Bargaining in support of staff still working in their normal workplace Last updated: 8 April 2020

COVID-19 pandemic

Bargaining in support

of staff still working at

their normal workplace

Bargaining in support of staff still working in their normal workplace Last updated: 16 April 2020 1

UNISON will seek to update this guidance as developments unfold and applies

across the UK. If negotiators have any comments on this guidance or any

experience of the scheme that could be usefully incorporated in the guidance, please

contact Bargaining Support at bsg@unison.co.uk

COVID-19 pandemic

Bargaining in support of staff still

working at their normal workplace

Introduction

This short guide is intended to assist negotiators when supporting staff required to

continue to work at their normal workplace during the COVID-19 pandemic. This

guide highlights best practice in health and safety and terms and conditions for this

group of workers.

The government has advised “stay at home, protect the NHS, save lives”. Employers

should not expect workers to travel to work and continue working at their normal

workplace unless it is absolutely not possible or if they are a critical worker.

The simplest way of preventing transmission of COVID-19 is to completely eliminate

any work-related travel and social contact, and this can best be achieved by

employers instructing and facilitating workers to work from home.

More guidance on home working

www.unison.org.uk/content/uploads/2020/04/Homeworking-model-policy-and-

bargaining-guidance-April-2020.pdf

Bargaining in support of staff still working in their normal workplace Last updated: 16 April 2020 2

The guidance is structured as follows:

Supporting ‘critical’ or ‘key’ workers and other staff who cannot work from home

............................................................................................................................... 3

Who are the ‘critical’ and ‘key’ workers? ............................................................... 3

How can these workers be supported to remain healthy and safe? ..................... 4

What particular health and safety measures are UNISON calling for? ................. 5

What about ‘self-isolating’ workers, ‘shielded’ workers, pregnant workers and

other workers at particular risk should they contract COVID-19? ......................... 7

What about staff with childcare or vulnerable adult care concerns? ..................... 8

What about workers who are redeployed i.e. asked to take on different roles than

normal during the COVID-19 pandemic? .............................................................. 9

What about other workplace activity started before the COVID-19 pandemic such

as restructuring, redundancy consultations, TUPE transfers, non-urgent

disciplinary procedures? ...................................................................................... 10

Bargaining checklist ............................................................................................. 11

Bargaining in support of staff still working in their normal workplace Last updated: 16 April 2020 3

Supporting ‘critical’ or ‘key’ workers and other staff who

cannot work from home

Who are the ‘critical’ and ‘key’ workers?

The government have identified various workers such as those working in

healthcare, social care, local government, key public services, utilities and transport

“whose work is critical to the COVID-19 response.”

More guidance for healthcare workers www.unison.org.uk/at-work/health-

care/big-issues/covid-19-advice-health-workers

More guidance for social care workers www.unison.org.uk/care-workers-your-

rights/coronavirus-advice-social-care-workers

More guidance for local government workers www.unison.org.uk/at-work/local-

government/coronavirus-guidance-local-government-workers

More guidance for higher education workers www.unison.org.uk/at-

work/education-services/key-issues/covid-19-advice-staff

The government list also confirms that educational provision will be available for the

children of parents who are critical workers. The workers providing this educational

provision are also obviously critical workers themselves.

Some schools have indicated that they will also be open during what would normally

be the Easter holidays in order to provide support for the children of critical workers.

Some have also indicated that they intend to open seven days a week.

More guidance for education workers www.unison.org.uk/at-work/education-

services/key-issues/covid-19-closures

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How can these workers be supported to remain healthy and safe?

Health and safety issues are of critical importance in supporting workers. Branches

and workplace reps should be reminding employers of their continuing duty of care

to employees, even in these difficult and unprecedented times. Now, perhaps more

than ever, employers should not be allowed to cut corners on safety measures.

The starting point for the employer should be the risk assessment, prioritising

measures that eliminate or at least minimise the risk of the hazard. As the main

hazard is contracting COVID-19, whilst the risk cannot be totally eliminated,

measures to minimise the risk should include social distancing and protections such

as handwashing facilities, hand sanitisers and personal protective equipment.

Some measures to prevent the spread of COVID-19 may, in themselves, create

additional hazards. These include homeworking, isolation and other stress or mental

health problems, staff being re-assigned to different roles or duties, use of

volunteers, use of unfamiliar equipment, and working in different buildings and

facilities.

To assist with risk assessments, guidance on infection prevention and control for

COVID-19 has been issued jointly by the Department of Health and Social Care

(DHSC), Public Health Wales (PHW), Public Health Agency (PHA) Northern Ireland,

Health Protection Scotland (HPS), Public Health England and NHS England.

Compliance with this guidance would help employers to demonstrate they have

complied with their legally enforceable health & safety duties.

However, each workplace provides its own unique challenges, which employers

must respond to in their risk assessments. For example, although the government

may advise that for most workplaces outside the health & social care sector,

personal protective equipment (PPE) is not necessary, there may be circumstances,

such as when social distancing is difficult to maintain, when it is.

As the Health & Safety Executive, TUC and CBI made clear in a joint statement,

failure to comply with public health guidance and do everything reasonably

practicable to keep workers safe from COVID-19 may result in employers being hit

with enforcement notices and potential closure.

Specific health & safety advice with regard to COVID-19

www.unison.org.uk/coronavirus-rights-work

Government guidance on infection prevention and control for COVID-19

www.gov.uk/government/publications/wuhan-novel-coronavirus-infection-

prevention-and-control

More guidance on health and safety risk assessments www.unison.org.uk/get-

help/knowledge/health-and-safety/risk-assessment

and www.unison.org.uk/content/uploads/2014/07/On-line-Catalogue221002.pdf

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What particular health and safety measures are UNISON calling

for?

As well as specific measures for particular workplaces, UNISON branches and

workplace reps should be asking employers to:

• conduct health and safety risk assessments

• allow home working (where the role permits) for staff to better achieve the

recommended social distancing

• ensure all reasonable social distancing measures are in place, including

arranging rotas and schedules to reduce the number of staff required on site

• ensure that measures are in place to protect those staff most at risk either

because of age, or they are disabled, have an underlying health condition or are

pregnant. This could include change of duties, additional social distancing

measures or instructing them to stay at home even when it is not possible to do

their job from home

• if staff are working with people who may be showing COVID-19 symptoms,

ensure appropriate isolation procedures are in place, that contact with those

experiencing COVID-19 is limited, as far as is reasonably practicable, to those

whose jobs require it and to those who have been provided with the required

personal protective equipment (PPE)

• provide protective equipment and ensure workplaces are fully stocked with all

necessary cleaning products

• ensure adequate supplies of thermometers to monitor the health of staff (and

service users where relevant) and of hand-washing facilities and alcohol-based

hand sanitisers

• reviewing the provision of tissues and sealed bins for disposal, along with the

regularity of waste collection

• considering the intensification of cleaning methods and its regularity

• ensuring cleaning staff are provided with disposable gloves and aprons, utilise

disposable cloths and mop heads, and deploy both detergent-based and steam

cleaning as appropriate

• staggering staff breaks so that safe distances can be kept in rest areas

• keeping windows and doors open where it is safe to do so

• minimising face-to-face contact through restricted travel and meetings

• keeping in touch with their local public health team over health & safety issues.

More guidance on social distancing www.unison.org.uk/coronavirus-rights-

work/social-distancing-workplace

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If the physical distance between people cannot be maintained, try to negotiate the

use of other measures. For example:

• some refuse firms have reduced the number of people permitted in the cab of a

refuse vehicle to two, allowing staff to maintain a safer distance

• agreeing that staff undertake continuing professional development (CPD) plans at

home, helpful for staff whose role cannot be done at home

• limiting close contact with others to those who have been provided with the

appropriate training and personal protective equipment (PPE).

More guidance on personal protective equipment (PPE)

www.unison.org.uk/coronavirus-rights-work/personal-protective-equipment-

coronavirus

It is also important that the employer communicates to all staff a clear procedure

should they experience any of the symptoms of COVID-19.

This should include:

• publicising what COVID-19 symptoms are as advised by the government and

the NHS

• who to notify at work

• an immediate need to go home and to self-isolate in line with government

advice

• who to contact if their symptoms worsen

• that any proof required should be limited to the isolation notes that can be

obtained from NHS 111 https://111.nhs.uk/isolation-note/

In recognition of the unprecedented scale of the COVID-19 pandemic, it’s also

important to get the employer to agree to discount any related absence from triggers

for action specified in any attendance management, disciplinary, redundancy or

capability policy.

More guidance on sickness absence during the COVID-19 pandemic

www.unison.org.uk/content/uploads/2020/04/Covid-19-Pandemic-Bargaining-

over-Sickness-Absence-v3-1.pdf

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What about ‘self-isolating’ workers, ‘shielded’ workers, pregnant

workers and other workers at particular risk should they contract

COVID-19?

For some people, self-isolating at home is essential under government guidance

(such as those who live in a household where another member has displayed

symptoms of COVID-19 and those who need to follow shielding measures because

they have a very high risk of severe illness from COVID-19 due to an underlying

health condition).

The government has also issued ‘strong advice’ that pregnant women should work

from home if possible. In addition, the government advised pregnant women to be

particularly stringent about ‘social distancing’. If it is not possible for a pregnant

worker to work from home, it is essential that the employer undertakes a risk

assessment of each individual pregnant worker’s working environment and the

specific role they have.

Staff who are self-isolating but cannot do their work at home, should, by law at least

receive statutory sick pay. Employers may also provide contractual sick pay. Staff

who are undertaking shielding measures can be furloughed under the government’s

Job Retention Scheme.

Try and negotiate with employers to instead continue to pay normal salaries if

feasible and ‘medically exclude’ self-isolating staff, as a way of encouraging

workers to do the right thing and follow government guidance on self-isolation, and

not infect other workers.

Under the NJC ‘Green Book’ terms and conditions used in local government and

many schools there is a clause:

“An employee who is prevented from attending work because of contact with

infectious disease shall be entitled to receive normal pay. The period of absence on

this account shall not be reckoned against the employee’s entitlements under this

scheme.”

This would be the ideal option to reach for negotiations, particularly for self-isolating

staff who cannot be furloughed.

Bargaining support guidance for reps and branches during the COVID-19

pandemic www.unison.org.uk/bargaining-guides

More guidance on furloughing and the Job Retention Scheme

www.unison.org.uk/content/uploads/2020/04/Job-Retention-Scheme-QA.pdf

www.unison.org.uk/content/uploads/2020/04/Job-Retention-Scheme-

Bargaining-Guidance-3.pdf

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What about staff with childcare or vulnerable adult care concerns?

Workers who are not ‘critical’ or ‘key’ workers under the government list will not be

able to access educational provision for their children.

However, they may be faced with the dilemma of how to safely care for their children

at home, whether during the school term or during the school holidays.

The government advice includes:

1. Parents should not rely for childcare upon those who are advised to be in the

stringent social distancing category such as grandparents, friends, or family

members with underlying conditions.

2. Parents must also do everything they can to ensure children are not mixing

socially in a way which can continue to spread the virus. They must observe the

same social distancing principles as adults.

So normal options for childcare such as at grandparents or friends may not be

possible.

Some workers may also be faced with the dilemma of having to care for vulnerable

elderly adults, including those that are ‘shielding,’ but not be able to work from home.

It is important that in such situations the employer is sympathetic. Employers should

be encouraged to explore the possibility of homeworking for these employees, or

redeploying them to a job they can undertake from home if the worker agrees.

However this may not be feasible and it will be important to try to negotiate the

option of furloughing the worker if they are not able to work from home and fulfil their

caring responsibilities safely, rather than forcing staff to use their annual leave or

take unpaid leave, and before the possibility of redundancies is explored.

Employers can furlough staff under the government’s Job Retention Scheme. Self-

employed workers may be able to apply for a grant under the government’s Self-

employment Income Support Scheme.

More guidance on furloughing and the Job Retention Scheme

www.unison.org.uk/content/uploads/2020/04/Job-Retention-Scheme-QA.pdf

www.unison.org.uk/content/uploads/2020/04/Job-Retention-Scheme-

Bargaining-Guidance-3.pdf

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What about workers who are redeployed i.e. asked to take on

different roles than normal during the COVID-19 pandemic?

It’s important that workers are not forced to take on different roles in order to keep

their job. Agreement should be on a voluntary basis and with proper support

provided by the employer such as additional training.

Any redeployment is likely to mean a variation in the employment contract unless

there is a ‘flexibility clause’ in the worker’s contract that allows a change to the job

and duties or work location. This would need to be specified and is different to a

clause stating “any other duties commensurate with the grade/role.”

It would be essential for the employer to get the individual agreement of the affected

worker to any redeployment following a full discussion on the implications. The

employer should confirm any changes made to the contract in writing, including the

temporary nature of the redeployment during the COVID-19 pandemic. There is

always an expectation for the employer to act ‘reasonably’ including the

consideration of appropriate alternative work within the particular circumstances of

the worker. An employee can appear to agree to the change in contract by

performing the changed duties.

If there is any concern about a proposed redeployment, the branch should

contact their regional organiser (www.unison.org.uk/regions) and seek legal

advice if appropriate.

Workers should be compensated for all reasonable additional costs incurred during

the redeployment, such as for additional travel, meal allowances and

accommodation.

Workers should suffer no financial detriment and should continue to be paid at their

usual contracted rate. If anything, there may be a need to review overtime

payments, bonuses etc so that the employee’s willingness to work flexibly in difficult

circumstances, possibly taking on additional or new responsibilities can be

appropriately rewarded.

Where employees are temporarily undertaking roles that are paid at a higher rate

than their usual contracted rate, they should receive the higher rate of pay for the

duration of the assignment.

What about secondments?

It’s important that staff voluntarily agree on the secondment and not be forced to

undertake it. Ideally this will be time-limited or will at least state when the situation

will be periodically reviewed.

As far as the worker is concerned, they still have the same employer. The host

organisation may reimburse costs to the normal employer and this should be an

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agreement between the organisations, but the status of the worker will not change,

nor should they see any changes to when they are paid and by whom.

It is also important that the normal employer guarantees to reinstate the worker to

their former job, with the pay and benefits that they would have received had the

secondment not taken place.

The employer should also compensate the worker for all reasonable additional costs

incurred during the secondment, such as for additional travel, meal allowances and

accommodation.

What about other workplace activity started before the COVID-19

pandemic such as restructuring, redundancy consultations, TUPE

transfers, non-urgent disciplinary procedures?

We are in a middle of an unprecedented global health emergency and nothing

should detract from providing the critical work needed to respond to the pandemic.

Employers should be persuaded to put on hold all unnecessary activity that could

detract from focusing on the critical work.

For example, the NHS employers and trade unions agreed on a statement,

recognising that partnership working in organisations may need to be streamlined

and that organisational change, employment processes and industrial disputes put

on hold. This includes “disciplinary and other employment procedures (for example,

sickness and capability triggers) while the crisis lasts, except where the employee

requests proceeding as it would otherwise cause additional anxiety, or where they

are very serious or urgent.”

More guidance can be found in the model workplace agreement for the

duration of the COVID-19 pandemic

www.unison.org.uk/content/uploads/2020/03/Model-Workforce-Policy-for-

Duration-of-Covid-19-Crisis-Final.docx

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Bargaining checklist

More guidance for UNISON reps on COVID-19 www.unison.org.uk/coronavirus-

rights-work/covid-19-advice-reps

and www.unison.org.uk/bargaining-guides

Is it absolutely impossible to do the work from home or are the workers identified

by the government as ‘critical’ or ‘key’ workers? Try to persuade employers to

explore different ways of working that may allow some workers to work from

home, perhaps with loaned IT and other equipment.

If it’s essential for workers to continue work at their normal workplace, has the

employer allowed a more flexible start and finish time so as to avoid busier travel

times?

If it’s essential for workers to continue work at their normal workplace, has the

employer properly considered all health and safety risks? Have they undertaken

COVID-19 risk assessments? Have they put in place measures to eliminate or

minimise risks including social distancing and isolation measures as required,

handwashing and alcohol-based hand sanitisers, and use of personal protective

equipment (PPE) where appropriate?

Has the employer made special provision for disabled staff and others with

underlying health conditions? Have they considered the medical exclusion of

such staff on full pay if they are not able to work from home? If this is not feasible

have they considered furloughing these staff members?

Has the employer made special provision for pregnant workers and undertaken

individual risk assessments? Have they considered the medical exclusion of

such staff on full pay if they are not able to work from home? If this is not feasible

have they considered furloughing these staff members?

Have staff who use PPE been properly trained in their usage?

Has the employer a clear procedure in place should any staff members

experience symptoms of COVID-19?

Has the employer considered the furloughing of staff who have unexpected

caring responsibilities as a result of government action, if they are not able to

work from home?

Has the employer considered the medical exclusion of staff on full pay who have

to self-isolate because they have contracted COVID-19 or a member of their

household has contracted COVID-19, if they are still well but not able to work

from home?

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If the employer will not continue to pay self-isolating workers, will they agree to

pay contractual sick pay and not just the statutory sick pay that is legally due to

such workers?

Where staff cannot work from home, is the employer also considering

redeployment? It’s important that individual workers agree to any such

redeployment and they are not forced to take on work for which they are not

trained or do not feel is suitable or reasonable.

Has the employer agreed to regular as well as ad hoc meetings (by telephone or

video) with union reps to discuss ongoing COVID-19 issues and

communications?