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The duty of employers during the pandemic

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Talent in Logistics’ Ruth Edwards caught up with Mike Hayward and Maria Gallucci from Woodfines Solicitors about the duty of employers during the pandemic and into the future.

Ruth Edwards (RE): What steps do you think need to be taken by employers when re-integrating their teams into the workplace? 

Mike Hayward (MH): Everything here will depend on the size and type of business, and how it is organised, managed, and regulated. Whatever sector you work within, there will be regulatory bodies giving specific guidance, so it is important to start there.

I urge employers not to panic. Look at the core, fundamental legal requirements (largely set by the health and safety at work regulations) which say that every business has a duty of care to those that come into their businesses as visitors or workers. Although we are all adapting to the world with COVID-19, let's keep track of some of the fundamental safeguards that have to be in place. 

You can only do your best. And one of the things that I would certainly advise businesses on, is to keep note of the measures taken. The Health and Safety Executive and the Government are talking about trying to take reasonable steps to achieve best practice, rather than this being set in law.

RE: Are there any specific workplace policies/procedures that may need a review as they will now be inaccurate in light of the pandemic?

MH: Yes, so this is a really important opportunity to review all of those policies and handbooks! Use this time as an opportunity to look at the procedures and processes you already have in place, refresh them and, where you can, apply the COVID-19 guidance from the Health and Safety Executive and the Government.

Ensure that these changes are communicated to teams effectively. Share your updated risk assessments so people are knowledgeable about the changes made, even if they are working from home. You may want to set up “toolbox talks”, whether remotely or in the workplace (with social distancing) giving updates to the staff as to what your expectations are, and what measures you are putting in place. Also, to keep a record when you communicate this to your teams. Include when it took place, who attended, and get people to confirm that they read the instructions (get signatures if you can). It's all about the documentation showing the steps you are taking in order to do what you can reasonably in these circumstances.

Rules can be very debilitating. You can feel bogged down by the amount of guidance that’s coming through. So, step back, consider what you need to do, implement all that you can, get advice where it's necessary, and talk it through with associations, and people around you.

RE: We may see an increase in whistle-blowing due to health and safety concerns in the workplace, do you have any guidance for employers on how to manage that?

Maria Gallucci (MG): It essentially comes back to health and safety, it's not just the risk of whistle-blowing claims if employers don't take health and safety seriously, employees also have rights not to be dismissed or treated detrimentally if they raised health and safety concerns. 

So, firstly, to avoid complaints and certainly then to avoid any claims, the employer should ensure that they comply with health and safety regulations and their duty of care towards their employees. Employers have a duty of care for the health and well-being of their employees under health and safety legislation.

Secondly, is dealing promptly and comprehensively with any complaints that are raised. So if an employee does raise a complaint, then the employer should take steps to investigate it, take it seriously, and also take steps to address the concerns. What they shouldn't do is treat that employee adversely because they've raised those concerns. 

They should also ensure that others don't either, because the employer can be vicariously liable for the actions of other employees. The employer should make sure that all employees know that if, if another employee raises a concern about health and safety. That they don't treat them badly because of that, that their co-workers, don't decide to treat them detrimentally. Directors and senior managers also have a duty to disclose wrongdoing anyway.

RE: Can you give us some guidance around the work retention scheme and government guidance here?

MG: There's been an awful lot that has happened. So, essentially, the government job retention scheme, enabled employers to place employees on furlough leave. For a period of time, and for a minimum of three-week period, and they were entitled to a grant from the government, which covered 80% of wages. And employers can choose whether to pay just the 80% or whether to top it up to 100%. 

When placing somebody on furlough leave, you have to inform them formally in writing and make sure you have their consent as you are temporarily changing the terms of their employment. 

We are now coming to a point where the government is reducing the scheme and essentially getting those employees back into the workplace. So, from July it will be possible to get furloughed employees back into the workplace, before now it was very strict in that employees could not work at all. Employers can now think about bringing back employees full or part-time. Over a period of time leading up to October the government grant will slowly be reduced as well.

It’s a good point now for employers to start thinking about how they're going to manage, reducing or ending that furlough leave. Whether they are going to reduce it, step by step, by bringing people back part time or whether there's going to be a point where they're going to essentially end it. There is no set procedure for ending furlough. It depends on whether the agreement put in place by the employer, when they put their employees on furlough, refers to a process for ending furlough, for example, any notice that should be given.

RE: Let’s celebrate the sector…

MH: The Undersecretary of State for Roads and Transport actually said that the whole nation will owe the haulage and logistics sector a huge debt of gratitude. Keeping the supply chain going was an unprecedented challenge, and the logistics sector faced it with outstanding dedication and professionalism. I absolutely echo those words – whether it's the person behind the wheel of the truck or the people back in the transport operation, this has been a really mammoth task and one that everybody should be very proud of.

To hear more from Woodfines Solicitors, listen to the full podcast on the topic on the Talent in Logistics website.

TAGS: Interviews
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