Nick Thorpe and Hannah Disselbeck: Should employers be preparing now for further waves of the Covid-19 virus?

Things are ostensibly returning to normal during the Covid-19 pandemic. Recent glorious sunshine has brought many of us out and about, and the sociable smell of barbeques pervades our towns and cities again. Offices and worksites are raring to bring employees back to their desks.

And yet, all is perhaps not rosy in the garden. ‘R’, the number of individuals each infected person will infect, on average, in the UK remains stubbornly between 0.7% and 0.9%. If it climbs above 1%, the rate of infections will grow exponentially and, if that growth is sustained, we will see a second wave of infection. In the absence of a treatment or vaccine, experts suggest that a second wave is likely, with our risk increasing in the autumn and winter months, though, in densely populated areas such as London, that second wave may come much sooner.

Politically, a further period of lockdown may be unpopular and difficult to enforce. While we are sceptical that this can be avoided if there is a second wave of infection on the scale of this first wave, reports suggest that, for as long as it can, the government will seek to control the outbreak through more targeted measures, such as contact-tracing and targeted closures.

What does that mean for businesses which are hoping to bring workforces back into offices?

First, while we appreciate that employers are keen to return to normal and to bring teams back together in offices quickly, there are still good reasons to keep employees working from home wherever possible.

From a health and safety perspective, bringing employees who are able to work remotely back into an office environment remains contrary to current government guidance, and it may be difficult to justify exposing employees on commutes and to colleagues. The legal risks of failing to do everything reasonably practicable to protect employees, including, if possible, asking them to continue to work from home, are potentially very significant if an employee becomes seriously ill. From a commercial point of view, employers should consider the risks of targeted office or worksite closures in the event that a case of Coronavirus is identified.

Workplace closures are disruptive and are likely to cause a significant short-term drop in productivity. Where measures are targeted at a business, rather than affecting that industry as a whole, this may put employers at a competitive disadvantage at a time when most businesses can least afford it.

Many employers are concerned about maintaining workforce productivity, which is driving efforts to bring people back into offices quickly. Rather than letting these concerns drive quick-fire decisions that may come at a high cost in the longer term, we suggest that businesses give careful thought to designing creative incentive structures that will support productivity and high performance in circumstances where individuals are being managed remotely. This will give decision-makers the space to decide what is best for the business and employees independently of productivity concerns, and may give a business a competitive edge in the event that a second lockdown proves unavoidable.

Nick Thorpe and Hannah Disselbeck are employment lawyers at Fieldfisher.

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