Returning to Work: Is Your Business Legal

As businesses begin to reopen and employees return to work, it’s crucial to ensure your business remains legal. Yet, under such unprecedented circumstances, it can be hard to understand what requirements are involved in keeping everyone safe, and which restrictions could apply to your business.

The latest announcement from the government states that if businesses can work from home, they should continue to do so, while any company with employees who cannot work from home are encouraged to reopen and welcome back their teams.

From 1st June, it is anticipated that some non-essential shops and stores will reopen. Finally, from the earliest of 1st July, further businesses will be allowed to reopen, including hospitality, public places and leisure facilities.

Government guidance

To support the return to work, the government have released 5 step guidance for all businesses that include:

·       Taking reasonable steps to support people in working from home wherever possible

·       Carry out a COVID-19 risk assessment and consult with relevant unions. It’s important to note here that any business with over 50 employees must publish their risk assessments on their websites.

·       Maintain 2 metres distance whenever possible. As such, employers should be looking at how to redesign their workspaces to ensure this possible. This could include moving desks or setting up one-way systems.

·       If 2 metres is not achievable, risk should be reduced with, for example, barriers or changing shift patterns to reduce the number of people in one space at any one time.

·       Clean workspaces more frequently, paying close attention to areas that are high contact such as door handles. Employers should also be providing either hand sanitisers or handwashing facilities at entry and exit points.


One of the most prominent legal considerations should be equality and discrimination. Employers need to continue to be mindful of how they treat employees during this time, being aware of whether they treat individuals more or less favourably based on protected characteristics. This includes things such as gender, disability or age.

The Equality and Human Rights Commission has released guidance to ensure all employees are treated fairly, and to help businesses make the appropriate actions when it comes to making decisions. This includes advice such as:

·       Whether a candidate is given additional hours or has their hours reduced, should not be based on protected characteristics.

·       Employees with protected characteristics should be involved and communicated with during the decision-making process.

·       Workplace arrangements should not disadvantage those with protected characteristics.

·       Reasons for employees to be on furlough, reduced hours or working from home should be only due to business requirements.

·       Ensure you do not have an unjustifiable negative impact on some groups compared to others.

Disciplinary actions

Another area that should be closely monitored is your disciplinary actions. Many employers have raised questions over whether it is legal for them to discipline employees during the pandemic and the ACAS has confirmed that the Code of Practice on Disciplinary and Grievance Procedures will continue to apply.

It will be up to you as the employer to decide whether it is fair to continue disciplinary procedures should your employees be furloughed or working from home. Furloughed employers and those working from home can also participate in investigations and hearings as part of grievance procedures.

However, it’s essential to be aware that during furlough, employees should cease all work, and as such, disciplinary processes may be considered ‘work’, and employers will not be able to claim for the employee’s wages.

For further advice on ensuring you remain legal as you and your business return to work, contact SME Comply. We offer subscription access to legal documents and e-learning materials, as well as pay-as-you-go and fixed fee services that cover all of your employment law needs.

Available on 01386 291011 or email

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