How should a franchisee approach the difficult and often thorny issue of ‘ordering’ employees back to work? Andrew Reid of law firm Stevens-Bolton explains the nuts and bolts.
On July 19th, all restrictions relating to Covid-19 in England were removed. This included the Government’s advice to ‘work from home if you can’. However, despite the lifting of restrictions, there was very little prospect of every employee rushing back to their offices immediately. Many had voiced their concerns about ‘returning to normal’ so quickly, and companies took the decision to limit the number of employees allowed back in their offices at any one time.
Official Government guidance published on July 14th recommended a ‘gradual return to work’ rather than a stampede. So how does this affect employers and franchisees with regards to demands they make on their workers? The final decision is ultimately up to the individual employer. Let’s face it, guidance on managing workforces during the pandemic has, at best, been ambiguous. Official advice on how to deal with the issue of bringing employees back to the workplace has been largely non-existent.
Franchisees and employers, in general, will need to ensure that the necessary precautions have been taken care of, to make staff members feel safe. But if the opinion among the workforce is split, then decision-making becomes more difficult for bosses. This could be especially compromised in the world of franchising, depending on the agreement signed by the franchisee.
Contractual obligations may require businesses to be adequately staffed, and there may also be performance targets to be met. So when is a franchisee at risk of being in breach of a franchise agreement? Under this type of pressure, it is all too easy for a franchisee to make unreasonable demands on their workforce.
Government guidance
Among the fairly generic guidance outlined by the Government are tips on undertaking regular health and safety assessments, cleaning more often, improving ventilation and reducing contact between workers. This guidance also mentioned how to deal with Covid outbreaks in the workplace.
However, other than a short section on ‘Returning to work’, there was very little concrete advice for either employers or franchisees. Extremely general suggestions, such as having ‘consistent and regular communication’ and ‘engaging with workers,’ was included in the document but there was nothing to help an employer understand their legal position. The guidance on returning to work could hardly be used in a court of law, or at an employment tribunal. It was completely lacking in specifics.
Practical approach
Ultimately, it appears that individual franchisees must decide their own policy for ensuring a gradual return to work. The Government also suggested that franchisors should provide some clear guidance on this issue.
In reality, bosses need to take more of a holistic approach, and consider the physical and mental health of their workers – which is likely to differ from person to person. This approach must obviously be balanced with the needs of the business to trade profitably.
This is an opportunity for franchise systems to be viewed as good corporate citizens. Such a culture will undoubtedly benefit a company long term when it comes to recruitment of new franchisees. Clear guidelines, sympathetically drawn, can go a long way to achieving consistency across the network.
Reluctance to return due to Covid-19
Despite the UK’s largely successful vaccination programme, many workers will still be classed as clinically vulnerable, while others will be living with vulnerable family members. Once again, there is very little guidance on how employers should manage this particular group, other than a general reminder of their responsibility to ‘protect employees and others from risks to their health and safety.’
While there is no legal obligation to take specific steps, or implement certain measures, franchisees should think very carefully before imposing any requirements on vulnerable individuals. Although a return to the workplace is desirable, franchisees should consult with vulnerable members of staff. They also need to explain what measures are being introduced to protect them.
Franchisees should exercise extreme caution before taking any action against employees who refuse to return to work due to their concerns over health and safety. In recent months, several workers have successfully won their cases for unfair dismissal under 100(1)(e) of the Employment Rights Act of 1996. The courts agreed that, by returning to work, it would have placed them in ‘serous and imminent danger’ of contracting the Covid-19 virus.
Reluctance for other reasons
Employees, who prefer to work from home due to lifestyle choices, or childcare arrangements, are in a stronger legal position than they were before the pandemic. Franchisees should always consider an individual’s personal circumstances, and they may be required to make adjustments because of a staff member’s disability.
Those with 26 weeks of service are entitled to submit a flexible working request. And bosses should be aware that there are only eight reasons for rejecting such a plea. One of these is to prove that any change to working practices would have a detrimental impact on performance. If an employee has performed satisfactorily for more than a year, then resisting such a request may become more difficult for the franchisee.
Conclusion
Whatever the reason for a worker’s reluctance to return to the office, the impact on staff morale should always be paramount for franchisees. At the very least, franchisees should try to communicate their plans as early as possible, while taking into account every worker’s individual situation.
Phased returns may be one route forward. Franchisees and employers could vary hours of work to avoid peak congestion times on the rail network or on the road. They could also introduce a flexible timetable listing days when their employees can work from home and those when they need to travel to the office. This can be done to limit the number of people on the premises at any one time. With Covid not yet conquered, ‘normal’ remains a long way off.
