By Gillian MacLellan

Businesses emerging from lockdown in Scotland and England appear set to do so at different times. However, employers north and south of the border are turning their attention to the next phase of what a post-lockdown workplace will look like. And while the safety of staff will be the main focus, there are both practical and employment law issues. Regrettably, for many, this phase will involve the start of redundancy processes, although in some cases these decisions may be delayed now that the Coronavirus Job Retention Scheme has been extended until October.

Many employers are considering how they can bring staff back to work safely, and to shift the focus as they start to look to the longer term. People who have been working from home successfully for the last 2 months will in many cases continue to do so for many more months to come. Some organisations are going further and are now embracing the move to home working, seeing this as an opportunity to be more agile and potentially rationalise their property footprint.

Employers considering allowing home working longer term need to think about whether additional support measures are needed, in particular around health and safety, mental health and ongoing communication. Those workers who previously worked in close proximity to their supervisors may need additional support with development and training. There is also that all important question of how you keep a “team feel” when your team are not physically together. And last but not least, employers need to think about whether this new world entails changes to existing contracts of employment and HR policies. It can all be done but takes planning; there is no “one size fits” all solution.

Employers planning for workers to return to the workplace, for example into a shop or factory, are in a very different position. This pandemic has redefined what safety means in the workplace. A door handle or other everyday piece of equipment could be a source of infection. Risk is potentially everywhere. Social distancing and hygiene measures will become intrinsic parts of workplace life. The UK Government has released detailed guidance covering the measures employers must put in place in different workplace settings to manage and control risk. Scotland, of course remains in lockdown. A Framework document for moving out of lockdown was published by the Scottish Government on 23 April but further details are expected on the steps employers must take when restrictions start to be lifted north of the border in order to ensure staff can return to work safely.

For all employers, COVID-19 health and safety risk assessments will be a key starting point. The obligation on employers is to do everything that is “reasonably practicable to minimise the risks”, with the UK Government guidance recognising that employers cannot completely eliminate the risk of COVID-19. A significant factor in employees coming back will be the confidence they have in whether their employer is fulfilling its duty of care towards them. So good communication is vital, as is consultation and training around what measures are being put in place.

Some employees will not want to return to work, for a variety of reasons. They may still be shielding or have a health condition or concerns about travelling on public transport. Employers should listen carefully to those concerns and work with employees, not least because of lurking legal risks.

So for employers, there is much to think about as we move into the next phase. While the economic pressures on many businesses cannot be ignored, this is not an exercise where corners can be cut. Planning ahead is key; there is no blueprint for what comes next.

Gillian MacLellan is a partner at law firm CMS.