Ensuring a smooth, safe return to work…
By James Tamm, Director of Legal Services at Ellis Whittam
Having shut up shop for almost three months, retailers will be itching to get back to business. But with the potential for a myriad of employee relations issues, as well as health and safety regulations, employment law and the recent government guidance to comply with, reopening your store is not as simple as flipping the closed sign.
As 15 June draws closer, all eyes are on retail businesses and there is enormous pressure to get it right. Planning ahead is therefore essential, and there are a number of steps you can take to prepare for the unknown.
- Review government guidance
On 11 May, the government published its ‘COVID-19 Secure’ guidelines – the result of engagement between the government, Health and Safety Executive, public health authorities, business representative groups, unions, employers and local authorities – to agree the best way to make workplaces less infectious.
In addition to five key steps that apply to all businesses, the government has also introduced further, more detailed, guidance specific to retail settings. Start by familiarising yourself with the recommendations and implementing the relevant controls.
- Conduct a COVID-19 Risk Assessment
COVID-19 is a biological hazard, and like any workplace hazard, it is a legal requirement to carry out a risk assessment and introduce suitable and sufficient control measures that reduce the risk of contracting the virus to as low a level as is “reasonably practicable”. No doubt the assessment will be guided by, and contain, some of the recommendations made in the government guidance.
Communication here is key, not only as it is a legal requirement to consult with employees on health and safety matters but also to instil confidence and encourage a return to work.
- Determine demand and staffing requirements
It is highly unlikely that customer demand will return to pre-crisis levels immediately, so you will need to to plan your staffing requirements and structure for this new normal. Will you need people to start and finish at different times to comply with social distancing? Will you need to reorganise your workforce, perhaps redeploying some employees to other roles or departments, either permanently or temporarily? Will you need to cut hours or pay due to the financial impact of the crisis?
Consider these questions ahead of time and be sure to document your decision making so that this can be used to support any processes that result from your planning.
- Review your contracts
Once you have your resourcing plan, you may need to amend employees’ terms and conditions to reflect any changes. For example, asking people to work different shifts, perhaps with a later start and finish time, could involve a contractual change.
A contract can only be changed in line with its existing terms or by agreement, so start by checking what it currently says. Is what you are trying to achieve already permitted under the terms of the contract? If so, the change can be enacted that way. If not, the quickest and easiest way to introduce a change is by negotiation and agreement. It is also the option that is best for maintaining cordial employee relations.
Here, we are not talking about formal consultation – that may come later – but a solely commercial negotiation. If employees are willing to agree to a change, it can be brought about immediately; that is simply something to be agreed between the parties.
Of course, you will need to sell the “benefits” of the change – or potential serious consequences of not agreeing. Ordinarily, it is fairly common practice to “trade” things off (“if you agree to X, we will give you Y”); however, in these difficult economic times, this is unlikely to be an option. Instead, employers will need to stress the serious implications of not bringing about the change(s). For example, might the necessary alternative be redundancies? In most cases, this will be enough to persuade employees to agree.
In the absence of agreement, the best option is to dismiss and re-engage employees on new terms. Unfortunately, this is time consuming as it requires employees to serve notice of up to 12 weeks depending on their length of service.
- Consider whether redundancies are necessary
Despite your best efforts, and the various support mechanisms offered by the government, redundancies may be a reality. Indeed, a recent survey revealed that 43% of employers are planning redundancies once the furlough scheme ends.
The processes for making redundancies vary depending on how many employees are at risk. It is a procedure fraught with risk and could easily occupy an entire article in and of itself; however, some broad principles do apply across the board, including the need to:
- Give adequate advance warning;
- Consult with staff to attempt to resolve the situation and avoid the need for redundancies (usually 10 to 14 days is required, although this could be shorter for more straightforward situations, or longer if a certain number of dismissals are proposed);
- Be fair and reasonable, and follow a proper process;
- Explore alternatives (in particular, during the current crisis, the furlough scheme);
- Consider, discuss and offer suitable alternative employment if available; and
- Make appropriate redundancy and notice payments subject to statutory requirements if no alternative/higher contractual arrangement exists.
When faced with radical uncertainty, remember: control what you can. By following the steps outlined above, and seeking professional advice where necessary, you can ensure a smoother, safer transition, avoid costly mistakes, and minimise any delays to getting your retail business back on track.
Ellis Whittam has created a free Coronavirus Advice Hub to help support employers through their COVID-19 challenges and back to work plans. Here you can access helpful guides on common employment scenarios, expert-created risk assessment templates, and topical webinars, including its COVID-19 live employer Q&A: Reopening Retail.