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17/06/20 Employment Law Update

EML

17/06/20 Employment Law Update

OBSTACLES TO RETURNING TO THE WORKPLACE DURING COVID-19: CHILDCARE

 

On 11 May 2020, the Government published the Health & Safety guidelines that employers should follow when opening up the workplace again in the context of COVID-19.

This guidance comprises different sets of guidelines covering 8 different workplace settings:

  • construction and other outdoor work
  • factories, plants and warehouses
  • other people’s homes
  • labs and research facilities
  • offices and contact centres
  • restaurants offering takeaway or delivery
  • shops and branches
  • vehicles

Crucially, chapter 2 of each set of guidelines includes a section entitled ‘Equality in the workplace’which states that:

‘In applying this guidance, employers should be mindful of the particular needs of different groups of workers or individuals.’

So, although not explicit, this at least suggests that much of the dialogue that takes place with staff before they’re required to return to the workplace should be geared towards establishing their precise circumstances.

There’s no getting away from the seriousness of Coronavirus and how emotive a return to the workplace at this point is likely to be. Disputes will almost certainly arise if employers are too heavy-handed, disregard their workers’ individual circumstances and try to apply a “one-size-fits-all”approach. The relevant guidance refers to a need for employers to consult with staff in this regard.

In this regard, the CIPD has summarised what employers should do and in what order prior to returning their staff to the workplace using the following three questions:

  1. Is it essential?
  2. Is it safe?
  3. Is it mutually agreed?

The first of these involves reviewing whether there’s a need for a return to the workplace at all. Businesses operating in certain sectors have been fortunate insofar as the nature of their work and the available technology has meant that most of the things they can do in the workplace, they can also do at home. However, businesses that rely mainly on physical workplaces in order to operate, such as construction and manufacturing, don’t have this luxury and so need to return as soon as possible in order to survive.

That said, a wholesale return for all workers at once will usually be impossible and so a review of roles and individuals should be undertaken. In terms of roles, this will cover those that can’t be undertaken from home and that are critical to business or operational continuity. In terms of individuals, this will cover those whose roles could be undertaken from home, but their home circumstances are prohibitive or because there’s a lack of necessary equipment or appropriate environment available to enable them to do so.

As part of the process of establishing the precise circumstances of each individual, the employer will likely encounter several different scenarios. One of the most common of these will be employees that point to continuing childcare commitments as a reason why they can’t return to the workplace. In such circumstances, it will not uncommon for the employee to request a further period of furlough.

Such a situation should be handled carefully as forcing a return to work or imposing new working arrangements / hours in circumstances where there’s a lack of normal childcare provision and schools remain fully or partly closed could put female staff at a particular disadvantage and amount to indirect sex discrimination where that disadvantage cannot be justified as a proportionate means of achieving a legitimate aim.

However, that is not to say that a request to remain on furlough cannot be refused. Indeed, it is quite possible that granting such a request would risk HMRC treating a corresponding grant application under the Coronavirus Job Retention Scheme as fraudulent on account of it no longer being the case that the employer cannot maintain its current workforce because its operations have been severely affected by Coronavirus. On the contrary, the business is opening up again and needs the employee to undertake their role in the workplace because it cannot be done at home. As such, this would not appear to be a situation where it would be possible to furlough under the rules of the scheme. As to what the alternatives to furlough might be, the employer could authorise some paid (e.g. holiday) or unpaid leave (e.g. time off for dependents or parental leave).

But before deciding on an alternative course of action, it is vital that the employer gathers enough information to ascertain whether the childcare issues amount to a “cannot”or “will not”situation. In this regard, there is nothing to prevent enquiries being made as to:

  • the nature of a partner’s / co-parent’s employment (and whether they are classed as a key worker); and
  • the age of the child / children and whether they belong to the age groups that will be returning to school imminently.

It is also reasonable to request evidence of any part-time schooling. As lockdown measures ease and people are permitted to visit other households, this will provide further sources of assistance on the childcare front.

As the situation surrounding COVID-19 is subject to so much change in respect of public health guidance and people’s circumstances, maintaining regular dialogue with employees that is both effective and empathetic is crucial. Equally important is balancing the need to take account of individual circumstances with the need to act consistently in order to avoid accusations of arbitrary decision-making.

With all this to consider and so much at stake, it has probably never been more important to take professional advice. We have been providing employers with advice, support and training on HR, Employment Law and H&S matters for almost 35 years. By combining professional expertise with a user-friendly and commercially focused approach, we have grown through reputation and our clients now range from small local businesses to multi-national organisations. Having worked with businesses from most sectors, we have experience of the employment issues typical to each and work closely with clients to tailor our services to their particular culture and operational requirements. If you have any questions on any of the issues covered in this factsheet, or any other HR or Health & Safety matter, please do not hesitate to contact one of our professionally qualified consultants who will be only too happy to help.

 

For more updates like MyPeopleClub 04/05/20 Employment Law Update from EML. Go to our Employment Law Updates page