And there it is.  We’ve heard from the Prime Minister this evening and as widely trailed, there will not be any form of binary cut-over between the lockdown and getting the country back to work.  It’s going to be a gradual process with the Government operating social and economic levers to contain the reproduction rate (R) of the coronavirus. 

Nonetheless, this is the starting gun and businesses are already working hard to put in place practical measures to enable them to gear up within the constraints we’ve just heard about.  Every sector will have to address different practical issues.  Boris Johnson has just urged construction and manufacturing workers to get back to work from tomorrow morning – not much notice there! 

It will be clear to most of us that what may be required in a manufacturing operation and its associated supply chain will be very different from the steps a services business needs to take to operate efficiently.  Yet despite these differences, all businesses will need to weigh up the legal risks they are likely to face.  This is uncharted territory for most of us, so we have tried to highlight some of the areas we feel most, if not all businesses and their directors, should be thinking about.

Discrimination

Many businesses will be contemplating a staged return to work.  When selecting which members of your team you need back at work first, consider the risk of discrimination claims.  Under the Equality Act, there is a defence of objective justification to some discrimination claims and there are exceptions to the fundamental rules which employers can rely on in certain circumstances.  Document your decision-making process and take legal advice if you identify a potential risk in this area.  Think about the consequences of leaving someone on a less beneficial furlough scheme while others are back at work on full pay.

Data Privacy

You may feel there will be a need to conduct basic health checks (e.g. temperature screening) on employees and visitors.  Controlling and processing this sort of sensitive personal data may be illegal and even where it is not, you will need to put in place a robust policy to avoid falling foul of data privacy laws.  Again, specialist legal input in this area will be important.  Consider asking people to self-screen if you think it might fulfil your requirements, so you are not dealing with their data.  Once you have decided on a policy, operate it consistently with everyone participating to reduce the risk of discrimination claims.

Employees who become sick

Think about how you will deal with employees who subsequently become ill with Covid-19.  Do your current policies allow you to suspend them?  What about vulnerable individuals?  How will you deal with colleagues they have worked with and those who are alerted by the track & trace regime?  Does your current sick pay policy deal with these unique circumstances?  It’s a sensitive area and we’d recommend you get advice on this before formulating and communicating your policy.

People who are reluctant to work

Some individuals may be reluctant to come to work because of a perceived heightened risk of infection.  We expect most employers are likely to take a pretty sympathetic view in these circumstances, but this will need to be balanced with a clear policy to provide the business with some protection against abuse.  Putting in place procedures which follow the Government’s guidelines (see further below) may go some way towards demonstrating to your staff that you have taken all reasonable precautions to protect them from unnecessary exposure to Covid-19.

Redundancy & short working

It seems sadly inevitable that many businesses will not be able to regrow their workforce to pre-pandemic levels.  With the furlough programme likely to wind down in the coming months, the loss of financial support which enabled employers to retain staff will leave them with little alternative but to contemplate redundancies.  This then requires an assessment of how to go about the redundancy exercise.  We think it is likely that the required consultation can be carried out during a furlough period, but collective consultation requirements (needed when an employer proposes to dismiss 20 or more employees “at one establishment” in a 90-day period) will need to be thought through including the election of representatives.  Get advice on this, because the cost of getting it wrong can be high.

It may be that redundancies can be avoided in some cases by reducing working hours, but bear in mind this will need the consent of all those affected.  Again, there will be practical matters to consider such as obtaining and documenting that consent while people are on furlough or otherwise away from the workplace.

Communication & training

This is not so much of a legal point, but crucial nevertheless.  Once you have worked through your approach to all of the issues we have flagged up here it is vital that everyone in the business knows where they stand and that managers understand the policies so they can be applied evenly across the business.  In any return to work programme, this should feature early in the timeline.  Having a policy is one thing, but a failure to roll it out effectively will leave your business exposed.

Health & Safety

In our view, this is a significant area of potential risk – not just for the business, but for its directors as well.  Under the Health and Safety at Work etc. Act 1974 (HSWA 1974), employers are responsible for ensuring the health and safety of their employees and those that are affected by their activities so far as reasonably practicable.  Most businesses will already have a written risk assessment, policy and training materials as required by HSWA 1974, but these will undoubtedly need to be reviewed and updated to address the unique circumstances of the current pandemic.  We would urge all businesses to take advice on this, conduct a critical review of all of their health & safety polices, update their risk assessments and immediately incorporate any changes into their staff and management training and communication.

Lawyers like to refer to the corporate “veil” which protects shareholders from liabilities incurred by their companies, but in many companies directors and shareholders are the same people and directors can be held criminally responsible for health & safety offences. 

We know from talking to many clients that they have real concerns about the reality of putting in place watertight measures which will ensure no additional health & safety risk for employees who return to work while the pandemic continues to rage around us.  How can they be comfortable that the measures they put in place will be sufficient to protect them from future allegations of breach of duty?  Of course, there is no certain answer to this.  But a good starting point will be to consider and carefully apply the Government guidance for employers which is being regularly updated.

Insurance

Once you have updated your risk assessment and policies, we would also recommend talking to your insurers and briefing them on the measures you are putting in place.  Your employer, public and D&O liability coverage should be the primary safety net for any claims against the business and its directors.  If your insurers have any additional requirements, find out now and do everything you can to implement these to put yourself in the best position to be able to rely on your insurance policies in the event of a claim.

We are in such an uncertain and evolving situation that no-one can claim to have the answer to every question thrown up by this Covid-19 pandemic.  But there are undoubtedly steps you can and should take as a business to mitigate your risk.  We hope these pointers are helpful and please feel free to contact us should you require more specific advice in any area.  Ortolan Legal has been operating as a remote-working business for 10 years.  We will all be at our desks tomorrow morning as usual!