Claire Merritt | 14th April 2021

Returning to the workplace – What should employers be considering?

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Claire Merritt | 14th April 2021

Returning to the workplace – What should employers be considering?


Returning to the workplace was initially a topic of the Prime Minister’s announcement last year on Friday 17 July 2020.

Almost a year later we will soon be having similar conversations again as the Roadmap out of Lockdown moves forward.

At the moment, employees are being asked to remain working from home wherever possible to do so and the government guidance suggests that more guidance will be provided in the review to take to take place by no later than 17 May 2021.

Will there once again be more discretion for employers on workers returning to the workplace?

Currently, the advice and guidance from the government is that people should only be going to work if they cannot work from home – this has been the position since the third lockdown started in January 2021.

As restrictions eased last July, the government adopted a policy of allowing employers to decide for themselves whether they wished to order their employees to return to work or continue with remote working. However, they required employers to consult with their employees on any return to the workplace and required them to ensure that their workplace was COVID-19 secure, with adequate social distancing in place.

At the moment there is no clear guidance from the government on how a return to the workplace should be managed once we reach that stage of the Roadmap and this announcement will not be made until the review due on 17 May 2021. However it seems likely that a similar approach will be adopted.

Indeed many employers are already starting to talk about the arrangements they need to put in place and how to handle difficult discussions with their staff who have now spent over a year working from their homes.

What does a COVID-19 secure workplace mean?

We have touched on this topic in our existing blogs (Coronavirus (COVID-19) and returning to work), but broadly speaking there are strict measures that employers need to follow in order to make their workplace secure. These include, but are not limited to, the following:

  • Carry out a COVID-19 risk assessment and share the results of the assessment with your employees, taking onboard any concerns raised.
  • Observe the “1m plus” rule of social distancing. This requires employers to ensure staff are 2m away from each other in the workplace but where this is not possible this can be reduced to one metre provided additional steps to reduce transmission are taken.
  • Introduce one-way systems to minimise contact.
  • Frequent cleaning of objects and communal areas.

What can employers do?

From a practical point of view, employers appear to have three main options to consider when reviewing arrangements to return to work. However, nothing should change for the moment until the government’s advice on working from home changes.

For those businesses looking ahead to what the options may be, we look at them each in turn below:

1. Continue working from home

Employers may feel that working remotely from home has worked well so far and that, despite the easing of restrictions, the best way they can ensure their staff are working safely is to continue asking them to work from home even if the announcement in May allows more people to return to the workplace. It is likely that employers will still be entitled to do this at their “discretion” as to how they ensure safe working.

There are obvious benefits in taking this approach, namely that employers will not have to deal with any disgruntled or aggrieved employees who are reluctant to return at this stage. However, those conversations will need to happen at some point therefore it may be beneficial to start phasing their employees back to work. Remember the consultation process is the key aspect in any return to work, dealing with any employee concerns about the employer’s return plans.

2. Limited or phased return to work

This is likely to be the most popular approach amongst employers and involves limiting the number of employees returning to the workplace to those who wish to return or who need to return, with the remainder continuing to work from home. Employers should have already carried out a risk assessment and consultation with their employees about a return to work, therefore they may already have any idea of any volunteers who wish to return.

This seems to be the safest approach from the perspective of minimising possible employment claims as it accommodates both those employees who are struggling from working in isolation at home, as well as those that are anxious about a return and wish to remain at home. Limiting the numbers returning will also allow employers to test their proposed working practices and eliminate any concerns early before the workforce returns in full at a later date.

3. Full return to work

Technically, if in May the government removes the requirements to remain working from home and again gives employers discretion to decide how they ensure safe working, employers could impose a blanket policy requiring all their employees to return to the workplace. However, it seems unlikely that whilst social distancing and other measures remains in place, employers will be able to facilitate a return for all employees and still have a COVID-19 secure workplace. If the announcements in May or June 2021 remove social distancing entirely this may of course change the situation but it currently seems unlikely that no restrictions at all will be in place, for the short term at least.

Further still, employers could expose themselves to an influx of grievances and potential whistleblowing claims in respect of health and safety if they were to impose such a policy. Employees may also be able to reasonably point to the fact they have been able to work from home during lockdown thus far in support of any claim.

Should an employer consider any relevant exceptions?

Certain employees may need greater consideration before an employer requires them to return to the workplace. The following are the key types of employees that may fall under this:

  • Clinically vulnerable employees

These individuals are no longer required to shield and thus can also be ordered to return to the workplace. However, some of these employees may be considered disabled and a reasonable adjustment for such employees may be to continue to work from home.

Returning to work may also cause a problem for employees who live with clinically vulnerable people who feel a return would cause them danger – COVID-secure guidance also requires employers to pay particular attention to those who live with someone who is clinically vulnerable.

Please see my recent blog on shielding for more details on this issue and also the statutory rights that protect employees who refuse a return to work.

  • Lack of care for dependents

Several references have been made to this issue during the recent school closures where workers could not get child care. The Prime Minister remarked last year that such employees should be “defended and protected on that basis”. Whilst employers should bear this in mind and try to be as flexible as possible with employees that this will affect, it is unlikely to be a key factor moving forward now the schools and childcare facilities are open once more. It may, however, lead to more requests for flexibility over working arrangements during school holidays if ad hoc childcare remains affected.

  • Public transport

Whilst people are able to use public transport to get to work, the government’s guidance does encourage the public to consider alternative means of transport where possible.

Many people also remain afraid that using public transport will expose them to the risk of being infected by Coronavirus and employers should still be wary that a number of their employees may rely on public transport in order to travel to work. This should be considered by offering adjustments such as staggering working times outside rush hour, providing parking if possible or making appropriate other allowances. However, again as the restrictions ease and the vaccination programme continues this may become less of a concern.

When is the best time to have these discussions?

With the opening of non-essential retail, zoos, theme parks and other outdoor areas many office-based employers are also turning their thoughts to a return to the workplace and the issues set out above.

However, as the Government are due to issue more guidance on working from home as part of their review on 17 May 2021 we would recommend waiting until that information is available before making any firm decisions or announcements. Finalising plans at the moment would arguably be premature whilst the requirement for working at home remains in place.

It is likely that the Prime Minister will make an announcement in the week leading up to 17 May 2021 with the updated guidance to take effect from that date. We will update this blog when further information is available.

If you would like to discuss any issues covered in this update please contact a member of the Employment team.

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This update was co-authored by Fred Chandler, Trainee Solicitor and Claire Merritt, Partner.

 

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