This week’s postponement of lifting all coronavirus restrictions – from 21 June to 19 July – has thrown many businesses into confusion after they had prepared to bring employees back into the office once the requirement to ‘work from home if you can’ was lifted. Kerry Garcia and Emily Hocken answer four questions for employers.
Is there still a legal requirement to work from home?
Quick answer: No, although government guidance still states that employees should ‘work from home if they can’. This will not change until at least 19 July 2021, unless brought forward by the government.
There has not been a legal requirement to work from home since the statutory restriction on leaving home without a reasonable excuse was lifted on 29 March. However, the government guidance remains that ‘you should continue to work from home if you can’. Although attending the workplace is not a breach of the law, employees are encouraged to stay at home where possible and employers are encouraged to take steps to facilitate remote working, including providing suitable IT and equipment.
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Are there any permitted exceptions to the working from home guidance?
Quick answer: Yes – employees who cannot perform their roles at home due to the nature of their role or for some other significant reason may attend their workplace.
There are many workers, for example, those in most hospitality or healthcare roles, who cannot work from home. For office workers, it may be that home working is not appropriate because of mental health difficulties or a particularly challenging home environment. The guidance does not clarify what is meant by ‘work from home if you can’ so it is for employers to decide whether employees can work remotely, and employees’ circumstances should be considered on a case-by-case basis.
Previous versions of government guidance referred to employees working from home if they could so ‘effectively’ and by omitting the word ‘effectively’ in the current guidance, it suggests that employees should not attend the office simply because they work more efficiently there. However, the current guidance explicitly states that someone does not need to be a critical worker to attend work. The general view is that employees may attend the workplace where their role requires it, for example to handle original documents or for printing and scanning.
If employees attend their workplace, employers must conduct a risk assessment and ensure workplaces are ‘COVID secure’. This could include providing masks and requiring employees to wear them, marking areas of the office to help maintain social distancing and keeping offices well ventilated. Employers should also discuss working arrangements with employees and take steps to help employees avoid busy times and routes on public transport.
Can employers force employees to return to the office?
Quick answer: It depends on the circumstances, the employee’s role and the guidance in force at the time.
If employees are able to work from home then, as long as the current guidance is in force, employers should think carefully before requiring those employees to return to the workplace. This may not only breach government guidance but employers also risk costly employment claims such as whistleblowing claims and claims relating to breaches of health and safety, as well as reputational damage.
The position becomes less clear if employees refuse to return to the office after the working from guidance is lifted. Employers would still be advised to take a cautious approach and consider why the employee is unwilling to return to work and explore if there are other options before taking disciplinary action or even dismissing the employee in order to mitigate the risk of tribunal claims.
Employees may also decide to submit a flexible working request in which they ask to work from home. Employers can turn down such requests in certain cases (e.g., if the role cannot be done from home) but this may be more difficult if the person has successfully worked remotely during the pandemic. This would result in a permanent change to the employee’s working arrangements and may be difficult to reverse.
What about vulnerable employees?
Extremely clinically vulnerable employees are no longer required to shield, and most should have had two doses of the vaccine. They can, therefore, be asked to return to the workplace and will not be entitled to statutory sick pay if they refuse to come in.
However, not all vulnerable employees can be vaccinated, and the vaccination does not offer 100% protection so employers should take vulnerable employees’ concerns seriously, consider them individually and, where possible, prioritise them for the safest roles and locations in the workplace. They could also use their discretion to place such employees on furlough or on unpaid leave or to continue to work from home. Employers owe all employees a duty of care, particularly if they are vulnerable. Further, if the employee is disabled, failure to consider reasonable adjustments for such employees could lead to a disability discrimination claim.
The Government’s delay in lifting all restrictions will inevitably have put some employers in a very sticky situation, especially those who want to get staff back to the office as soon as possible. Going forward, employers must keep a close eye on the Government guidance when it comes to returning to the workplace, in order to maintain good relations with their employees, avoid any reputational damage, and steer clear of any costly employment tribunal claims.
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