The relevant laws to look at in this situation are:
1 The duties under the Health & Safety at Work Act
2 Management of H&S at Work Regulations
3 Common law duty to take reasonable care of workforce H&S
4 Implied employment contract through custom and practice relating to H&S
5 The duty not to discriminate under the Equality at Work Act
Employee relations
In the cold light of day employees will look back and consider how well protected they felt during this outbreak, both in terms of their H&S, the finances and the future of their employment. To this end employees need to know what steps the company is taking and why as the situation unfolds, so they can respond to their new situations.
Therefore, it is important to have a contingency plan which identifies the level of exposure communicate it to all employees, continue to review it and continue to re-communicate it.
Also, to develop strategies, H&S and working arrangements e.g. homeworking, to protect people and prevent spread.
The schools closing will mean more than ever the need for people to balance their work with home life, be sympathetic to this and at the same time focus on finding win-win outcomes.
Adopt communication strategies that will mean employees can get up to information, ask questions and receive responses that are consistent across the entire organisation.
Remember that not all roles are equal and not all people within those roles are equally qualified or equally depended upon by the company, but if you are consistent with the criteria you apply for determining whether someone can work more flexibly then you will be treating them all equally, even though the outcomes will be varied.
Things to look at whether the role can function in a homeworking arrangement, whether the person will have all the support they need in order to function in their role, once they are removed whether the remaining employees will have the support they need to function, whether the homeworkers line manager has the skills and knowledge to keep them engaged and motivated from a different location.
Mental health
When sharing information, it is important to refer only to trusted sources of information before sharing it.
More and more people are experiencing anxiety. Managers should talk to them and ask them what might be contributing to their anxiety. If it’s appropriate to do a risk assessment, where necessary engage Occupational Health who understand the effects of anxiety and what steps can be taken to reduce it. It will be necessary to continually review risk assessments in a continually changing set of circumstances such as this.
Appoint wellbeing champions who can come alongside the person and sign post them to places they can get help.
Sick pay
There has been a lot of confusion around when SSP is and is not payable in relation to the Coronavirus.
1 Statutory sick pay is payable when someone is self-isolating because they are sick with symptoms of the Coronavirus from day one of sickness.
2 It is also payable when someone has to self-isolate because they share a home with a family member/partner who is sick with the symptoms of the Coronavirus.
Employees who are the first person in the household to be sick should self-isolate for 7 days from the first day of symptoms. Other people in the household should self-isolate for 14 days from the same date. Employers with less than 250 employees can reclaim up to 2 weeks.
Currently no statutory sick pay is payable to anyone who is self-isolating for any other reason.
If employees do not want to attend work because they are afraid for their H&S, but it is safe for them to work i.e. there is no one with symptoms in the business that poses a risk to them there is no legal duty to pay them. If someone refuses to attend work after a risk assessment has been carried out and any risks posed have been removed, then ultimately it may be necessary to initiate the disciplinary procedure. However, investigation will be crucial to understand the reasons become while they may not be in a vulnerable group, they may be living with someone who is.
Fit notes /medical certs
Employees who are self-isolating for reasons 1 & 2 above, can now contact NHS111 for an isolation note. However, bear in mind it may not be easy so employers can however take in on trust.
Employees who have other illnesses completely unrelated to the Coronavirus should be able to get a telephone and video appointment with their GP to obtain a fit note to whether they are either fit or unfit for work, however given the demand on the NHS this is could be delayed, investigate to find out the facts before withdrawing sick pay.
GDPR
Under normal circumstances employees’ medical information must be treated confidentially. When a person goes off sick the type of sickness must not be shared with others. However, at the same time the company has a duty to provide a safe place to work and to control dangerous diseases in the workplace. Therefore, where the illness falls into this category employers should seek permission to disclose the type of sickness to other employees. In the unlikely event that the employee refuses, the company will need to disclose it on the grounds of H&S but ensure that this is limited to those directly at risk.
Assessing suitability for homeworking
Focus on 4 main areas:-
- Attitudes to remote working
- Impact of remote working
- How quickly a person can adapt to remote working
- What leaders can do when leading remote working teams
Attitudes to remote working
Underlying attitudes influence the way we engage in changes like a change to remote working. Some managers believe being visable equals being productive. When asked lots of managers agree that remote working is a good idea because they trust themselves, but when asked whether they feel they can trust their team they are not so sure. Some managers distrust remote workers, believing there are more distractions for them at home and they find productivity more difficult to monitor. However, when challenged very often they recognise that remote working can help employees be more focused and if managed well can drive higher levels of engagement.
Psychological impact of remote working
When remote working employees experience a lack of sociable contact, as there are less opportunities to connect, e.g. share a break, share lunch, which can lead to feelings of isolation. This means managers need to reach out more often to a remote worker and on a more regular basis. The remote workers themselves have to be high in self-management, adopting a routine e.g. put on full business dress and go to into their office in order to set boundaries between home and work. Being always connected through email can make it feel like the working day never ends so they need to be self-disciplined not to pick up their phone, even just to read an email.
How quickly people will adapt to remote working
Contrary to popular belief the people who excel remote working are extroverts because they are more included naturally to take the initiate to connect with others. Remote workers are usually naturally more adventurous with technology. Also, they are general more inclined to think ahead, plan and apply structure to the tasks they undertake.
It is important for managers to discuss and agree with remote workers how much face to face time they will have and by what means. Face to face time increases performance but be conscious that preferences around when, where and how will vary from remote worker to remote worker. Encouraging people to try video conferencing initially without video to begin with will help people to adapt to using it. Gradually introduce using the video element and increase it to build up people’s confidence and eventually develop the habit.
What leaders can do to support remote working
The most effective thing a leader can do is to show that they care about making sure the time they spend with each of member of their team is equal, by spend as much time with their remote workers as they do the others. Don’t gravitate to what is easiest. Remote worker leaders will need to proactively communicate more with remote workers. Increasing communication is the single biggest factor that will reduce conflict.
Lay off/Short time
If contracts have a clause you can invoke it, but there are some statutory rules that still need to be observed (see our earlier communication regarding this). However, if not you will need to consult with employees explain the reasons why it is needed and gain their agreement.
Redundancy
If it involves more than 20 employees you will need to collectively consult, which will require them to elect representatives if employee numbers are less than 100 then consultation should be a minimum of 30 days. Employers should understand what support is available from the Government before considering redundancies.
Don’t underestimate the power of taking a partnership approach. Very often employees when asked will come with great ideas to avoid redundancy that management may not have considered such as part time or salary cuts.
Vulnerable groups
People in vulnerable group or who are living with someone who is in a vulnerable group may be concerned, it is important to listen to their concerns, conduct a risk assessment and involve them in the process. If there are no risks identified medical suspension doesn’t apply, or if risks identified have been removed and homeworking is not an option the employee cannot simply self-isolate and receive SSP because the government would have to change the law. Try and understand the issues they face and try and agree other options, e.g. unpaid leave, holiday, or paid leave if the company can afford it.
It is important not to force people into working from home or suspending them without first discussing options and agreeing the best action with them. Age, disability and pregnancy are all protected characteristics, people in these groups must not be treated less favourably.
Employee engagement and productivity
Keep in touch with the whole work force, keep them updated of decisions made and the reasons for them. Make it two-way conversation so they have the opportunity to ask questions. Where an employee is thrown into a new situation make sure they know what is expected of them, how they will be supported and what practical tools will be placed at their disposal. As employees working remotely can’t see their manager’s reactions to their outputs, give verbal recognition “I really appreciate what you are doing” because gratitude motivates the giver and the receiver.
