The return to work – what design businesses should know about the law

The two-month period of government-official isolation has been a challenge felt across the industry. It has prompted new ways of communicating; inspired countless creative projects; and shown just how willing designers are to use their craft for good – but it has also come with significant financial stresses and job worries.

Eight weeks into lockdown, however, and the possibility of returning to the studio is on the horizon.

For all design businesses, the decision to return to work will not be one taken lightly. Alongside considering business needs, leaders will also need to factor in the details of employment contracts, the law and government guidance in their next steps.

Does the office need redesigning?

What should be informing all decisions at this point is how a safe working environment can be provided for staff. The right of employees to refuse work in unsafe conditions, without loss of pay is, after all, protected by law under Section 44 of the Employment Rights Act 1996.

In the context of a viral pandemic, a safe working environment could require a significant redesign of office/studio infrastructure.

“Social distancing is here to stay for a while and employers are going to need to consider how employees [can] operate safely,” Karen Holden, specialist employment lawyer and founder of A City Law Firm, tells Design Week.

As with any significant event in the workplace, design business heads will need to carry out a risk assessment on their proposed return to work and act accordingly, Holden explains. Such an assessment could point to the necessity for separating or rearranging workstations that don’t currently follow the 2-metre social distancing guidelines.

And almost certainly, it will also point to the need for “markers” to be set around the studio/office, which show an agreed maximum number of people allowed in areas like meeting rooms, toilets and lifts.

Design Business Association (DBA) CEO Deborah Dawton adds to this, suggesting that any “breakout” or communal areas should also be approached with caution. For the foreseeable future it could be advisable for employers to encourage designers to bring in their own lunches, she gives as example, instead of relying on shared canteens or nearby shops.

Should employees be tested for coronavirus?

A huge part of maintaining a safe working environment for employees will, obviously, be monitoring COVID-19 in the office.

On this matter, Dawton says design businesses should impress on their employees the need to continually self-assess themselves against the symptoms of coronavirus, perhaps by including it in an updated employee handbook.

“[This way they know] if they detect symptoms not to come to work, follow government advice and let their workplace know,” she says.

Workplaces wanting to go a step further and actually test their employees for COVID-19 will find themselves in relatively unchartered legal territory, Holden says.

“It is unlikely that any employment contract would be drafted in a blanket way in which to force employees to take any such test,” she says. “This is a very new legal space so there is not much concrete advice yet – but if an employer wants to offer this to staff it can be done with [employee] consent.”

In any case, Holden agrees with Dawton’s recommendation: that any company wanting to return to the studio will need a “clear policy” in place that states the expectations of staff with suspected COVID-19 symptoms, whether they have been tested or not.

Should employers provide PPE?

In a hospital setting, personal protective equipment (PPE) is a necessity in the fight against the coronavirus. Elsewhere, however, there are conflicting reports on just how useful items like masks and gloves are.

The latest guidance from the UK government (as of 11 May) states that face coverings are advised in “enclosed spaces” like public transport or smaller shops. It does not specifically state workplaces, though common sense would suggest if your office or studio is “enclosed” it’s a good practice to adopt here too.

Currently, Holden says, the government is still considering whether employees returning to work should be compelled to wear masks – though she adds that the government is probably more likely to suggest office redesigns like those already mentioned than anything else.

Just because it isn’t obligated by law, however, doesn’t mean design businesses can’t ask designers to wear gloves and masks, but it must by a policy “rolled out for everyone” and also a “fair business or health requirement”, she adds.

“Employers have both a common law and statutory duty to ‘ensure, so far as reasonably practical’ the health and safety within a workplace,” Holden says. “To breach this duty is both a criminal and civil offence [and in particular] the PPE Regulation 1992 should now be on the forefront of all employers’ minds.”

Are employers liable for the commute into work?

Where many design businesses might struggle, and where one straightforward recommendation is impossible, is with transport to and from work. Depending on where their studios are based in the UK, designers could be faced with a wholly unrecognisable commute.

For those working outside of bigger cities Dawton says car sharing could be an option, though this would have to come with some significant amendments.

“[It could be] an option, with a maximum of one passenger who should sit in the back,” she says, adding that in these cases it would likely be advisable for both parties to also be wearing face coverings.

For those without access to a car, or for whom car travel would be inconvenient (such as those in bigger cities), travel advice is less concrete. Holden suggests in these circumstances that design business heads should consider staggering workdays, so that employees needing to use public transport don’t have to access it during peak times.

Another option would, of course, be to allow these employees to remain working from home or reducing the number of days spent in the office.

How flexible does the law require employers to be?

Even before the coronavirus crisis, employers were required within reason to be open to flexible working requests. With a global pandemic on our hands, the need for this is greater than ever.

Holden points out that the first port of call for any employee should be their line manager. More often than not, an arrangement is achievable. If it isn’t, employees who have worked with the business for more than 26 weeks can submit a statutory application for a flexible working request, which the employer is required to deal with in a “reasonable” manner, Holden says.

Ultimately, design business employers can refuse the application if there is a good business reason for doing so, but Holden adds to this, saying: “Given the circumstances, we believe this will be placed under scrutiny by a tribunal”.

As Holden points out many staff will, in the coming weeks and months, still be tied down with home-schooling duties since not all school-age children will be returning on the scheduled dates in June.

“To discriminate against parents in who can and cannot attend is likely to be scrutinised by a tribunal should it go there,” she says. “But more so, to retain talent and staff commitment, employers need to approach this fairly.”

Communication is key

There is, necessarily, a lot to be considered and throughout it all, both Dawton and Holden say the key to a successful return to work for design businesses will lie in communication.

“Engagement gives employees both comfort and the thought they are being considered in the planning stages,” says Holden. Nominating someone to act as a confidant over staff concerns, conducting return to work interviews or consultations and giving real, documented consideration to flexible working arrangements, Holden says, are important things to consider.

Dawton echoes this, suggesting that returning staff be “briefed on arrival” on what they can expect from their employer, and what in turn, is expected of them.

Ultimately, she says, this dialogue will keep things running smoothly amid otherwise turbulent times.

“Consult those working for you and find the process that works best for your team and studio context – we all know the rules, let common sense and a sense of public duty influence what we all do. If we put others before ourselves, we should get this right,” she says.

Resources for employees and employers returning to work:

• Section 44 of the Employment Rights Act 1996
• Workplace posters from the Centre for the Protection of National Infrastructure
• Flexible working legislation from gov.uk