General

As the final stage of lockdown restrictions in England are delayed until July 19th and the Government’s COVID Job Retention Scheme (furlough) reduces from July onwards.

Overview

In response to scientific analysis that the ‘Indian’ or ‘Delta’ variant is now the dominant strain in the UK and significantly more transmissible than other COVID strains, the Government has confirmed that the final stage of easing lockdown restrictions in England will be delayed until July 19th with the aim that an extension to lockdown measures will provide more time for people to receive first and second doses of the vaccine to maximise protection against the virus.

This means that social distancing, mask-wearing and limits on sporting events, theatres and cinemas will continue and employees should work from home where possible and organisations should take steps to facilitate this.

Job Retention Scheme (CJRS)

Since March 2020 the Government has provided employers whose businesses have been affected by the coronavirus with salary assistance, the Coronavirus Job Retention Scheme (CJRS), also referred to as the ‘furlough scheme’.

At the time of publication this scheme has been extended to 30th September 2021, below is a summary of the scheme over the coming months – please note the Government’s reduction in contribution from 80% from July onwards:

Source: HMRC

To make a claim for furlough days, submissions must be made by the following deadlines:

Source: HMRC

Should amendments need to be made for any claims these must be made by the following deadlines:

Source: HMRC

Record Keeping

Presently Government guidance is a little unclear in relation to document retention time-scales, currently ranging from 5 and 6 years, however it essential to retain a record of the following:

• The amount claimed and the claim period for each employee.
• The Claim Reference number.
• How calculations were made.
• Where employees are placed on ‘flexible’ furlough, their usual hours, including any calculations and the actual number of hours they worked.

For more information from the HMRC about COVID support schemes visit: HMRC’s digital assistant additional assistance is available at: contact HMRC

Temporary Adjustments to the Recruitment Process

During the recruitment process UK law has always required employers to conduct ‘right-to-work’ checks, evidenced via original documents, signed and dated to confirm validity. As a result of COVID restrictions, the Home Office has introduced temporary adjustments to the process, permitting employers to view these on-line in the presence of the owner, obtain copies/validate in a subsequent video call. As a result of the Government’s announcement to extend the date for the easing of lockdown restrictions and social distancing measures, these temporary adjustments will remain in place until 31st August 2021. NB. Employing an illegal worker can lead to a fine of £20,000, criminal charges, reputational damage and/or the loss of any sponsored workers.

For further guidance visit: https://www.gov.uk/guidance/coronavirus-covid-19-right-to-work-checks

Preparing for your employees’ return to the workplace

Employee Communication
It is essential that employees are provided with reasonable written notice of return, whether on a permanent or flexible furlough basis (even where furloughed employees were given an end date to furlough) so important contractual requirements are adhered to and employees have reasonable notification of any changes, so arrangements can be made e.g. to childcare, other caring responsibilities.

Employees should receive a letter confirming the end of the furlough/flexible furlough period and the intended return to work date, to include the following:

• Return date.
• Return arrangements.
• COVID compliance workplace changes that have been implemented to ensure a safe return to work.
• Advise them of their obligations and any new processes.
• Remind them of key company policies e.g. reporting concerns in the workplace, sickness absence etc…
• Confirm any temporary changes e.g. working times/patterns in writing.

Employment law requires that all contractual changes are agreed by the employee, even if these are made on a temporary basis. It is recommended at all times that this is placed in writing and counter-signed/dated by the employee to confirm their understanding and acceptance.

It is important to note that if an employer imposes contractual changes this could lead to the employee deciding to resign and the potential to bring a claim for constructive dismissal, or, perhaps (which may be more likely in the current market) remain in post and claim damages for breach of contract, or compensation for unlawful deductions from wages.

Ensure that all changes are fair and do not directly/indirectly discriminate any group or groups of employees.

Workplace Assessment
All employers must carry out a COVID-19 Risk Assessment in-line with Government guidance. The objective is to identify sensible measures to assess and control the risks of COVID in the workplace. It is advisable to involve your employees in all decisions about health and safety and (where applicable) consult with H&S Representatives and any recognised Trade Union(s).

The results of your Risk Assessment should be communicated to all employee’s and you should prominently display a notice in the workplace to confirm that this has been undertaken.

To find out more about how to make your workplace COVID secure visit the following Government links for additional support and guidance: https://www.gov.uk/guidance/working-safely-during-coronavirus-covid-19

The following provides useful guidance for special schools and other specialist settings e.g. the childcare sector: https://www.gov.uk/government/publications/coronavirus-covid-19-send-risk-assessment-guidance/coronavirus-covid-19-send-risk-assessment-guidance

Return to Work Options
Where continuation of home-working is not possible, consider the following:

• Plan for the minimum number of people needed to work and operate safely and effectively so that contact with different people is kept to a minimum.
• Consider staged/phased return to work, shift-working, revising rosters, splitting teams, staggering start/finish times, break-times etc.
• Consider temporary flexible working arrangements, adjust or reduce working hours, change working times.
• If employees rely on public transport to travel to work, can reasonable adjustments be made, or assistance provided to avoid public transport?

Ensuring the Workplace is ‘return ready’

• Nominating an individual and/or team responsible for auditing compliance to workplace safety and delivery of COVID-19 training.
• Maximising the use of remote working tools, avoid hot-desking and in-person meetings.
• Closing/suspending all non-essential work areas, tasks and/or operations.
• Designing new workplace layouts to ensure social distancing, hygiene measures are in place.
• Ordering safety equipment e.g. temperature test kits, masks, gloves, visors, close contact wristbands, hand sanitisers, putting up appropriate signage, tape on floor etc.
• Introducing additional hygiene processes for communal areas and facilities and high contact areas; door handles, telephones, counters, toilets etc.
• Consider how the sharing of equipment, tools, desks, phones can be minimised or avoided.
• What restrictions (or bans) will be placed on visitors the workplace? To ensure there is documentary evidence, some companies are implementing ‘visitor questionnaires’.
• Review your workplace policies to ensure that they cater for COVID and remote working, for example:
  • COVID policy, risk assessments, questionnaires and checklists
  • Homeworking and/or Remote Working Policy (to include H&S Assessments)
  • Absence Policy (to include reference to ‘long COVID’ or ‘Post COVID Syndrome’
  • Holiday Policy
  • Flexible Working Policy.
• Consider offering Mental Health First Aider training for key personnel.
• Management training to include developing skills in communication, effectively managing your remote team, spotting the signs of anxiety, providing clear and supportive direction etc.

First Day Back
Employee safety has to be the priority of the day for everyone. Some employees may be cautious about returning to the workplace for fear that it puts them at a greater risk of contracting COVID. Line Managers to allay concerns by advising them of the measures that have been taken to ensure the workplace is as safe as it can be, e.g. deep-clean workspaces, hand sanitizers, protective clothing, restricting visitors etc.

As previously established, it is essential that all protective actions taken are documented; the following are suggestions as to how this information can be captured, recorded and audited:

• Consider a re-on-boarding meeting to welcome everyone back to the work-place and cover:
  • Process changes
  • Expectations
  • Individual obligations and responsibilities
  • Processes for social distancing (at least 2m apart) and hygiene measures.
• Deliver COVID training to include:
  • How to identify and recognise the signs and symptoms of COVID
  • How COVID is spread
  • Cleaning routines and hygiene controls (including respiratory hygiene, cough etiquette
    and handwashing and physical distancing)
  • What to do if an employee becomes unwell/believes they have been exposed to COVID
  • When individuals in the workplace have had contact with a confirmed case of COVID
  • Cleaning offices, public spaces where there are suspected or confirmed cases of COVID
  • Rubbish disposal, including tissues
  • Travel restrictions
  • Restricted movement advice
  • Familiarising key staff with your COVID plan.
• Ensure Line Managers have familiarised themselves with key policies e.g. absence, sick leave, compassionate leave, dress code etc., and their role to watch, stop and report any cases of alleged harassment or any other form of discrimination.
• Remind all employees of their own personal obligations and refer to relevant HR Policies.
• Ensure processes are in place and clearly communicated to ensure returning employees are not potentially infected or have been exposed to the virus – and the escalation process for raising any concerns/issues in the workplace.
• Can you offer health and wellbeing support for example through Occupational Health or your Employee Assistance Programme?
• Issue wellbeing questionnaires (note your obligations under GDPR).
• Line Managers to hold documented 1-2-1 meetings with all team members with the discussions focussed on employees’ health and wellbeing and include exploring whether any temporary adjustments or support is needed to enable the employee to carry out their role.
• Be aware of any employees who may have experienced a recent bereavement and offer them support when they return to the work-place.
• Implement measures so that anyone suffering from ‘long COVID’ (Post-COVID syndrome) can be recognised early and supportive interventions put in place.

What happens when the Government Scheme ends?

When the scheme ends you need to consider whether:

• You can bring all employees back to work on their normal hours (confirmation in writing required).
• You need to reduce their hours or change their working patterns (contract variation and agreement required and TU consultation/negotiation may be required, where applicable).
• Termination of employment (please note that normal redundancy rules apply to furloughed employees and remember, voluntary redundancies could make the process easier for all involved).

All of the above options will require you to formally confirm your decision in writing and follow your own internal and the relevant statutory process(s). In some instances, where a Union is recognised advance notification and consultation may also apply.

If you have any questions, or require further support please contact us.

We all know this is a tricky and everchanging journey, if you need any support or assistance B2P is here to help.

Keep an eye out for our second article in the series “Weathering the Pandemic: Recovery – Return – Re-engage” focussing on the bigger picture as we transition into the ‘new world’ and covering various topics from building team resilience, maintaining employee well-being, tailoring support to address employee concerns, reluctance to return to the workplace and recognising and supporting ‘long COVID’.

The following is for guidance purposes only and should not be regarded as a substitute for taking legal advice and keeping appraised of the Government’s regular updates.