THE NEW NORMAL WORKPLACE
As the country takes tentative steps out of lockdown, employers are turning their attention to what their own “new normal workplace” might look like. But how can they comply with government guidance in a way that’s workable for them and their employees? Given that pre-Covid-19 workspace density levels may now look laughable in some quarters, many of you will be thinking about a hybrid approach, perhaps with some staff attending newly configured workspaces while others continue to work from home. Other employers may be thinking about introducing the kind of monitoring that may have been unthinkable just three months ago. The price to be paid for a safe return to work.
In this article we discuss some of the risks that employers should consider when shaping their new normal workplace, and how to mitigate them.
How can we make the workplace workable?
Necessity is the mother of invention, so the adage says, and we are certainly seeing some novel approaches to a return to work. One of our favourites is the genuine case of the law firm which, in its quest to create a new normal workplace but faced with a shortage of perspex shields to protect its employees, decided to install a dozen or so 2m x 2m tents in its open plan office. Bunting is apparently optional.
Tech too has a place in the new normal workplace. Reports suggest that some UK companies are already testing a wearable device that will warn employees if they stray within the 2m boundary of another employee. Temperature and even breathing monitors are being posited as the way forward for larger organisations.
While understandable, the desire to accelerate a return to work could well present risk to employers if not managed carefully: workplace density levels are not the only game in town. Taking the law firm example above, there must be a genuine question of whether those employees should be expected to attend the office at all when surely many (if not all) could work from home? And are tents, with their reduced ventilation, really a better option than restricting the number of employees in the office, with or without Perspex shields? While the example may at first glance seem ingenious, and on any view entertaining, it highlights some of the issues that employers need to grapple with if, in creating their new normal workplace, they are to protect their employees’ health and mitigate risk to the business.
Where to start?
The starting point for any discussion on this topic must be the Health and Safety at Work Act (1974). Under the Act employers are required to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all employees. As part of this duty, a “suitable and sufficient” risk assessment must be carried out to identify what needs to be done to control health and safety risks in this case, in respect of their new normal workplace.
An important thing to remember here is that an employer’s health and safety duties are non-delegable, that criminal liability can attach to both the business and its individual Directors, and that neither the coronavirus pandemic, nor the need to create a new normal workable workplace, changes that. This means that relying on a tech (or any) solution, without thought, may not protect an employer if the particular risks of a given workplace require additional or different measures. For the same reason, simply following Government Guidance, while helpful, will not necessarily provide a defence to a breach of health and safety duties where specific risks ought to be controlled.
To give a couple of examples, while Government Guidance suggests that face masks should be worn on public transport the advice that workplaces should not encourage the precautionary use of extra PPE to protect against Covid-19 outside of healthcare or clinical settings remains. However, ONS statistics suggest that certain jobs are subject to a greater risk of Covid-19 infection than others, for example security guards and drivers. Setting aside the moral rights or wrongs for a moment, a reasonable employer might well assess the particular risk to its employees as being so great that clinical grade PPE should be provided to those higher risk roles. Similarly, while a 2m social distancing policy may be enough in an open plan office, it might not be adequate in a badly ventilated or windowless one: more distance might be required to ensure that the new normal workplace is workable. Consider too, your air conditioning: a study from China suggests that an outbreak of Covid-19 *may* have been caused by the placement of an air conditioning unit (https://www.independent.co.uk/environment/coronavirus-air-conditioning-droplets-spread-virus-a9487026.html). Experts acknowledge the limitations of the study, but the research illustrates the importance of thinking laterally. The key take home is that there is no “one-size fits all”.
Given the above, all employers should certainly be carrying out a detailed risk assessment of their new normal workplace, but best practice may well be to consider consult with your employees to ensure it is workable in practice. The risk assessment referred to above should be written if there are more than 5 employees and published if the business employs more than 50 people (although the more forward thinking employers will do so even if they have fewer employees). Once the risks have been assessed and control measures identified, those measures should be implemented and kept under review. Any breach of control measures by employees should be met with swift disciplinary action. Above all, despite the understandable desire to get things moving quickly, we are advising our clients to take their time to work carefully through the issues, and reminding them that the Government Guidance is unlikely to give them a free pass if they get it wrong.
Mind the GDPR
With reports suggesting that a rise in employee monitoring is inevitable if employers are to adapt to the new workplace normal https://sifted.eu/articles/gadgets-stop-touching/ employers also need to be mindful of data protection laws, particularly where they are collecting employee health data. The CBI suggests that a number of employers are exploring monitoring the temperature of their employees https://www.ft.com/content/d144d0c9-206b-47de-a394-af2d3266bee7, with a normal temperature a condition of being able to enter the new normal workplace. Such data would be special category data for the purposes of the GDPR, and employers will need both a lawful basis for processing the data, and to satisfy an Article 9 condition.
What condition might be relevant here?
The Article 9 conditions include consent, but ICO has been clear that consent is unlikely to work in the employment context. An employer might therefore rely on compliance with employment protection law (i.e. the Health and Safety at Work Act). Employers who decide to take this approach should understand that they will be under a further obligation to satisfy the Schedule 1 condition 1 of the Data Protection Act 2018. This requires processing to be necessary for compliance with the employment protection law, and that an appropriate policy document is in place. Employers should therefore carefully consider whether temperature monitoring (or any other monitoring) is necessary to fulfil their health and safety duties, or whether other, less intrusive measures might be equally effective. Given that an employee might have a raised temperature for many reasons (not to mention that some with Covid-19 might not have a fever at all) a detailed rationale should be documented and communicated if this kind of monitoring is adopted. A Data Protection Impact Assessment of the new normal workplace may also be necessary.
As an employer, even if you can satisfy yourself that the measures to be introduced are compliant with data protection laws, you should consider carefully the practical implications of those measures. On temperature monitoring, a number of questions spring to mind. Will employees test their own temperature, and if so, what happens if they falsify their reading to be allowed to remain at work? What if some employees refuse to have their temperature taken? What steps will be taken if someone does have a high temperature, and on what basis will they be excluded from the workplace (if that is the policy). All these matters should be considered in advance and set out in an appropriate policy.
In summary, while the “new normal workplace” is within reach, employers must think carefully about the specific risks in their own workplace and how they can be mitigated. This will involve carrying out risk assessments and engaging with employees to ensure business objectives are met.
