The carmaker, one of the last to shut down production in March, says it will have robust safety measures in place to protect workers.
This announcement looks like a glimmer of hope for employers in lockdown and in limbo for over a month.
Could it already be possible to take steps to reopen or staff the workplace? For most businesses, the answer would probably be ‘not yet’. Each employer will have to make their own judgement call, subject to government regulations and recommendations.
Here are some key considerations for HR professionals at businesses keen to bring staff back in the next few weeks.
Duties and judgements
Employers have a duty under the Health and Safety at Work Act 1974 to provide a safe working environment and ensure health, safety and welfare at work. However, claims under this provision are likely to be hard for workers to prove in relation to COVID-19.
More likely to be directly relevant and riskier for employers are rights under the Employment Rights Act 1996 sections 44 and 100. These sections offer protections for employees who have a reasonable belief in “serious and imminent danger” and decide to leave or not to attend their workplace, or take steps to avert the danger. If such an employee is dismissed this will constitute an unfair dismissal.
Risk assessments are required specifically for young people and pregnant women, and it will also be important to think about other staff who may have a heightened risk.
It is easy to imagine situations where failing to take into account a specific employee’s attributes, for example age or disability, in requiring a return could amount to indirect discrimination.
Other considerations include what to do with workers who cannot or are not willing to return. A light touch, flexibility and pragmatic legal advice are likely to be required.
A starting point
Before staff do return, practical measures to meet the government guidelines and address any other obvious risks will need to be in place. As a starting point:
· Minimise interaction between workers. Consider whether smaller teams can be kept together rather than mixing workers up. Consider too whether breaks, lunches and access to shared areas such as changing facilities can be staggered.
· Step up hygiene measures. Handwashing facilities and sanitisers should be provided and signposted and workers should be encouraged to use them frequently. Increase the frequency of cleaning, with particular attention to surfaces that are often touched.
· If possible, increase ventilation and avoid enclosed spaces. For example, consider closing lifts to those who do not require them, and limiting them to one person at a time.
· Remind staff that they should not come to work if they are feeling unwell or anyone in their household is self-isolating. Consider new signage at entry points.
Most UK businesses will need to rely on their own assessment of which staff to bring back and how to manage them on their return. For many, including Bentley, there will be an initial return of a minimal number of workers in core roles that must be done on site.
The factory at Crewe however could be seen as an exception. It is a modern facility on a large site, and its managers will find it easier to implement social-distancing and hygiene guidance. Other workplaces are going to have to wait. There will be a right time to bring staff back, hopefully soon.
Allison Crabtree is a solicitor at Thomas Mansfield
