Restarting after lockdown some issues for company directors as employers

The government has called on workers incapable of working from home to return to their places of work. However, employers considering how to restart business activity are immediately faced with a potentially confusing situation –

• The devolved governments of Scotland, Wales, and Northern Ireland have decided to maintain the ‘Stay at home’ message. Only England is partially returning to work.
• The continued closure of schools presents a national childcare issue which may prevent many workers from returning. A partial reopening of schools is proposed for the near future, but teaching unions and the devolved nations governments do not currently support the UK government’s intentions.
• Returning workers have been told to avoid public transport. The UK government says that social distancing on public transport means that only 10 per cent of normal capacity is available.
• The UK government’s language concerning the restart in England is heavily qualified, with constant use of phrases such as “…if practicable”. Employers are deprived of certainty in knowing what they must comply with and what they must do to the best of their ability.

The UK government has said at every opportunity that the return to work will be conditional, with each step evaluated in terms of its impact on the transmission of coronavirus. This adds to the pressure on employers, since various government ministers have stated that if the restart leads to a rise in coronavirus transmission (the ‘R’ factor which receives so much attention), then lockdown will resume, possibly in an even more severe form.

Preparing to restart – Where company directors are starting from

Company directors in the UK are one of the few economically active groups in the UK to have been excluded from government support schemes. To be precise – directors paid entirely on a PAYE basis can join the Job Retention Scheme (‘furlough’) but directors paid by dividends or annual sum cannot. The IoD has made positive contributions to the introduction of the two current schemes supporting PAYE employees and the self-employed, but the Treasury has so far rejected the argument to support company directors. At the small- and micro-business level, this means that many company directors may be worse off than their furloughed employees. For many company directors, there is a sense of unfinished business even as the UK government initiates the restart of business activity.

Amid the human suffering of the pandemic, there are many examples of how UK businesses and their employees have responded positively to the various challenges. Millions of workers successfully completed the hurried transition to home working. A significant number of businesses managed a rapid pivot to start producing essential supplies for the NHS and care services. New efficiencies have been discovered, whilst some aspects of business organisation and operation which were previously beyond question have been found to be not so important after all.

Many company directors have found a new appreciation for their own capabilities and personal resilience. Hopefully, the anguish of furloughing has made both employers and employees aware of the bonds between them. This is actually important – the UK government is placing great store on the ability of employers and employees to work things out together as the restart gains momentum.

Preparing to restart – an employer’s responsibilities

As part of its recently-published guidance for each business sector, the UK government includes the following statement which neatly sums up where the government’s evolving guidance stands in relation to the statutory obligations of employers:

This guidance does not supersede any legal obligations relating to health and safety, employment or equalities and it is important that as a business or an employer you continue to comply with your existing obligations, including those relating to individuals with protected characteristics. It contains non-statutory guidance to take into account when complying with these existing obligations.

Simply put – Coronavirus is a (gravely serious) health risk that employers must protect employees from, as per existing safety at work legislation. This is overlaid with developing practical guidance from the government, specific to the pandemic.

The issue for employers is that current safety at work legislation makes them responsible and liable for all hazards to health which they admit or allow to arise in their workplace. On that basis alone, an employer could be held responsible for COVID-19 cases among employees. However, if the British state cannot keep coronavirus out of hospitals, care homes, prisons and even 10 Downing Street, what can any employer do? The UK government accepts that no workplace can be entirely secured against COVID-19:

As an employer, you also have a legal responsibility to protect workers and others from risk to their health and safety. This means you need to think about the risks they face and do everything reasonably practicable to minimise them, recognising you cannot completely eliminate the risk of COVID-19.

Instead of asking “How can I completely protect employees from infection?” – the UK government accepts that this is impossible – it may be more practical for an employer to affirm:

“I shall undertake actions which I can justify to myself, to employees, and (if required) to a court”.

The hierarchy of employer responsibility then becomes:

• Respect your statutory responsibilities to employee health and safety (See HSE website: Employer’s responsibilities). This is the employer’s duty alone.
• Identify which new government guidance applies to your situation and agree its implementation with employees: Working safely during coronavirus (COVID-19)
• Engage employees in discussions to arrive at fair and proportionate measures to balance the demands of work and any personal issues or anxieties. But these measures must not conflict with either of the above. Acas provides an expansive set of recommendations for employee engagement: Coronavirus (COVID-19): advice for employers and employees

The two main requirements are comply with the safety at work laws you are already complying with, and make committed and consultative efforts to follow government guidance as it develops. When in doubt, never forget the primacy of existing legislation, which provides the surest measure of how safe and defendable any decision or action is.

It is vital that employers also understand that their decisions regarding employees remain subject to the 2010 Equality Act. There should be no separate treatment of an employee because of a protected characteristic (age, disability, gender reassignment, marriage/civil partnership, pregnancy/maternity, race, religion/belief, sex, sexual orientation). One example would be an employer telling an employee they deem to be vulnerable because of a protected characteristic to stay on furlough – even if the employee wants to return. Another case might involve an employer altering the workplace to reduce infection risk, but at the same time making the workplace unusable by an employee with a protected characteristic.

Resources for employers

Employers should keep watch for changes to UK Government guidance on workplace activity.

Practical Law’s (usually paid-for) contact has been made freely available to help businesses and individuals get through the pandemic. This content is updated promptly by the expert staff at Practical Law:

Global Coronavirus Toolkit

We draw your attention to the section on UK employment law. In particularly, read the FAQs on coronavirus and UK employment law.

Free HR advice for SMEs

The IoD Information and Advisory Service is aware of at least two networks of HR professionals set up to provide free advice to SMEs during the pandemic. These are not tested or recommended by the IoD, but their good intentions are clear:

Carter Morris – COVID-19 free HR resources

Three Partnership – Free HR Guidance for COVID-19