What is the legal and moral position on encouraging vs mandating return?
The legal and moral position for employers on encouraging employees to return is a difficult decision to make. Whilst the government in England is 'actively encouraging' those who cannot work from home to return to work there is no legal obligation to do so. Different advice applies in Scotland, Wales and NI whose workers are encouraged to stay at home.
Employers should ensure key decisions around the return to work are taken at board level, and documented properly. Employers have to undertake a balancing act taking into account:
- Managing the health risks employees face in the workplace and travelling to work from potential exposure to the virus
- Financial pressures of their business
- The fact that the furlough scheme may shortly have reduced payments before coming to an end
- The safety risks that new working practices may present to employees and others whilst the threat of infection from Covid-19 remains
- Problems faced by those needing childcare.
Is it essential?
If people can continue to work from home they must continue to do that for the foreseeable future. If they cannot work from home, is their work deemed essential or could the business continue to use the Government’s Job Retention Scheme for longer, giving them the time needed to put safety measures and clear employee guidance and consultation in place?
Is it sufficiently safe?
Employers have a duty of care to identify and manage risks to ensure that the workplace is sufficiently safe to return to. Employers should take their time with gradual returns to work to test health and safety measures in practice and ensure they can work with larger numbers before encouraging more of their workforce back.
Is it mutually agreed?
It’s vital that there is a clear dialogue between employers and their people so concerns, such as commuting by public transport, can be raised and individuals needs and worries taken into account. There will need to be flexibility on both sides to accommodate different working times or schedules as ways of managing some of these issues.
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This webinar and Q&A document reflects our professional opinion of the factors impacting workplace transition in the context of our role as workplace specialists. It does not constitute formal advice and we recommend engagement with specialists, including your own internal or external health and safety advisors, if you are transitioning your workplace to a 'Covid secure' standard. Please also note that the Q&A contains responses to specific questions which therefore may not be appropriate for all types of businesses or workspaces. The spread of COVID-19 and the containment policies being introduced are changing rapidly, and some of the views expressed herein may not reflect the latest opinion of Avison Young. We strongly recommend that you continue to monitor the relevant UK Government advice, and any supplementary local advice. These sources provide regularly updated information on the COVID-19 outbreak: World Health Organization, Government of Canada, U.S. Centers for Disease Control and Prevention, UK Government, Johns Hopkins University COVID-19 Case Tracker.