Just back to work?

Where we are

On 11 May 2020, the UK Government published its COVID-19 Secure Guidance, setting out its measures for a safe return to work. Guidance from the Scottish Government followed on 29 May, and we now have tailored versions for use across eight of Scotland’s key industries.

The basic tenet featuring in all of this guidance is that (at least for now) two metres of social distancing should be maintained wherever possible. As well as this, employers must carry out a risk assessment and, in doing so, consult with their workers, and any relevant trade union, on the measures proposed. Whilst it is not a requirement to publish the risk assessment, unless there is a good reason not to (for example, the presence of commercially sensitive information), the UK Government expects employers to do so for reasons of transparency.

As clients continue to grapple with what this guidance means for them, below are some of the trickier questions they and practitioners should have in mind moving forward.

Do employers need to provide PPE?

If an employer’s risk assessment indicates that PPE is necessary, they will need to provide this to staff and ensure that it fits properly. The guidance states, however, that it is unlikely you will need to implement the wearing of PPE, face coverings or face masks, unless PPE was mandatory in your workplace prior to the pandemic.

As such, for most employers, it is unlikely that PPE will be a necessary consideration. If, however, you find that your employees feel more comfortable wearing face coverings or masks, you should not necessarily discourage them from doing so, and you may even find it helpful to implement this as a temporary, reassuring measure.

What should employers do if an employee calls in sick with COVID-19 symptoms?

In the first instance, employers should speak to the employee, and ascertain who, and what areas, they had contact within the workplace over the preceding days. They should then speak to those members of staff, and analyse the workspaces, as well as any CCTV they may have in place. Public Health Scotland’s guidance does not suggest closing the workplace, but employers should carry out rigorous cleaning.

Employers should err on the side of caution and treat situations where an employee describes COVID-19-like symptoms, but has not necessarily tested positive, in the same way as a positive test result. You should tell the individual to stay home and to self-isolate for seven days. Ultimately, in both cases, the employee’s return to the workplace should be based on the time that has passed since the onset of their symptoms, the extent to which there has been a reduction in those symptoms, and of course whether they have recovered from the illness generally.

What should employers reveal if an employee is diagnosed with COVID-19?

Employers are not obliged to inform the rest of their staff that a colleague has been diagnosed with the virus, but it would be good practice to do so. The Information Commissioner’s Office (ICO) states that you should inform your workforce of any positive cases and, as an employer, you have a duty to ensure the health and safety of your employees.

Since personal health information is special category data under GDPR, employers must take care to preserve the individual’s privacy as much as possible and not name them directly. In reality, employees will likely be able to identify the individual, and so employers should remind their staff that they must not speak to the media and, in particular, should not name anyone who may have the virus, or discuss the events publicly, for example on social media.

What about informing the local health authority?

The ICO has confirmed that data protection law will not prohibit employers from sharing this information with authorities for public health purposes, or with the police where necessary and appropriate. In terms of whether they should disclose in this way, the ICO has made clear that employers must also consider the risks to the wider public where they choose not to share this information.

Are employers allowed to make temperature checks?

A number of employers are reported to have implemented temperature checks in the workplace. If a temperature reading is taken, but is not recorded against an individual employee or visitor, for example for compiling a report that includes the data as anonymous, then this may not constitute personal data, in which case the GDPR will not apply.

Note however that the GDPR sets high standards for data to be anonymous. In many cases, it will not be necessary to retain temperature readings once satisfied that the individual does not have a high temperature, and the information can therefore be destroyed immediately, or not recorded at all.

If a temperature reading is taken, and then recorded against an individual employee’s file, or used to allow or deny access to a building, this will constitute personal data and the GDPR will apply. As this is health data, you may only process this information on certain specific grounds under both GDPR and the Data Protection Act 2018.

There are only two relevant grounds on which you could rely in this situation. The first is that processing is necessary for the performance of rights and obligations in connection with employment. Given that neither the Government nor the World Health Organisation recommends taking employees’ temperatures, it will be difficult (but not impossible, depending on the circumstances) to argue this processing is necessary.

That leaves consent, and there are well-documented difficulties with consent in the context of the employer/employee relationship, due to the imbalance of power. Employers adopting temperature checks should be aware that they may find it difficult to show employees freely consented, if they will not be admitted to the workplace if they refuse. For these reasons, temperature checks will generally only be appropriate in higher risk settings such as healthcare.

In deciding whether to initiate a programme of temperature checking (or, for that matter, other COVID-19-related data processing activities, especially those that entail processing of sensitive personal data such as health, race or ethnic origin), employers need to follow the general compliance requirements of the GDPR. This means carrying out a documented data protection impact assessment to ensure that the collection and processing of temperature data complies with the core GDPR requirements. These include:

• being transparent about how you will provide employees with information about the data processing;
• having a clearly defined business purpose for the processing, and ensuring that the data will not be used for incompatible business purposes;
• ensuring the data is adequate, relevant and the minimum necessary to achieve the purpose (which could be problematic if the benefit of taking temperatures is unclear);
• accountability (including documented policies and processes); and
• enabling individuals to exercise their rights.

In the context of testing employees for COVID-19, the ICO recommends considering the specific circumstances of your workplace: what type of work do you do, what type of premises do you have and is working from home possible? You should also be clear about what you are trying to achieve and consider whether personal information is necessary for that purpose.

Can an employer monitor how its employees move around the workplace?

The ICO has confirmed that monitoring (for example, using thermal cameras or other types of surveillance) is acceptable, as long as it is necessary in the circumstances, proportionate, and in line with employee expectations. On 18 March, the Surveillance Camera Commissioner (SCC) and ICO updated the data protection impact assessment for surveillance cameras and issued new guidance for use in this context. Employees must always be informed before any such monitoring takes place, and its use must be proportionate, necessary and justified by a legal basis.

Recognising employee concerns

What if an employer brings in the necessary measures indicated by their risk assessment, and implements the correct processes, but some of their employees still refuse to come to work? The reality is that this will happen in some cases and employers need to be prepared.

If an employee does not want to come into work because of genuine fears relating to COVID-19, employers should take these concerns seriously. ACAS guidance states that, where possible, you should allow the employee to work remotely or take time off work as holiday or unpaid leave. You should also remind employees of any support systems you have in place, such as an employee assistance programme. In particular, employers should consider mental health, and whether the employee might be suffering from anxiety or stress resulting from the pandemic. In some cases, this will exacerbate an existing condition, which may qualify as a disability under the Equality Act 2010. Where that may be the case, you must be mindful of the duty to make reasonable adjustments.

On a basic level, as a first port of call, employers should have an open conversation with the employee to seek to understand, and listen to, their individual concerns. If they fall into the category of someone who is vulnerable or extremely vulnerable, or indeed if they live with someone who does, this will also require special consideration. In these cases, you should pay particular attention to the risks involved, and consider adapting duties to facilitate homeworking. If you have made use of the job retention scheme and furloughed employees in these categories prior to 10 June, you should consider keeping them on furlough leave for the time being.

If an employee unreasonably refuses to attend work, however, and cannot work from home, you may consider disciplinary action. You should ensure you deal with similar cases consistently, as with any disciplinary matter, whilst also taking into account the particular individual’s circumstances and reasons for refusing to attend.

What special protections do employees have in this context?

Under ss 44(1)(d) and 100(1)(d) of the Employment Rights Act 1996, employees have the right not to be dismissed or subjected to any detriment on the ground that “in circumstances of danger which the employee reasonably believed to be serious and imminent and which he could not reasonably have been expected to avert, he left (or proposed to leave) or (while the danger persisted) refused to return to his place of work or any dangerous part of his place of work”.

What were, prior to the pandemic, seldom-used provisions will no doubt be the subject of much employment litigation over the coming months and indeed years. With both subjective (reasonable belief) and objective (circumstances of danger) elements, it will be interesting to see how the tribunals interpret these provisions in light of the pandemic, particularly where the employer is following both public health and governmental guidance in encouraging and facilitating a return to work.

Employers will wish to do all they can to avoid escalations of this kind, particularly as these provisions are but one of a number of potential avenues of protection available to employees in this context. Employers can do this by engaging with their employees throughout the process, listening to them and making them feel listened to, and considering alternative arrangements where possible.

The new normal

Notwithstanding the efforts being made to facilitate the return to work, it is clear that we may never see an absolute return to what was there before, particularly where office working is concerned. Flexible working, and working from home in particular, has been propelled into the spotlight in a way that might otherwise never have happened. Certainly, in Scotland, “working from home where possible” is set to remain the default position for the foreseeable future.

What was arguably once seen as a “treat” became a lived reality for millions overnight. In perhaps the biggest social experiment of all time, employers have seen flexibility boost productivity, with some of the world’s largest companies announcing that their employees need never return to the office. Technology has come into its own, allowing meetings, webinars and even coffee catch-ups to take place straight from the nation’s livingrooms, and there are already reports that almost half of workers want to continue with flexible working after COVID-19 restrictions are lifted. The question of when schools go back on a full time basis will also have a huge knock-on effect on the nation’s working patterns, in the office working sphere as well as beyond.

While employers can implement various interim changes to help navigate a safe and happy return to work, ultimately they will need to look at what permanent changes they must make to bring in the new normal many employees will be expecting.