June 2, 2020

Masterclass in Preparedness – getting ready to return to work after COVID

Foreword

We asked one of our DPG facilitators and human resources subject matter experts to share with us strategies and tips that might help all HR professionals with the challenges over the next few weeks and months. Theresa Mayne chose to offer some thoughts around preparedness and VUCA (Volatility, Uncertainty, Complexity and Ambiguity) – concepts she has often shared with her CIPD students on our online learning course – the DPG Level 7 in Human Resource Management. Fans of Theresa, like me, may remember her recent Blog around the unsung HR professional heroes – the secret army that is helping organisations and individuals through this COVID crisis. I hope this blog might help you and other heroes with the challenges ahead and commend it to you. Please note this is written by a subject matter expert but does not constitute legal advice.

So, there is a caveat here: Theresa or DPG accept no responsibility for anyone acting on the tips and ideas in this blog as circumstances, the law, and guidance is changing by the day. Individuals, employers and organisations are advised to consult HR specialists and legal experts to explore the particular situation and the wider context at the time you need to.

(Cliff Lansley – DPG Director)

______________________________

How do we, as HR Professionals, prepare our staff to return, and workplaces to re-open, after COVID?

Preparedness is a word that we have got used to hearing over the last few months – have you thought about where this concept comes from and how important it is going to be in the coming weeks and months?

The acronym VUCA was coined by the leadership theorists Warren Bennis and Bur Nanus in 1987 in response to the end of cold war conflict. VUCA stands for Volatility, Uncertainty, Complexity and Ambiguity. There has never been a more VUCA world than the world that we live in today. The enemy this time is invisible, we are all vulnerable to it and there are no ‘sides’. The world is, in the main, fighting together to try to counter the hundreds of thousands of people who are dying as a result of this pandemic. Yet governments and society are also under the competing pressure that we must start to rebuild our economies and re-open our offices, shops, and workplaces.

So how can we prepare a return to the workplace – in particular from a HR perspective – using the VUCA framework?

TheVUCA model is based around two questions:

  1. How much do you know about the situation?
  2. How well can you predict the outcome of your actions?

The more we understand about the uncertainty that we are facing the better prepared we can be.

In HR we are now turning out focus to returning our employees and colleagues back to work – maybe from furlough, maybe from working from home, maybe from part-time working, or maybe a combination of these. Most Governments around the world, including the UK, have set out a staged approach to opening back up their economies, which includes which businesses can reopen and when. The Government has published industry specific guidance to assist with the planning and strategic management of the changes necessary to open our workplaces safely. Understandably though, there is a lot of fear and anxiety among employees who having spent 3 months being told to stay at home, respect social distancing, and avoid coming into contact with other people. Many are now being told by their employers to go back to work – and yet there are still thousands of new cases of COVID-19, and resulting deaths, being reported every day. As HR professionals we are likely to be equally anxious about the situation, but the burden, challenges, and responsibility is on us to deliver – even though we have the same anxieties as our work colleagues.

So how can we return employees back to the workplace, and how can we give reassurance to those employees that are being brought back?

In an attempt to be prepared, let’s take a look at some of the issues that HR are responsible for:

What if an employee doesn’t want to return to work?

It is important for managers, leaders, employers, directors, governors, trustees, and others making these decisions draw on HR expertise and understand their employees’ concerns and to demonstrate to employees that they are really being listened to – by really listening and hearing. Risk Assessments are being conducted as a standard early step prior to anybody returning to work so a good way to getting employees on board with the return to work programme is to get them involved at this planning stage. It may be wise, or even a necessity, to have Unions or Employee Representatives involved, but, if this doesn’t apply, then maybe offer out the opportunity to staff to be part of the Risk Assessment Committee to help ensure the employee voice is heard and their fears and issues are taken into consideration.

Despite best efforts to get employee participation and involvement, there may still be some staff that simply do not want to return to work. They may be enjoying the flexibility, the sunshine, the time with loved ones, and the work-productivity and efficiency increase – they may feel less tired now they don’t have the daily commute to the workplace. So what then? If it’s a policy decision, government guidelines permit it, and all staff are instructed to return to work, then they have to – there is little further support that can be offered other than a series of reassuring conversations. Ultimately, if the workplace has been organised to maintain social distancing, maybe with screens, PPE (Personal Protective Equipment), etc., in place, in accordance with Government guidance, then employees will be told that they must return to work and normal workplace rules (and employment law consequences) will apply to those that refuse.

The Furlough scheme will continue to be available in the UK until the end of October 2020, so for workplaces where there is a gradual return of staff, it might be possible to select staff based on their willingness to return first – some staff are bursting to get back to their previous ‘normality’. This may not go down well with all staff of course, so it is important to be open and communicative about mental health and wellbeing and the genuine need to support those that need it whilst it is possible to do so.

What if employees think the workplace is unsafe and are quoting S.44 ERA 1996?

Despite all efforts to follow Government guidance and putting into place all control and PPE measures that are highlighted in the organisation’s Risk Assessment, some staff may continue to refuse to attend work on health and safety grounds. Section 44 of the Employment Rights Acts 1996 (S.44 ERA) grants employees the right to not suffer any detriment if they reasonably believe to be in serious and imminent danger which they cannot be reasonably expected to avert. There has been much debate over this in recent weeks, but the current understanding is that COVID-19 is capable of being considered a serious and imminent threat so this means that employees are entitled to not attend work (or leave work if they have attended) and not suffer a detriment (i.e. be disciplined or dismissed). There has been an even livelier debate about whether the wages/salaries of employees that do not return to the workplace, citing S.44 ERA as the reason, should be paid for the hours that they do not work. Many lawyers steadfastly say that they should be paid, as removal of wages would be a detriment prohibited by the Act. Other lawyers have a strong argument that they should not be paid, as they are not ready, willing and able to work.

So, what do you do if an employee refuses to attend work due to COVID and cites S.44 ERA?

Perhaps the greatest risk to the business (as I will explain) is that of copycat behaviour. As there is no case law to establish how the Employment Tribunals will rule on the issue of pay (relating to COVID-19 specifically) – mitigation of risk might be the most sensible approach. If an employer continues to pay an employee who refuses to attend work, citing S.44 ERA, then there is no incentive for other employees to attend work either as they can also refuse to attend work, cite S.44 ERA, and be paid in full to stay at home.

If possible, and in accordance with Government guidance, employees should be told to work from home (if possible) or remain on furlough (if still available). If either of these are not possible, and the employee continues to refuse to attend work, a period of unpaid leave could be granted (and cover for their role organised if appropriate). If a court later rules that not paying them is unlawful, the remedy would be to pay them what they would have earned (at the time, not the current rate of earnings) as this is their loss. Therefore, employers could accrue the earnings so that funds are available to pay the staff their unpaid wages if ordered to do so (which might possibly be a few years later). This means that the risk sits almost entirely with the employee. Copycat behaviour is a lot less likely if the risk is with employees so fewer staff are likely to refuse to attend work knowing that they will not be paid.

Importantly, so as not to suffer a detriment other than unpaid wages, employees should not be disciplined for refusing to attend work in these circumstances. Moreover, in the UK, Section 100 of The Employment Rights Act 1996 protects workers from being dismissed on health and safety grounds and any dismissal where Section 44 did apply, and Section 100 now applies, would be regarded as automatically unfair. Two years’ service is not required to be protected under Section 100 of the Employment Rights Act 1996.

Must/can employees be COVID-19 tested as part of the control measures?

One control measure that employers might consider introducing is the routine testing of all staff entering the premises or working at client sites. This is a thorny issue as not all staff are willing to be tested, or to even have their temperature checked – may even be an issue if done covertly at a distance with thermal cameras, as in some airports. There is also the issue of health information being regarded as a special category of personal data under GDPR (General Data Protection Regulation). ICO (Information Commissioner’s Office) states that processing special category data to protect someone’s life is a ‘vital interest’ and so collecting, processing and storing this data can be justified, even without employee consent. However, consent is always preferable so if an employer was intending to conduct health assessments on staff then I would strongly advise that they read the ICO Guide on Workplace Testing found in the Coronavirus hub (link HERE). Employers will need to update the Employer Privacy Notice and communicate transparently with all staff.

Employees that refuse to be tested, without a justifiable reason, might be managed under the company’s disciplinary policy for failure to follow a reasonable management instruction. COVID-19 is a notifiable disease so if cases of COVID-19 are identified then the relevant authorities must be informed and the NHS Test and Trace service will be activated.

Not all workplaces will find it is appropriate or necessary to introduce testing as a control measure. Industry specific guidance is available from the www.gov.co.uk website (link HERE) but be sure to keep checking for updates as it continues to be updated regularly.

Can employees refuse to use PPE such as not wanting to wear masks or face coverings?

There are some workplaces where employees will be come into the close proximity of other members of staff, customers or other people, and this cannot reasonably be avoided. Most workplaces are making it possible for staff to wear face coverings, if they choose to do so, but in some settings it is mandatory to wear gowns and a face mask which is certified to filter coronavirus (such as N95). The Company Risk Assessment will determine which staff must and which staff can wear PPE.

The UK Government are now advising that people should wear a face covering in public spaces (including workplaces) where social distancing is not possible. This is to slow down the spread of the disease and is aimed mainly at reducing the number of particles entering the atmosphere around the wearer, and not protecting the wearer from those around them.

Employees that refuse to wear PPE deemed mandatory would be breaching health and safety conditions and can be managed under Company workplace rules and policies (i.e. the Disciplinary Procedure). Where the wearing of masks or face coverings is not mandatory, it should be introduced on a voluntary basis.

What about employees that become sick or are contacted by the NHS Test and Trace scheme?

As has been the case all through the pandemic in the UK, employees that become unwell and are displaying symptoms of COVID-19 should self-isolate immediately and call NHS 111 for advice.

Testing is now available for any person suspecting that they may have COVID-19. A test can be organised by the employer or by the individual themselves. Tests can be organised online using the NHS website HERE.

Anyone who has symptoms must self-isolate immediately and order a test. If the test is positive a minimum of 7 days of isolation (from when your symptoms started) is required and all members of the household (or people they have come into close contact with) who do not have symptoms, should self-isolate for 14 days. They should inform people themselves and share details with the Test and Trace service. The NHS Test and Trace service will then get in touch with the person’s contacts informing them that they have been in close contact with somebody that has tested positive for COVID-19 and must now self-isolate.

If a person is contacted by the NHS Test and Trace service they will be told to self-isolate for 14 days from the day that they were last in contact with the person that has tested positive. If this person develops symptoms they should order a test and the cycle begins again for them.

The Test and Trace service is explained in full details in the government guide here HERE.

If it is deemed that there is a localised outbreak of Coronavirus in the workplace (a cluster or a hotspot) then the workplace may be forced to ‘lockdown’ temporarily.

What about Strategic HR and Business Planning for return to work after COVID?

Now that we understand more about how coronavirus is impacting us on a daily basis and how to manage the practical aspects of returning more people to the workplace, we can start to improve our preparedness. But it is important to remember that any strategy built around the reopening of the workplace must necessarily be an emergent strategy for we must anticipate that we could be forced into lockdown again at any given moment for any amount of given time. Remember COVID is riddled with VUCA – Volatility, Uncertainty, Complexity and Ambiguity.

HR must look at all the possible resource planning issues from having only a very minimal number of employees not attending work (and how to manage these) to having whole departments, sites or the entire business going back into lockdown. Business Continuity Plans need to be carefully thought about so that any given scenario can be very quickly deployed.

Being aware + being ready = being prepared

How can HR professionals be in a state of preparedness? There are a few things that must be done now to get the business ready for returning workers:

  1. Read government guidance and NHS information about the coronavirus. Understand as much about this disease as you can so that you have sufficient knowledge to answer questions and predict behaviours.
  2. Fully brief yourself on the Coronavirus Job Retention Scheme (CJRS) as it develops so that you can plan and prepare for the tapering off of government financial support. More information will be released by the UK Government on 12thJune 2020 so put it in your diary to download the new guidance once published and set aside some time to read it fully.
  3. Meet with business leaders to understand the business strategy and ask questions about how healthy the company is and if there is likely to be any impact on the staffing levels (plan ahead with this).
  4. Spend time with operational managers to understand what support they require to get the practical measures in place ahead of reintegrating people back into the workplace. Be involved in the Risk Assessment process and establishing the new control measures to mitigate risk. Ensure mental health and wellbeing support is available and communicated.
  5. Be available to staff as a point of contact to field any concerns and anxiety. By being ‘the gatekeeper’ you are more likely to be able to manage anxiety and respond to concerns quickly and effectively.
  6. Monitor, monitor, monitor. Don’t assume that once people are back to work that this is an end to it. The situation can change very quickly with track and trace so the business needs to continually review its strategy and business continuity plans to survive any further unplanned disruption.

In summary…

And finally, HR hero, remember that during a flight emergency the adults are drilled/instructed to put the oxygen mask on themselves before attending to children. Protect and take of yourself and contact DPG or join the DPG Community of HR Professionals ( https://community.dpgplc.co.uk/) for free resources and contact with others in similar situations. We are in this together.

Theresa Mayne – DPG online CIPD course facilitator and HR subject matter expert.

(written 1st June 2020).