New covid-19 guidance for workplaces and the public: contractor sector has its say

Fears that the government’s new covid-19 guidance will confuse workplaces and the public are being borne out in the contractor sector, in England’s first week of lockdown easing.

Sounding more than just confused, however, about the new guidance, like ‘return to work if you can’t work from home;’ ‘avoid public transport’ and ‘take unlimited exercise,’ is IPSE.   

'We need to know the who, when, how'

Unsettled, the contractor trade group said: “Clearer safety guidelines not just for the self-employed, but for everyone who may need to consider leaving lockdown for work [are vital].

“We must know exactly who should be returning to work, when they should be returning, and how their workplaces can be made safe.”

Speaking yesterday, IPSE’s Andy Chamberlain was referring to the new workplace guidance stipulating how eight different business settings can be made, in the government’s words “covid-secure.”

'Double-danger'

“Not only must there be crystal clear safety guidelines: the government must also urgently get more support to groups who have so far missed out,” says Chamberlain, IPSE’s policy director, referring to both the newly self-employed and limited company contractors.

In a statement to ContractorUK, he added: “With a double-danger of unclear safety guidelines and no support, many limited company contractors may soon find themselves facing a drastic choice between their health and their income.

“The government must clear this dangerous uncertainty as quickly as possible. We must not get to the stage where freelancers who work through limited companies have to return to work in unsafe conditions because they do not have the income support they need.”

'Should be actively encouraged to go to work'

If income is the concern, some contractors will likely welcome the guidance stipulating that “people who can’t work from home [should] go into the workplace to work,” says the FCSA.

“This will of course be dependent on whether clients wish to re-engage, assuming a contract was put on hold due to being unable to work from home,” said the FCSA’s Julia Kermode. 

In line with her reading, prime minister Boris Johnson said this week: “We now need to stress that anyone who can’t work from home, for instance those in construction or manufacturing, should be actively encouraged to go to work.”

"[Once] businesses are comfortable [with the new guidance] they will want to get back on track with their strategy and plans,” reflected Ms Kermode, the FCSA’s chief executive.

“[And for contractors] this will mean getting their projects underway again, so demand for contractors should increase very soon.”

'New covid rules are like playing Top Trumps'

However until then, contractors, their clients and all other individuals (as professionals or members of the public), might as well be back in the schoolyard.

“The new rules are like playing a game of Top Trumps where certain rules override others, but the problem is we haven't been given the ‘power rating’ of each of the rules so we don’t know which ones override which.”

Explaining his characterisation of the government guidance, Stuart Marquis of umbrella company Liberty Bishop added: “The ‘stay home whenever possible’ guidance runs up against lots of the other guidance.

“For example, how can we ‘take unlimited exercise outside’ but also be in compliance with ‘stay home whenever possible’? Every time we exercise outside, we're breaking the ‘stay home’ rule.”

'So simple my grandkids get it'

A business and engineering services consultant, Gary Jordan, isn’t convinced. “[The updated guidance] is so simple my grandkids can tell me what to do.

“The problem lies in people listening to speak rather than listening to learn,” he wrote in a riposte on LinkedIn.

“Leaving it up to people to use common sense, behave rationally and make their own minds up [is] perfectly reasonable.”

It’s also necessary in the workplace, according to Sophie Vanhegan, partner at law firm GQ Littler.

“[Legal] disputes are bound to arise if employers try to apply a ‘one-size-fits-all’ approach,” she warns, “regardless of employees’ individual circumstances.”

'Decisions are a balance'

Neil Carberry, chief executive of the REC -- one of the 250 groups which the government consulted with to draw up the new workplace guidance amid the coronavirus outbreak, agrees.

“All such decisions are a balance,” he says. “What ‘reasonable mitigation’ [against covid-19] is will change from workplace to workplace.

“Government needs to make sure the tools businesses have to do this are clear, and that the position on issues outside of businesses’ control – like the commute – is clearly signalled.”

'Friction could arise'

Yet it’s the contractual position that bothers Lawspeed and it will soon bother engagers too, the recruitment law firm predicts.

“Both the laying off and the eventual return to work are activities that are unlikely to be fully covered by existing clauses,” warns the firm’s managing director Adrian Marlowe.

“While most people will not be looking at their contracts right now, bear in mind that friction could arise when it comes to the end of furloughing if returning staff are to work in a different way, or indeed are to be made redundant.”

Contracts not permitting cuts to pay or service are among the contractual flashpoints that he foresees, not helped by government only specifying that the worker needs to agree to the furlough until well after the CJRS was underway.

'100% remote working after all this is over'

For their part, some IT workers are hoping that one positive effect of the furlough scheme (and the ongoing official coronavirus guidance to “work from home if you can”), is more flexible working.

“Just spoke to a development manager who was telling me it is likely his team will go almost 100% remote working after all of this is over,” recruiter Adam Farrell, of Big Red Recruitment, posted online.

“He saw this as an opportunity to prove to the business it can be done and outputs would actually improve. He was right.”  

'No compulson to remote work post-pandemic'

Yet end-users getting on board with the home-working revolution does not mean government will, once lockdown is lifted.

In fact, Susan Kelly, partner at Winckworth Sherwood says it seems “unlikely” that the upshot of home-working being encouraged -- even as the phased return to workplaces begins, is that ‘WfH’ will become enshrined.

“There is already a right to request working from home, so although that might be strengthened somewhat, we would be very surprised if the government went so far as to, in effect, compel employers to allow people to work from home.”

The legal expert also said: “Apart from anything else, many jobs across the country simply cannot be done from home, so one then encounters the difficulty of defining which jobs attract this right and which do not.”

'Face coverings in hermetically sealed buildings'

At another law firm, Fieldfisher, the hope is that incoming guidance to flesh out the new covid-19 instructions for firms and people will no longer leave both parties with “more questions than answers.”  

“Maintaining social distancing [as the updated guidance recommends] should be relatively straightforward for those businesses that can keep people working from home

“But is much less simple for employers who need to bring staff back to business premises and who may not be able to operate with reduced numbers,” said the firm’s Elliot Kenton.

A health and safety lawyer, Mr Kenton added: “The government has also said face coverings [for ‘short periods indoors in crowded areas’]and ventilation are now encouraged to prevent transmission of disease.

“This raises the questions of where employers are going to get hold of PPE and how they can improve ventilation in what are often hermetically sealed buildings.”

'Disaster waiting to happen'

It is such advising by the government without it specifying or detailing much, that unnerves Liberty Bishop’s Mr Marquis.

“Asking people to apply common sense is a disaster waiting to happen. What that is effectively saying is that we should apply our own interpretation to these guidelines.”

Out of 100 different people, he added, “most [people] would probably be relatively close to each other on the spectrum [of what is acceptable].

“Yet there would always be those that sit on the extremes, [and] each and every one of them would be of the belief that they have stuck to the guidance.”

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Written by Simon Moore

Simon writes impartial news and engaging features for the contractor industry, covering, IR35, the loan charge and general tax and legislation.
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