Getting back to work after COVID - what do you need to think about?

Flexible working measures for returning to the workplace

The UK Government is currently proposing the introduction of staggered shifts or hours as one option for allowing employees to safely return to work.

What are staggered shifts or hours?

Rather than everyone starting together, staggered hours mean that you have different start, finish, and break times at work. Once those times have been chosen or agreed, they become a contractual change.

The Government thinking is that staggering start and finish times can help ease congestion on public transport and traffic at peak hours and mean that large groups don’t arrive and leave at the same time. Staggering lunch breaks will also help prevent groups from gathering in rest areas or in queues at local shops.

Social distancing measures still need to be considered, alongside the now expected high standards of hygiene and regular cleaning and disinfecting which support health and safety at work. If employees have to work closely together, you may also want to consider PPE and testing. Official Government guidance in this area is still awaited on the Government website.

Employee rights surrounding shifts

If you are thinking of making shift or hours changes to smooth the return to work, irrespective of COVID or the size of the change or the urgency, you need to consider existing contractual rights. In addition, you will need to think about statutory rights, such as working time, flexible working, and anti-discrimination legislation.

Before setting out, know what you can and cannot do and explain and agree any changes with your employees before you make them.

Remember, you can only make a change (‘variation’) to an employment contract if:

  • your employee agrees to the change
  • your employee’s representatives (e.g. trade union) agree to the change.

So, communicate. A lot. If you try making unilateral changes to employees’ contracts without agreement, you will be in breach of contract and likely find yourself at Tribunal.

Discrimination

Remember that normal discrimination laws apply even during the pandemic and you should not discriminate in the working patterns you want to adopt.

As an example, women are the main childcare providers statistically, so the imposition of new working patterns without agreement may be indirect discrimination as it has a detrimental impact on a female employee and women in general. Always think - does the employee have to work that particular shift pattern to achieve the business aim?

Whatever you do, keep records which justify the need for change, particularly if there is a potential discriminatory impact. If there is a less discriminatory way of doing things, it’s likely to be a better way in the long run

The practicalities of staggered shifts and social distancing

The thinking behind staggering shifts or hours is that they should enable your business to restart and to operate effectively whilst giving space for employees to stay more than 2 metres apart. To further reduce the potential for contact, the Government guidance also suggests that businesses could consider splitting staff into teams, for example, with alternate days working from home or across a day and night shift.

You might also need to think about:

  • Using signage such as floor markings to help social distancing
  • Staggering breaks and lunches, commuting times and start/opening times
  • Avoiding hot-desking and limiting numbers in the workplace to reduce the risk of cross-infection
  • Having employees facing away from each other
  • Avoiding or limiting business travel and in person meetings
  • Giving guidance on the use of public transport
  • Considering arrangements for ‘queuing’ to enter premises and reviewing the use of refreshment areas, washrooms and other common areas, etc
  • Keeping doors open wherever possible to reduce the number of things staff need to touch.

If you are considering changes, a few more things to think about:

  • Always clearly explain to employees the rationale behind the changes and how they can help to make them a success.
  • Confirm any agreed changes you are going to make in writing, even if they are only temporary.
  • Consider asking all employees returning to work to confirm they have understood and will abide by new workplace protection rules (e.g. social distancing, hygiene practices and self-reporting illness)    
  • Ask for, and review feedback, especially around changes which impact people’s personal circumstances
  • Get line managers behind the new ways of working and actively supporting the employees who are being asked to work in a new way.
  • Train employees on protective behaviours and the relevant use of PPE
  • Carry out regular H&S inspections and review your approach on a regular basis. Make changes based on lessons learnt and feedback. Stay flexible

Whatever you are thinking to do, allow plenty of time for planning and, if you do make changes, consider whether they are reasonable. If not, assess the risk that you take by implementing them before acting.