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Navigating the ‘new normal’ in manufacturing: Key questions answered

We answer some frequently asked questions, many of which would be impossible to envisage this time last year!

As the Coronavirus Job Retention Scheme tapers down towards its end of October closure, and manufacturing sites across the country begin gradually to re-open and to build capacity, most employers are struggling to some degree to get to grips with the ‘new normal’.

While most manufacturing organisations have risen admirably to the formidable challenges of ensuring production lines and factories are COVID secure, the people-intensive, hands-on nature of manufacturing business inevitably means that the sector may find it especially difficult to adapt.

Below we answer some frequently asked questions, many of which would be impossible to envisage this time last year!

Operational issues

We’ve worked hard to make the workplace COVID secure – but some staff are saying we haven’t done enough and are refusing to return. What shall we do?

Every business, and every employee, is different, so there is no easy ‘one size fits all’ answer to this.

The key piece of legislation is the Health and Safety at Work etc. Act 1974 (HSWA), under which employers must “so far as is reasonably practicable” provide and maintain safe places of work, safe systems of work and adequate facilities for welfare. ‘Perfection’ is not expected, and in any event is difficult to identify in these novel circumstances.

That said, in mid-May, the Government published guidance for working safely during COVID-19, specifically focused on factories and warehouses, setting out what these reasonable steps might look like for manufacturing businesses in a COVID context.

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Employees may be reluctant to return to work for a wide variety of reasons, many of which are likely to be genuine and some of which may be supported by various legal protections. For example, an employee may have a disability or special vulnerability; may have caring responsibilities for a vulnerable person; or may be genuinely anxious about the risks of re-engaging with work. It is best practice to explore these concerns thoroughly, carry out an individual risk assessment and implement any special protective measures identified.

In other cases, however, employees may have no good reason for refusing to return to work, and you may be entitled to take disciplinary action. However, it is important to tread very carefully and seek legal advice before proceeding.

Some staff are refusing to undertake certain tasks which they perceive as less safe. How do I manage this?

Again, this is very fact-sensitive and there is no single easy answer. No matter how extensive your efforts to limit COVID transmission in the workplace, there may be some discreet tasks or phases of production that raise ongoing concerns for staff.

If a particular activity poses problems, for example if social distancing guidelines cannot be followed in full, businesses should consider whether that activity needs to continue for the business to operate and, if so, take all possible mitigating actions to reduce the risk of transmission between their staff;

Examples of ‘mitigating actions’ in the government guidance include keeping the activity time involved as short as possible; using screens or barriers to separate people from each other; using back-to-back or side-to-side working (rather than face-to-face) whenever possible; and using fixed teams or partnering to reduce personal contact.

If employees must work face-to-face for a sustained period with more than a small group of fixed partners, then employers will need to assess whether the activity can safely go ahead. No one is obliged to work in an unsafe work environment.

However, if an employee continually refuses to undertake a task that is ostensibly as safe as possible (and there are no specific personal circumstances or vulnerabilities at play) you may be able to take disciplinary action (with caution, and after seeking legal advice).

One of our employees is pregnant. Can we still require her to come into work in the current climate?

Yes, you can ask a pregnant employee to return to work. However, it is important to remember that employers have a specific statutory duty to protect the health and safety of pregnant women.

An employee who is pregnant may be satisfied that your business has put really robust COVID-secure measures in place and be confident to physically return to work. However, if she is not, this is refusal is likely to be reasonable (given that pregnant women are categorised as vulnerable and currently advised to adhere especially stringently to social distancing measures).

You will need to consider whether there is alternative work available on site that poses reduced risk (e.g. away from the shop-floor) or even consider whether working from home is possible. Of course, in a manufacturing environment, such alternative work may not realistically be available which case, according to health and safety law, the pregnant employee should be suspended with full pay.

What if staff take shortcuts re H&S measures? Can we take disciplinary action?

Yes, you can take disciplinary action against staff who refuse to comply or take shortcuts with health and safety measures. Indeed, in light of your duty of care to keep other members of staff safe, it is important that any breaches of the rules are taken seriously. However, crucially, it is important that any new health and safety measures or expectations are communicated to staff clearly in advance of return to work, or implementation. Such communications should make clear that serious or repeated breach of COVID-safe procedures will be a disciplinary offence. Bear in mind that there may be a short period of adjustment while staff get used to new ways of working, and remember to consider individual circumstances. For example, an employee who has been spotted without a face covering may be medically exempt from wearing one.

Holidays

Many parts of our business are much quieter than usual, although we anticipate that things will pick up towards the end of the year. Can we ask staff to take leave in the next few weeks while there is still limited work to do?

Yes, you can. Some employees may be happy to use holiday while work is quiet (especially if they have recently returned from furlough and have built up an excess of leave). However, others will have insufficient holiday entitlement to do this or may wish to reserve some holiday for later in the year.

You may be able to ‘force’ an employee to take annual leave if you wish, but it is important to check that your contracts of employment allow you to do this. You may need to give the employee a minimum amount of notice (usually twice the length of the proposed period of holiday). So, for example, if you want an employee to take 14-days annual leave, it is likely that you will need to give at least 4 weeks’ notice.

By contrast, we are experiencing localised spikes in post-lockdown activity, and some parts of our business are extremely busy. Can we ask staff not to take some of their holidays and roll them over to next year?

Yes. The government has recently made special provision for this situation.

In normal times, the statutory element of annual leave that derives from EU law (20 days) must be taken in the leave year in which it is due, otherwise it is lost (subject to certain exceptions – e.g. sick leave, maternity leave).

New regulations relax the carry-over rules so that the employee “shall be entitled to carry forward” EU law element of annual leave (20 days) for the two leave years following the year in which is due, if it was “not reasonably practicable’ for them to take it due to COVID reasons.  These reasons include “the effects of coronavirus (including on the worker, the employer or the wider economy or society)". So, if you are exceptionally busy due to the economic ups and downs of COVID, especially (but not exclusively) if your business serves the COVID response or any key sectors such as health-care, you can ask staff to roll-over statutory annual leave.

Bear in mind though that it is likely to be a breach of the Working Time Regulations to force an employee to roll-over these 20 days if they do not wish to do so. Agreement is required and should be noted wherever possible.

The additional 1.6 weeks/8 days leave available under UK law, and any additional contractual leave you offer, may be also be rolled over into your next leave year (and potentially further into subsequent leave years) if a relevant agreement (e.g. contract of employment or holiday policy) allows for this.

Post-travel quarantine

A number of employees are currently in post-travel quarantine, or will shortly need to quarantine on return from holiday, leaving us short-handed. Can we ask an employee not to observe quarantine and come into work?

No. The 14-day post-travel quarantine period is a legal requirement, introduced by The Health Protection (Coronavirus, International Travel) (England) Regulations 2020 or The Health Protection (Coronavirus, International Travel) (Scotland) Regulations 2020 If an eligible individual fails to self-isolate in breach of this requirement, they commit a criminal offence and will be liable to pay a fine. Therefore, you must not require an employee to attend the workplace during the quarantine period (or allow them to come into work when you know they should be in quarantine).

An employee has booked a holiday abroad, knowing that his destination is on the isolation list. Can we stop them from going? Do we have to pay them for quarantine when they get back?

It is not currently clear how long post-travel quarantine measures will remain in place, and the application of the rules to specific destinations may change. So, it may not be necessary to instruct employees to cancel foreign travel on an ongoing basis.

However, in any event, it is unlikely to be reasonable to dictate to an employee what they are able to do during their non-working leisure time.

You may be able to cancel an employee’s pre-booked annual leave. However, it is important to make sure that your contracts of employment allow you to do this, and you may need to give the employee a minimum amount of notice of the cancellation (usually the same amount of notice of the length of holiday to be cancelled). So, to cancel a two-week holiday, it is likely that you will need to give at least two weeks’ notice.

Of course however, cancelling an employee’s foreign travel is likely to cause considerable financial loss and disappointment to the individual. From an employee relations perspective, it would be preferable to focus wherever possible on agreeing a mutually acceptable arrangement to cover the post-travel quarantine period.

Where an employee has knowingly booked a holiday to a country on an isolation list, you might wish to consider requiring them to take the 14-day quarantine period as extra annual leave, or unpaid leave, to deter other employees from booking any last-minute cheap deals.

It is important to consider individual circumstances though, and you may wish to relax this approach and offer special paid leave where an employee has been forced to travel (e.g. due to a family emergency) or has been genuinely ‘caught out’ by changing quarantine rules.

Find out more information about post-travel quarantine.

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