By Ben Willmott, Head of Public Policy at CIPD.

As UK businesses wait to see the UK Government’s employer guidance on working safely when lockdown measures are eased, they should also prepare for the biggest employment relations challenge they have ever faced.   

The guidance will aim to set out how organisations can gradually and safely return employees to the workplace after lockdown and is likely to cover a range of important issues such as social distancing, risk assessment, hygiene and the use of PPE. It is also likely to emphasise the need for anyone who can work from home to continue to do so and to highlight the use of staggered shifts to minimise time spent together in the workplace or commuting.  

However, what it can’t do is help employers navigate some of the really difficult ‘people’ issues that will arise as soon as more employees start to come back to the workplace.   

Under health and safety legislation and common law, employers have a fundamental duty of care for all staff - in terms of both their physical and mental health.  Meeting this obligation will frequently be challenging given the valid concerns workers will have about their health and whether their employer is meeting the new guidelines – and how. Many employees will also be very worried about the health of family members in their household, particularly if they have pre-existing health conditions. As people can carry Covid-19 without symptoms, the concern about passing on the virus to vulnerable loved ones will be very real.  

These concerns will raise levels of stress, which are already elevated in many people and if not managed supportively will lead to more people suffering from anxiety and depression and being signed off work sick. 

As well as the duty of care, another key principle at the heart of the employment relationship is the implied duty of mutual trust and confidence between employer and worker. This is neatly summed up in the case of Woods v WM Car Services (1981) where, the Employment Appeal Tribunal stated that: 

“It is clearly established that there is implied in a contract of employment a term that employers will not, without reasonable and proper cause [my emphasis], conduct themselves in a manner calculated or [again my emphasis] likely to destroy or seriously damage the relationship of confidence or trust between employer and employee”.  

This term essentially requires both parties to act reasonably and in good faith in how they meet their respective obligations, for example, to provide work and to give and obey reasonable instructions.  

The difficulty employers face is that this term is subjective and is only really tested if there is a dispute that reaches employment tribunal. We don’t know enough yet about this novel virus, but we do know that it affects people in very different ways depending on the sector they work in, the nature of their job, domestic circumstances,  and caring responsibilities. Employers must also take account of people’s personal characteristics such as gender, age, ethnicity,health and ensure everyone is treated fairly under equality law with no discrimination, either directly or indirectly. 

Together, these factors mean organisations will have to put in place the right HR policies and procedures to guide managers to act reasonably and consistently and to be flexible wherever possible. However, for these policies to ‘live’, organisations must have, or develop a culture that puts people first. Senior managers will be the role models of organisational values such as respect and trust, actively engaging with and listening to staff.  

Communication and meaningful consultation with staff will be more important than ever because of the uncertainty about how quickly the lockdown will unwind. And it will remain important as we track the course of the virus in the months ahead.  

Training and supporting line managers to treat people fairly and with consideration will be key to how organisations manage and support employees. They will likely have to continue to manage many more people remotely or working flexibility. An ability to demonstrate empathy, to listen and to offer flexibility and support will be critical to trust-based employment relationships, which support not only people’s wellbeing but also their motivation and productivity as the nation gets back to work.