It is reported that more than 8 million UK workers have been furloughed since the Coronavirus Job Retention Scheme (CJRS) was introduced in mid-March. The equivalent scheme for those that are self-employed has seen more than 2 million applications for grants. Therefore, approximately one third of the working population of the UK is currently furloughed or not at work.
Returning to work
It is expected that most workers will return to their previous roles over the next few months, with one of the main challenges for employers being to work out how they can resume operations safely to avoid the spread of infection and heightened risk. This is crucial, as it is a fundamental principle that employers are responsible for providing a safe and suitable working environment. Whilst the Government has provided sector specific guidance, every employer is obliged to assess and minimise the risk for their particular environment. There will be changes common across most businesses including increased hand washing and cleaning facilities and separating or distancing workers to promote safe working.
Employers must produce a written risk assessment where 5 or more employees are employed, and it is necessary to consult with workers. What is conflicting between the various guidance and the legislation is whether employers are obliged to consult with workers collectively through representatives, or directly.
Consultation: the guidance
The Working Safely During Coronavirus (Covid-19) Guidance published by the Department for Business Energy and Industrial Strategy on 11th May 2020 states:
“you must consult with the health and safety representatives selected by a recognised trade union…. or a representative chosen by workers”
The Acas Guidance now states:
“employers should consult with staff (ask for and consider their views to try and reach an agreement) about return to work”.
The Health & Safety Executive Guidance states:
“in a small business you might choose to consult your workers directly. Larger businesses may consult to a health and safety representative chosen by workers or selected by a trade union.”
The legislation states that employers can choose to consult with their employees directly or with elected representatives. Therefore, it would appear that unlike the provisions governing collective consultation, in the context of proposed redundancies or TUPE transfers, where consultation is required to take place with recognised or elected representatives, this is not the case with health and safety consultation legislation (despite the wording of guidance and recommendations from other relevant bodies).
The primary aim of collective consultation is to try and reach an agreement. Consultation with individuals is less likely to enable a consensual decision and, in real terms, consultation with the workforce as individuals typically means informing them of the measures that are proposed and inviting comment. This could make for a higher risk workplace with a confused, fearful group of workers who may in practice be less able to express their concerns.
Taking the correct steps
A safe return to work has never been so important to get right, and further restrictions imposed by the Government could be catastrophic for a business. The CJRS will enable businesses to take their time to properly assess the risks, consult with employees and implement appropriate measures. This may be by having test runs with small numbers of workers and a gradual return to work. It is important for employers to engage the workforce in planning and implementing the changes necessary to keep them safe. Therefore, collective compliance is critical even if collective consultation is not legally required.