08 July 2021
With COVID restrictions ending soon, will employees return to the office?
The Government has announced plans for most of the remaining COVID restrictions to end on 19 July. This includes the ‘work from home where possible’ instruction.
These plans are likely to be confirmed on 12 July. However, it seems that employers can start to prepare for this expected change and return to far more normal life.
So, what should employers be doing? Well, while (hopefully) detailed guidance is awaited, here our specialist employment lawyers answer some of the common questions they are receiving.
Will employers be able to force staff back to the workplace?
Assuming the restrictions are actually lifted, the short answer is ‘yes’, as long as the instruction to return to the workplace is reasonable. Of course, where working from home has not been possible, many workers have continued to attend the workplace in this very difficult period.
What may be ‘reasonable’ will depend on the specific circumstances, including, for example, the needs of the business, the nature of the work or the circumstances of the particular employee. However, the expected starting point for this is for the employer to undertake or update a risk assessment which considers the risks and takes reasonable steps in looking to mitigate them.
Can staff refuse to return?
Yes, a worker or employee can reasonably refuse to return to the workplace and, if so, be protected from related detriments, and will still have this right after 19 July. However, this protection will only apply if the worker has a genuine belief that returning to the workplace or the workplace itself would put them in serious and imminent danger and their response was reasonable.
Staff may well have concerns about returning to the workplace, and employers should take care to listen to them. Identifying the reason for the concern is key in deciding how to proceed, and certain concerns may give rise to legal complaints; for example, as is explained above. This is usually done on an individual basis, depending on the particular issue.
A qualifying employee who does not want to return to the workplace may alternatively make a formal flexible working request. Such a request may be harder to resist if, say, that person has worked from home successfully. Employers should take care not to discriminate in making any such decisions or making any new rules. Working mums, who typically have a greater need for flexibility (25 per cent of working mums cited a flexible working schedule as their number one priority in a TopCV survey) and are protected from indirect discrimination which cannot be objectively justified, may be particularly affected.
What steps do employers need to take to make workplaces safe for returning staff?
The Government has been quite vague about this but is expected to publish guidance in the near future containing examples of the precautions and measures that may reduce the risk of transmission of the virus. These measures are likely to include encouraging staff to wash their hands and surfaces regularly, reducing unnecessary contact and ensuring workplaces are well ventilated.
Government instruction and guidance to one side, an employer’s duty in relation to staff’s health, safety and welfare remains as it was pre-COVID. In general, this is to take reasonable care of each aspect. Therefore, it seems that the answer now is to build a plan based on the risk assessment and needs of the business, and then to communicate what has been decided to the staff.
In planning for this, employers should bear in mind that, as considered above, staff may well have concerns. Further, some staff may be more at risk than others. For example, some may not have been fully vaccinated, or may not have been vaccinated on health grounds or because of a reasonable belief. In addition, although those who were ‘clinically extremely vulnerable’ are no longer shielding, employers continue to be responsible for taking reasonable care of them at work.
Therefore, it may be advisable or helpful to consult with the staff about the proposals or to listen to any concerns and suggestions employees have, to enable them to feel safe when returning to the workplace. Perhaps, for example, this could include changing working hours to avoid peak times on public transport or maintaining social distancing. An individualised, rather than a ‘one size fits all’ approach may be needed to support those who are vulnerable or concerned.
Employers must also continue to ensure that any worker who has to self-isolate does not attend the workplace and, it seems, must ensure that both workers and customers or clients understand that if they do not feel well, they should not attend the setting.
Going forwards, as we are all familiar, the guidance may change and particularly as we near the winter months. B P Collins will closely monitor all future updates and communicate these as soon as we know more.