Leisure sector reopening: considerations for employers

Last updated: 29th June 2020

As the guidance was issued regarding pubs, bars, restaurants and takeaways reopening from 4th July, Senior Associate, Emma Saunders looks at the considerations for employers planning to reopen.

The Guidance confirms that anyone who can work from home should continue to do so.  However, this is unlikely to be an option for the vast majority of hospitality workers.

Where employers decide that workers should attend their place of work, this should be reflected in the relevant risk assessment and communicated to those affected.

Strictly speaking there is a legal duty to consult with staff (or a recognised trade union or elected employee representatives) regarding health and safety matters and clearly, how COVID19 impacts upon the workplace is a matter which would be subject to such consultation.

Any health and safety concerns raised by, or on behalf of, affected individuals should be taken seriously and addressed without delay, to avoid the risk of a complaint to the HSE but more importantly being subject to any health and safety detriment or dismissal claims arising.

If consultation with staff has occurred, then such complaints are less likely and should be easier to deal with.  Where, despite seeking to address an individual’s concerns, they refuse to return to work, employers should take advice before considering disciplinary action, dismissal or sending them home without pay.  The fact that an employer has consulted staff on the health and safety matters would most likely improve their prospects of dealing with such a refusal more robustly.

Extra care must be taken to protect workers who are clinically extremely vulnerable (CEV) and clinically vulnerable (CV), as well as those who live with CEV individuals.  CEV workers have been strongly advised not to work outside their homes until infection rates are low (and so are unlikely to be able to return to work for some time) whereas CV workers have been asked to work from home where possible and to take extra care in observing social distancing.

The Guidance suggests that where CV workers cannot work from home, they should be offered the safest available on-site roles, enabling them to maintain social distancing guidelines.  Where social distancing cannot be maintained, risk assessments should be carried out to determine whether it is safe for such individuals to return to work at all – if not, alternatives (such as continued furlough or paid suspension) may need to be considered.

Employers should also be mindful that individuals falling within the CEV or CV categories are likely to be covered by anti-discrimination legislation, so extra caution is advised – particularly in relation to disabled workers and new or expectant mothers where additional obligations apply.

For those individuals who are returning to work, the implementation of social distancing measures may involve a change in their duties and/or working hours.  Effective communication regarding any such changes will be key.

Whilst minor changes may be agreed on an informal basis, significant changes are likely to require a more formal approach.  Employers should consider whether the terms of each worker’s contract provide sufficient flexibility or whether a variation of contract is necessary, on either temporary or permanent basis.

In the latter case, formal consultation (whether individual or collective) may be required.  Employers should also ensure that any changes they are proposing to make do not have an unjustifiable negative impact on some groups compared with others, for example, those with caring responsibilities or those with religious commitments.

If you would like help with an employee related issue as a result of the guidance please get in touch with our employment team.