payable from the first qualifying day the employee is off work as the usual rules about 'waiting days' don't apply.
Employees could be entitled to receive SSP if they are self-isolating for any of the following reasons:
- They have tested positive for covid-19
- They have been notified by the NHS or public health authorities that they are a close contact but of course since the 16th of August fully vaccinated close contacts do not need to isolate.
- They have been advised by their doctor or healthcare professional to self-isolate before going into hospital for surgery.
It is important to note that employees are not entitled to Statutory Sick Pay if they're in self-isolation or quarantine after traveling abroad and they cannot work from home.
Record Keeping
Employers need to keep records of SSP if they have paid an employee who was off work because of COVID-19 if the employer wants to reclaim it. They'll need to keep the following records for 3 years after the end of the tax year they paid SSP:
- the dates the employee was off sick
- which of those dates were qualifying days
- the reason they said they were off work
- the employee’s National Insurance number
Employers do not need to keep records of SSP paid to employees who are off sick for another reason. Employers can choose how to keep records of their employees’ sickness absence. The HMRC may need to see these records if there’s a dispute over payment of SSP.
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Annual Leave Post Covid
With the pandemic, some employees will have been on furlough meaning they are not working. However, it is important for employers to note that employees who were or are on furlough still accrue annual leave. This is because the contract of employment continues during this period. Employees are permitted to take annual leave while on furlough, without their furlough period coming to an end. If they choose to do so, the organisation will need to top up their pay to 100% of their normal wages if they are receiving reduced pay while on furlough.
Employers may wish to require employees to take annual leave during furlough, for example to avoid a build-up of leave that employees will need to take when they are back at work. Managers should be aware of the company’s approach to annual leave for the period of furlough before making any decisions.
Standard employment law provisions state that employers can require employees to take annual leave as long as they give twice as many days’ notice as the period of leave the employee is required to take. For example, if the employer requires the employee to take two week's annual leave at a certain time, the employer must therefore give the employee at least four weeks' advance notice (or what is outlined in the contract of employment).
As employees return to the workplace from furlough, managers may be in a situation where a number of employees will ask to take annual leave at the same time, particularly when they have leave to take before the end of the leave year. Where possible managers should allow the leave however, they need to ensure business continuity.
Interestingly new research by Acas has found that around 4 in 10 British employees (39%) have taken less paid time off work during the pandemic compared to before it started.
The normal rules on carrying over annual leave have been modified under reg.13 of the Working Time Regulations 1998 to allow workers to carry over up to four weeks' annual leave into the next two holiday years, where it has not been feasible for them to take it as a result of the effects of coronavirus which applies to all employees.
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Redundancy in the UK: A Guide to Avoiding Unfair Selection
As you all know the Coronavirus Job Retention Scheme has now entered its final month and will draw to a close on the 30th of September 2021. With this scheme coming to an end companies are now unfortunately faced with the possibility of redundancies having to be considered. The number of redundancies in the UK has accelerated at the fastest pace since the financial crisis. According to ACAS, redundancy related calls to their helpline have increased by over 160% compared to 2019.
If redundancies must occur then we see the following steps should be adhered to:
Collective Consultation
If an employer is proposing to make 20 or more employees redundant at one establishment within 90 days, collective consultation will be required with trade union or employee representatives.
For employers who collective redundancy applies to and who wish to make redundant by the end of the furlough scheme, they would have needed to commence their collective redundancy consultation by the 31st of August 2021.
Non-Collective Redundancy
If collective redundancy does not apply and your redundancies are on an individual level this is non-collective redundancy which is less than 20. In this case;
- You should aim to avoid compulsory redundancies through: voluntary redundancies, agreed short-time working or other flexible staffing arrangements.
- You should also carry out a consultation with every employee individually. The consultation must be meaningful and your plans must not be finalised at this stage.
Next is selecting staff for redundancy. Employers should use fair and objective criteria. Ideally, all employees at risk of redundancy should be put in a selection pool and assessed upon criteria such as: Standard of work, experience / qualifications and disciplinary record. Selecting those who have been on furlough over other employees may not necessarily be fair – these employees may have been parents with childcare issues or individuals with disabilities, so there could be a risk of a direct or indirect discrimination claim.
Notice of Termination
Once you have selected staff for redundancy, you need to give employees notice of their redundancy. The statutory redundancy notice periods are:
- At least one week’s notice if employed between one month and 2 years
- One week’s notice for each year if employed between 2 and 12 years
- 12 weeks’ notice if employed for 12 years or more.
It is always advisable to check your contracts of employment as the contractual notice agreed may differ to statutory notice. Where contractual notice is greater than statutory notice, contractual notice will apply. However, where the contractual notice is less than statutory notice, statutory notice will apply.
Statutory notice pay is protected. If the notice in the contract is the same or less than the applicable statutory notice, 100% of the employee’s normal pay should be paid during the notice period.
However, things are slightly different where contractual notice is greater than the statutory notice period. If contractual notice is greater, by at least 1 week, an employee should receive their normal full pay as long as they are working. If they are not working, they should receive what they would have normally been paid for that absence.
So, if you have an employee who is out of work due to furlough and being paid at 80%, and this employee’s contractual notice is greater than statutory notice, they may be paid at 80% for their notice period. For this reason, it is extremely important to always check the contract of employment.
Redundancy Payments
An individual is entitled to statutory redundancy pay if they are an employee and have been working for the employer for 2 years or more.
- One week’s pay for each full year they have worked when 22 or older, but under 41 years old.
- Half a week’s pay for each full year they have worked under 22 years old.
- One and half week’s pay for each full year they have worked when 41 years old or older.
Redundancy pay is capped with a length of service being 20 years. For employees made redundant on or after 6 April 2021, a weeks’ pay is capped at £544, so the maximum statutory redundancy they can receive being £16,320.
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New Self-Isolation Rules: What the Employer Needs to Know
August 16th 2021 marks a landmark moment in the self-isolation rules implemented to help manage the coronavirus pandemic in England. As of this date, close contacts of someone who has tested positive for coronavirus will not have to automatically self-isolate for 10 days, provided they are fully vaccinated or are aged under 18 years 6 months. This is a huge development for employers who have had to manage the impact of significant numbers of employees being identified as close contacts resulting in significant staff shortages and often severe disruption to the business.
Here is an insight into what the new self-isolation rules mean for employers:
What self-isolation obligations now apply if an employee tests positive?
There has been no change to the self-isolation obligations for employees who test positive. They are required to self-isolate for 10 full days after the date their symptoms first started, or from the date of their positive PCR test, whichever is earlier.
What self-isolation obligations apply if an employee displays COVID symptoms?
Employees who display any COVID symptoms should immediately go home, arrange to take a PCR test and self-isolate while they await the results. ‘Symptoms’ of coronavirus according to the NHS are deemed to be (1) a new continuous cough; (2) a high temperature; or (3) loss of taste or smell.
Do employees have to inform their employer if: (1) they have been contacted by NHS Test & Trace; and/or (2) if they are alerted by the NHS COVID-19 App that they are a close contact of a positive case?
Employees are only legally obliged to notify their employer if NHS Test & Trace informs them that they are required to self-isolate. From 16 August 2021, there will be circumstances where NHS Test & Trace is in touch with an employee but it is then identified that the employee is exempt from self-isolation due to their vaccination status. In these circumstances, employees are not required to notify their employer.
How can employers determine an employee’s vaccination status?
The new rules place the spotlight on an employee’s vaccination status and raise the question of what an employer which is where both employment law and data privacy considerations come into play. Employers must be aware that health data is highly protected as special category data.
The issue is likely to come to the fore in respect of employees who choose to notify the employer that they have been identified as a close contact, or there is a positive workplace case where the employer needs to identify who should self-isolate as a close contact. Here, the employer will be unable to confirm/identify who needs to self-isolate without knowing individual employees’ vaccination status.
Employers should only obtain details of employees’ vaccination status when that data is required to manage specific self-isolation requirements, it may be possible for employers to point to a lawful basis for processing that data in order to determine who is required to self-isolate. The data must be processed in accordance with the data protection principles.
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End of UK Lockdown: Employees Rejoice While Employers Wonder, ‘What Does Workplace Safety now look like?’
On the 22nd of February 2021, the UK Government published its original "Roadmap out of Lockdown" for England, which was initially due to see a "cautious but irreversible" lifting of all legal limits on social contact by the 21st of June 2021. England's Roadmap out of lockdown was divided into four key steps, each step triggered various restrictions being eased subject to the prevailing data on COVID-19 available at the time.
As of the 19th of July 2021, the UK Government has updated its guidance on workplace safety as England moved to step 4 of its roadmap which resulted in the lifting of most covid-19 restrictions. The previous 14 guides to working safely previously distributed have now been replaced by six new sector specific guidelines. Guidance on social distancing, working from home and reduced occupancy has now been dropped and replaced with six priority actions:
- Risk Assessment: There is still a requirement to complete a COVID-19 health and safety risk assessment and to keep this updated. Given that a significant amount of time has elapsed since many businesses and employers first implemented a COVID-19 specific risk assessment, existing risk assessments may need a substantial update.
- Adequate Ventilation: It is still being emphasised that providing adequate ventilation is key to limiting the spread of the virus. This can either be natural ventilation or mechanical, such as fans and ducts or a combination of both.
- Cleaning: Cleaning more frequently still remains a priority, therefore employers should continue to ask members of staff and members of the public to use hand sanitiser to clean their hands regularly.
- Face Coverings: While legal requirements around face coverings have been removed, it is still expected that face coverings will be worn in crowded and enclosed spaces and that businesses should consider the use of face coverings, particularly in indoor areas where they may not come into contact with people they do not normally meet.
- Self-Isolation: Employers and businesses should still turn away people with COVID-19 symptoms and respect requirements to self-isolate.
- Communication: Communicating requirements and training also remain important as does making sure that risk mitigation measures relating to workers who are particularly vulnerable are maintained.
Statements relating to employees working from home is notably absent from the above six priority actions. The government sate employers should continue to support employees working from home where possible however the government expects and recommends a gradual return to the workplace over the coming months.
Equally, references to 2 metres of social distancing have been removed from the previous guidance however it is emphasised that COVID-19 can still be spread through social contact and that reviewing layouts, using screens or barriers or encouraging back-to-back or side-to-side working will remain helpful from a risk mitigation perspective.
Overall, there is a marked change in emphasis compared to the previous guidance. References to making the workplace covid-19-secure have been removed. The reference to "stop the spread" has changed to "reduce the risk", "minimising risk" has changed to "reducing risk", "make your business safe" has changed to "make your business safer", and "you must consider the recommendations" has changed to "you should consider the recommendations".
So what should businesses and employers do next?
Given the high prevalence of the COVID-19 Delta variant in the UK currently many offices are seeing a reduced number of employees wishing to return to the workplace. This has meant that many office based employers have chosen not to significantly alter their current working from home practices in the short-term. With the possibility of additional restrictions being reimposed later this summer or in the autumn, businesses and employers should prepare for the possibility of needing to reimpose some of the restrictions they may have had in place previously.
For now, businesses and employers should start to update their COVID-19 risk assessment to help them gain a better understanding as to what they need to do as part of Step 4 of the Roadmap and continue to keep informed of updated guidance from the Government and review their Covid Secure policy to ensure it reflects the new guidance. - View a sample of the Covid-19 Secure Policy here.
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Care Home Workers & Mandatory Vaccinations: The New Regulations
On the 13th of July 2021, Greece and France made COVID vaccination mandatory for healthcare workers, following the precedent set by Italy. Now, the UK is the next to make the COVID vaccine mandatory for workers in Care Quality Commission-registered homes.
Until recently the UK authorities have not made the Covid-19 vaccination compulsory for any citizens, however on the 22nd of July 2021, regulations were approved in relation to the Health and Social Care Act 2008 . The Act makes it compulsory for a person working or providing professional services in Care Quality Commission-registered care homes to be fully Covid-19 vaccinated, unless they have a medical exemption. The purpose of this regulation, which will only apply to England and come into force on the 11th of November 2021, is to better protect care home residents from death and serious illness.
This regulation will apply to all workers employed directly by the care home or care home provider (on a full-time or part-time basis), those employed by an agency and deployed by the care home, and volunteers deployed in the care home. Those coming into care homes to do other work, for example healthcare workers, tradespeople, hairdressers and beauticians, and CQC inspectors will also have to follow the new regulations, unless they have a medical exemption. The clinical exemption will be clarified in the Code of Practice that will be issued to accompany the Regulations at the end of July 2021. The regulations do not apply to visitors of care homes.
There will be a 16 week grace period from the 22nd of July for all care home workers to be vaccinated, with the 16th of September being the last date for care workers to get their first vaccine so they are fully vaccinated before regulations come into force. The government estimates that by the time the vaccine becomes compulsory, approximately 87% of the workforce will have received both doses.
Employers that fall under these new regulations are highly advised to start putting measures in place so as the regulations can be implementded by 11 November. The steps should include introducing a Covid-19 Vaccination Policy, which includes the medical exemptions that will be acceptable and evidential requirements. The policy should be introduced after discussion with staff. If employees/workers are still reluctant to have the Covid-19 vaccine then you will need to take steps to look at whether they can be redeployed to other areas of the business or even dismissal. Employers forced to dismiss an employee in this circumstance should do so before 11 November 2021, being mindful of any notice periods.
Bright Contracts has recently been updated to include a vaccine policy which covers these consideration points for our customers to include in their employee handbooks, which can be found under the terms and conditions tab. If you wish to download a trial of the software to have a look at a sample of this content, you can download the software here.
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Everyone's Talking About Flexible Working
The coronavirus (COVID-19) crisis has completely shifted the way we work and live. Companies have had to quickly adopt new initiatives and technologies to ensure employee safety whilst maintaining productivity. Working from home has now become the normality for many of us and adapting to these new ways of working is essential for business continuity.
The UK has been ahead of the curve with the right to request flexible working having been in place since 2014 and after more than a year of enforced home working, UK employers are anticipating an influx of flexible working requests as restrictions lift and staff begin to return to the office.
What is flexible working?
Flexible working can refer to a variety of arrangements includes but is not limited to; part-time work, ‘compressed hours’ over fewer days, remote working, ‘flexitime’ and job sharing arrangements.
Flexible working arrangements can be formal or informal. Some organisations choose to amend the written employment contract when new working arrangements are put in place, and/or include flexible working policies in the employer’s handbook. However some forms of flexible working, such as working from home, are likely to be offered informally, for example in agreement with an employee’s line manager.
Examples of kinds of flexible working that you can request include:
- reducing your hours to work part-time
- changing your start and finish times
- having flexibility with your start and finish time (also known as ‘flexitime’)
- doing your hours over fewer days (‘compressed hours’)
- working from home or elsewhere (‘remote working’)
- sharing the job with someone else (‘job share’)
The right to request flexible working
The legal position is that all employees with at least 26 weeks’ continuous employment are able to make a statutory request for flexible working, in writing, for any reason. A new request can be made once every 12 months. Where a request is made, the employer must deal with that request in a reasonable manner and notify the employee of the outcome, including any appeal, within a three-month period, unless that timeframe is extended by mutual agreement.
Making a request
When making a request for flexible working there is no form however in order to qualify as a statutory request, it must:
- Be in writing.
- Be dated.
- Explain the change they would like to their working pattern.
- Explain when they would like the change to come into force.
- Explain what effect the change would have on the business.
- Explain how such effects might be dealt with.
- State that it is a statutory request.
- State if the employee has made a request previously and if so when.
