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29 July 2020
The official guidance remains that employees should work from home if they can, but on 20 July 2020 the prime minister announced that this will change from 1 August 2020. Employers will be able to ask employees who have been able to work from home since the lockdown to return to their workplace, provided that they have taken steps to ensure that the workplace is COVID-19 secure and social distancing measures are in place. However, the prime minister emphasised that employers will have the discretion to make decisions about how their staff can work safely, which could mean continuing to work from home.
Many employers will have already spent the past few months preparing for this announcement by undertaking workplace health and safety assessments and considering how to implement social distancing with the limitations of their physical locations. There have already been widespread small-scale reopenings for employees who are struggling with homeworking. The change in guidance means that all employers will now be faced with some of the difficulties that many employers with workforces that cannot work from home have dealt with during the past few weeks. While social distancing remains in place, most employers will find it difficult to facilitate any wholesale return to office life.(1)
The prime minister wants more staff to go back to their workplace, but his big announcement is likely to bring about only a small shift.
Employers have three main options:
Remain (mostly) closed with working from home continuing
With stringent health and safety measures required, some employers may wish to continue homeworking for longer, perhaps benefiting from reduced overheads and avoiding confrontations with reluctant employees who are worried to return. While this is legally acceptable, employers must ensure that steps are taken to protect their workforce's mental health. If working from home looks to be long term, employers should expect to see requests for additional support with workplace equipment. Many employers have allowed a small number of employees to return if they are struggling with working remotely and are providing equipment on reasonable request.
Reopen the workplace with optional attendance
This is likely to be the preferred option. It caters for those who would like to come back while accommodating those who are unable or unwilling to return. This is also the safest approach from a perspective of minimising possible employment claims and allowing employers to test their proposed working practices with a reduced workforce in situ.
Many employers have already consulted their homeworking workforce to assess the appetite for a return to the workplace and gauge likely numbers as part of their health and safety assessments. Some may now begin to open up on a volunteers-only, restricted-numbers basis from 1 August 2020; although many will not do so until the autumn or even later.
Reopen the workplace with mandatory attendance
A blanket requirement for all employees to return to work would be a risky strategy for employers to take if work has continued remotely with some semblance of normality throughout lockdown. Allowing exceptions for employees in certain categories is a more suitable alternative. There are many reasons why employees may be unable or unwilling to return, and employers may need to take an individualised approach. The key categories are as follows.
The guidance currently recognises two categories of vulnerable employee:
As of 1 August 2020, in England the extremely clinically vulnerable are no longer advised to shield. The official COVID-19 secure workplace guidance will likely then advise employers to treat those two groups in the same way (ie, to give them the safest available on-site roles and, where no such roles are available, to consider if this is an acceptable level of risk).
However, many clinically vulnerable employees will qualify as disabled for the purposes of the Equality Act. This makes it particularly risky to require their return, since it may be a reasonable adjustment to allow continued homeworking.
Living with vulnerable relatives
Employers' duty of care extends only to their employees and not to the people with whom they live; however, that is not to say that an employee who lives with a vulnerable person could not raise a grievance or bring a claim over a blanket requirement to return. The issue is more nuanced in cases where the employee has been able to successfully work from home. The COVID-19 secure workplace guidance also requires employers to pay particular attention to those who live with someone who is clinically vulnerable
Lack of care for dependents
Those without childcare (particularly throughout the summer holidays where usual childcare arrangements may be impossible) are entitled to unpaid parental or dependants leave. However, requiring employees who have been able to work from home with children successfully to return to the workplace when they are unable to do so would risk indirect discrimination claims.
The 'worried well'
Some employees will not fall into any vulnerable category but will still be concerned about a return to the workplace. Employees have the right not to be subjected to any detriment on the grounds that they refused to return to their workplace in dangerous circumstances provided that they reasonably believed the danger to be serious and imminent. Employers can reduce the risk of successful claims in various ways, including by providing detailed explanations about steps taken to control and reduce risks. However, given the constantly changing effects and scale of the pandemic, employers may feel that the best course of action is to allow these employees to continue working from home for now.
Public transport users
As of 20 July 2020, the advice to consider using other modes of transport before using public transport has been lifted, and the government has updated its guidance on safe travel in England. While there are no restrictions, people are still encouraged to consider walking or cycling if possible.
For employees who are reliant on using public transport, employers must consider what allowances can be made for them to avoid use at peak times yet still allow them to fulfil any personal commitments such as childcare.
Requiring public transport-reliant staff to return also runs the risk of claims. Employers can also expect arguments over whether commuting is covered by health and safety legislation.(2)
Once employers raise the prospect of a potential return to the workplace, they may need to grapple with various other issues, including preparing for:
Prepare for grievances
Trying to balance the views of some employees desperate to return to the workplace versus those who want to continue homeworking is likely to be a difficult issue for employers for the rest of the year. The fact that the government guidance makes clear that the decision to return is solely at employers' discretion means that employers can expect challenges.
Adding further thorny issues into the mix of rotas for coming into the workplace to maintain social distancing, questions over who gets to stay at home and who does not and any alleged breaches of the COVID-19 secure workplace guidelines by employers or colleagues, employers must ensure that they have robust processes in place for resolving complaints.
Expect a rise in flexible working requests
Employers can also expect an increased number of flexible working requests for homeworking which must be dealt with in the context that many businesses have successfully implemented homeworking over the past few months.
Changes to the legal position were already on the cards from January 2020: the Employment Bill proposed by the government plans to make flexible working the 'default position' unless an employer has a good reason to reject it.
Plan ahead for a second wave
Employers have already had one major test of their preparation for a remote workforce. With reports of a second wave and further local lockdowns likely, employers must ensure that they can continue to accommodate homeworking with little to no notice, particularly for employees who have vulnerabilities themselves or within their families.(3)
Against that background, many employers will look to mitigate risk either by not asking employees to return to workplace-based roles or by giving them a free choice on whether to do so. There are reputational as well as legal risks for those that take a different approach. Although the prime minister's announcement is intended to encourage a step change, it may end up bringing about only a small shift.
For further information on this topic please contact Colin Leckey or Helen Coombes at Lewis Silkin by telephone (+44 20 7074 8000) or email (firstname.lastname@example.org or email@example.com). The Lewis Silkin website can be accessed at www.lewissilkin.com.
(1) For further information please see "Coronavirus – FAQs on staffing decisions when reopening workplaces" and "Staffing decisions when reopening workplaces – flowchart".
(2) For further information please see "How to mitigate the risk of employment claims on return to work during Covid-19 – a table".
(3) For further information please see "Local lockdowns – what are the HR and employment law issues?".
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