April 19, 2021

Volume XI, Number 109

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April 16, 2021

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New Acas guidance on the return to the workplace – the importance of talking back to your workers (UK)

In line with the impending movement back to the physical workplace comes some updated Acas guidance around consultation with your workforce about preventing the Coronavirus in the process.

The line between communication and consultation in the guidance is not always clearly marked, but that should not be an issue in view of Acas’s injunction that talking should be accompanied by listening, a clear and unprovoked strike at dinner parties right across North London. It also says that “you [and your staff] should always agree any actions together”, which is perhaps overstating the burden of consultation somewhat – that is for the employer to listen in good faith and with an open mind, but without any obligation to agree, nor any prohibition on taking steps which have not been agreed.

Consultation with your workers should be “culturally competent”, says Acas, i.e. take into account each employee’s background, culture, beliefs and specific circumstances. This is expanded on to some extent by a “consensus statement” issued jointly by Public Health England, the HSE and the Faculty of Occupational Medicine in August 2020 and updated in March this year. This concerns the mitigation of Covid risks in occupational settings with a focus on ethnic minority groups. The statement begins somewhat tentatively for such a heavyweight trio, recommending “with moderate confidence” that all individuals, including those from ethnic minority groups, should have the same approach to risk management in the workplace. Employer communications around the steps which you have taken and the measures which employees and workers in turn need to take to combat the virus must be accessible to all your workers in medium, language, format and imagery, but beyond that there is no recommendation of any actual different treatment in terms of workplace risk assessments or the physical measures actually taken, despite the “known disproportionate impact of Covid on ethnic minority groups”. [This sounds harsh but makes obvious sense – first, if you are already obliged to take all reasonably practicable steps to reduce risk to its lowest practicable level, then an obligation to do still more can only move you into the realm of things which are not reasonably practicable. Second, the more favourable treatment of ethnic minority staff, however well-intentioned having regard to that disparity, would clearly be unlawful discrimination against non-minority employees].

For workers who are vulnerable or live with someone who is, the recommendation again is to talk, potentially to include offering where possible work where they can best socially distance within the office or WFH to a greater or lesser extent. These accommodations should be offered and not imposed. Being remote from others may be (or be alleged to be) a disadvantage in terms of re-integration, access to development or work opportunities, etc., and making the unilateral assumption that the vulnerable employee will want it could therefore be discriminatory. There is no obligation on the employer to offer or accept such an arrangement where any level of disruption or inefficiency implicit in it would justify refusing it either under the flexible working regime or (if the employee is disabled) as an unreasonable adjustment.

For all workers, but the vulnerable in particular, Acas stresses the importance of reassurance around the measures you have taken in the physical workplace. This has two main functions. First, it helps bring back those who may be anxious about such things, and second, it reduces the scope for any worker to argue that his belief that the workplace would put him at serious and imminent risk is reasonable for ERA ss44 or 100 detriment or unfair dismissal purposes. All such communications should expressly invite worker suggestions as to what more could reasonably be done by them, their line manager and the company as a whole. While that may or may not lead to any actionable responses, it will help show that you do not claim any monopoly of views or good ideas on the point.

The guidance then takes a quick canter through the usual physical social-distancing precautions which the employer should be seen to consider for both workers and visitors – floor-markers, screens, removing some furniture, keeping windows and doors open (but not fire doors), limiting movement within the premises – and then also reviews some organisational suggestions by way of the development of “work bubbles”, staggered hours to minimise overlaps, etc. Nothing very revolutionary, but the obvious point for employers is that you must be seen to consider these things and where relevant, review them with your staff or their representatives.

Last, consultation means involvement (if you want it) and involvement leaves much less space for the development of employee issues ranging from the merely unhelpful (a sense of detachment or “mushroom syndrome”) to the actively dangerous (isolation, depression, anxiety). I would not go so far as the Acas suggestion that you should “talk openly with workers about the possibility of [their] becoming stressed or mentally unwell” as that sounds perilously close to an invitation or an acknowledgement that grounds for such a complaint could exist. However, there is every benefit in expressly ensuring as part of your general RTW communications with staff that if they are suffering something of the sort, they know where to go, so to speak.

This is the 31st March 2021 guidance. It is a measure of how quickly Acas thinks things may move one way of the other on this that it is next due for review at the end of this month, scarcely 3 weeks from now.

 

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© Copyright 2021 Squire Patton Boggs (US) LLPNational Law Review, Volume XI, Number 97
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About this Author

David Whincup Employment Attorney Squire Patton Boggs Law Firm
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Following 10 years at a Magic Circle firm, David has been head of our London Labor & Employment Practice since 1994.

His expertise gained from over 30 years as a specialist employment law practitioner cover a wide variety of employment-related issues, including individual and team recruitment issues, policy and contract drafting, disciplinary and grievance procedures, individual and collective redundancies, the defence of employee discrimination and dismissal claims and other litigation, whistleblowing, employee health, data protection and matters surrounding confidentiality and...

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