Covid compliance: what if it goes wrong?

How can you make sure your business is compliant as everyone adjusts to a new world of work?

We all now understand that the pandemic has given us a new normal, and businesses need to be aware that it's vital to manage employees' transition to it. They might be coming off furlough, returning after working from home, or continuing their job remotely. A post-Covid repositioning of the business may mean you introduce new health and safety procedures, change employee terms and conditions or, sadly, lose some jobs altogether.

Whatever your position, you need to handle this transition carefully and sensitively - or risk a host of potential legal trouble. Therefore it's essential your business's compliance protocols are watertight.

That was the message at 'Coronavirus compliance - what if I get it wrong?', a webinar hosted by Mentor consultant trainer Michael Avern and a panel of Mentor experts that addressed some challenges businesses may face in the coming months.

“Mentor has seen a 41% increase in customer employment tribunal claims in the second half of 2020,” said Mentor employment law claims manager Derek McNally. “And they're taking longer to conclude: 39 weeks on average [according to government figures], which adds to business interruption.”

So what must employers be aware of - and how can you prepare?

Furlough

You should have long since given furloughed employees their furlough terms and received their written consent - but if you haven't, don't despair.

“If you have been paying staff at 80%, they can potentially make a claim against you for the 20% shortfall, which could even be backdated,” said Caroline Crampton-Thomas, senior employment law consultant at Mentor. “You must have furlough agreement from staff, even by text or email. If you don't, get it now - it's not too late!”

Covid vaccines and tests

You may want returning employees to be vaccinated and/or take regular tests - but no one is obliged by law to do either. What can you do?

“Don't approach this as a disciplinary matter until you have all the facts,” advised Crampton-Thomas. “The employee may base their refusal on religious or philosophical beliefs, or due to pregnancy, or perhaps they're susceptible to anaphylactic shock - and these will all be covered by the Equality Act. So meet them to understand their reasons before considering formal action. If they have no reasonable grounds for refusing, it could be a misconduct matter, but be cautious.”

Refusal to return

“If an employee won't return to the workplace, try to understand why,” said Crampton-Thomas. “They might care for vulnerable dependants, or live with someone who's shielding. Consider allowing them annual leave or agree reasonable periods of authorised unpaid leave, or let them continue working from home. If they care for a disabled dependant, they are again protected by the Equality Act. Always be cautious.”

New health and safety guidelines

One change prompted by the pandemic is that the stretched Health and Safety Executive (HSE) is using private company spot-check support officers to visit premises to monitor Covid safety. Unlike the HSE itself, they can't force entry. However, a refusal to let them in will likely result in a subsequent visit from the HSE - which will check more than just your Covid arrangements. “Again, it's important to evidence your rules with documentation and that they've been communicated to staff,” Mentor senior safety, health and environmental consultant Peter Nicholls told the webinar.

“If an employee won't return to the workplace, try to understand why. If they care for a disabled dependant, they are protected by the Equality Act. Always be cautious,” Caroline Crampton-Thomas, senior employment law consultant, Mentor.

And if employees won't follow guidelines such as wearing masks? “Again, don't rush in,” said Nicholls. “Carry out a fair and evidenced investigation as to why.”

Coronavirus deaths

Thousands of people who have died from coronavirus may have contracted the disease at work, most obviously in the care sector. What do you do if the worst happens?

“Covid deaths could potentially be reported to a coroner if the virus was contracted in the workplace,” said Nicholls. “But it's important to consider whether they need reporting to RIDDOR (Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 2013). Guidelines are confusing, so take advice, but bear in mind that any RIDDOR-reportable death is more likely to lead to an inquest and a Covid death is more likely to have been caused by occupational exposure, which is in itself almost an admittance of failure.”

“Keep abreast of government guidance, ensure cleaning is done properly and regularly, keep records on staff training and show this has been monitored according to the rules. Be aware Covid rules change regularly, so risk assessments need reviewing just as often.”

Downsizing and redundancies

Thousands of businesses will have to make hard staffing decisions to secure their future. If that means letting employees go, you must be 100% sure to fully document your business case for doing so, said Crampton-Thomas.

“This should set out reasons for proposed redundancies/changes, categories of staff who may be affected and identify the benefits of a restructure.”

“If considering redundancies or changes to terms and conditions, it's imperative to conduct meaningful consultations with staff and explore ways to avoid or mitigate against compulsory redundancies. Ensure you've documented the whole process.”

Employers should also be aware they cannot claim furlough for individuals on notice.

Continued homeworking

Homeworking may suit your business - and employees - permanently. If so, you should review equipment and risk assessments. Said Nicholls: “Working for a long time with display screen equipment (DSE) in poorly suited spaces can lead to musculoskeletal disorders and other problems. Computers, laptops, tablets and smartphones all come under DSE regulations and if workers use such devices daily for an hour or more, you must conduct a risk assessment. Ensure they take regular breaks and you must provide eye tests if a worker asks for one.

“Risk assessments can be completed remotely, such as from the Mentor form on our website. Your role is to supplement the employee's home to ensure a safe working environment - not necessarily a new office, but they must have dedicated proper equipment. Ensure staff don't work too long hours, and have proper screen and refreshment breaks.”

Increased sickness

Some employees will have been so stressed by the past year that their performance may drop significantly or they may take more sick leave. Again, communication, empathy and support is paramount, advised Crampton-Thomas: “People are scared. Talk to them, get a full understanding and reassure them you've taken all steps necessary to provide a safe place of work. Particularly look at the impact that working remotely, living alone and feeling isolated can have on mental health.”

Document everything

Whatever the situation, it's vital to have solid evidence of what has occurred. “If you will need to rely on something in the future, ensure it is documented now,” said McNally. “If you come to a tribunal without evidence, it will come down to who a judge believes on the day.

“Good examples of key documents include records of conversations, witness statements, redundancy business cases, scoring matrixes, pay statements, return-to-work interviews, grievance investigations, meeting minutes, disciplinary investigations, third-party feedback, performance discussions. Also, if employers speak with employees about sickness absence, conduct issues, performance issues etc, these should be documented and placed on their file.”

“These documents all show why you took a course of action. Quite a lot of claims are successful just because the employer made a mistake, so the more documents you have backing your appropriate action, the better chance you have of defeating any claim and not only protecting your staff, but your business too.”

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