Back to tiers - what do the new regulations say about office working?

During the November 2020 lockdown, employees couldn’t leave home to go to work in England unless this was reasonably necessary because it was not reasonably possible for them to work from home. New regulations reintroduced a tier system from 2 December 2020.  These were amended to bring in a new, more stringent, tier 4 from 20 December 2020

For areas in tier 4, the rules on leaving home have been re-imposed, which means going to work is subject to the same restrictions as under the November 2020 lockdown.  For tiers 1 to 3, the rules on going to the office are a mixture of government guidance and regulation.

When going to the office could be a criminal offence – the law

For people in tier 4 areas, leaving home in order to go to work will be a criminal offence, unless it is reasonably necessary to do so because it is not reasonably possible to do work from home. Given that the purpose of the new tier 4 restrictions is to halt the spread of the more rapidly transmitted variant of the virus, we expect that this will be interpreted fairly strictly. 

For tiers 1 to 3, the position is the same in all three tiers.

The regulations set out various restrictions. For office workers, the relevant restrictions are the ones placed on “gatherings”. A gathering takes place when two are more persons are present together in the same place in order to socialise or undertake any other activity with each other. Breaching the rules on gatherings is a criminal offence.

The position is broadly as follows:

• Any kind of gathering is allowed if it is reasonably necessary for work purposes (this is also the case under tier 4).

• In addition, gatherings which are organised to take place on business premises are allowed in tiers 1 to 3 - without any reasonable necessity test - if people “participate in the gathering alone” and do not "mingle" outside of their own household group. It is possible that certain staff events, briefings, or even meetings could take place within this exemption depending on, for example, the extent of interaction and distancing. However, as soon as individuals are no longer participating “alone”, the event would need to meet the test of being “reasonably necessary for work purposes”.

• Simply going to attend the office by yourself to get work done alone is, on the face of it, not restricted by law at all under tiers 1 to 3. This is because there are no longer any legal restrictions under the first three tiers on leaving home, and it does not necessarily involve any kind of gathering. (We discussed this issue in our previous article What does the Covid-19 tier system mean for offices.)

Workplaces need to be Covid-secure, of course, which itself creates restrictions - especially in relation to the ability to hold meetings.

Don’t go to work if you can work from home – the guidance

The guidance for tier 4 states that people should not travel in or out of a tier 4 area – but it is permissible to do so if it is necessary to go to work.

Under tiers 1 to 3, after the November lockdown, the government guidance had not reverted to the looser test that was in place when tiers were first introduced, which turned on whether employees could work “effectively” from home. Instead, the guidance simply said that everyone who could work from home should do so. Following the announcement about tier 4, the guidance across all tiers was updated on 19 December 2020.  For all tiers this guidance has now reverted to the previous formulation of “everyone who can work effectively from home should do so.”  However, the guidance for offices and contact centres on working safely during coronavirus still says that “office workers should work from home if they can do so”.  It is unclear why these two sets of guidance contain different wording.

In its Covid-19 Winter Plan, the government said this:

“Working from home can reduce transmission. Between 24 April and 3 May, 36% of employees were working exclusively from home. These numbers declined as expected over the summer. However, since the Government renewed its Work From Home guidance in late September and through the period of the November national restrictions, the numbers working from home have remained relatively low compared to earlier in the year. SAGE advice is that typically over one third of contacts are made at work, that these are often of long duration and highly clustered and that homeworking can have a significant effect on reducing transmission if all those who can work from home do so. The Government encourages employers to enable a greater degree of home working and will strengthen guidance to be very clear that anyone who can work from home should do so. The Government recognises that there are specific reasons why attendance in the workplace may be needed, including mental health issues or concerns; and/or a need to work on-site physically.”

This had apparently signalled a tougher stance on working from home, although it is helpful to have specific mention of mental health issues. There will remain other reasons why someone needs to be in the office, whether on a particular day or more generally. The current inconsistency in the guidance makes it unclear whether it is permissible for an employee to be present just because they can be more productive/effective in the office or have a preference to work there.

Employers who wish to authorise employees attending the office may want to consider providing them with an explanation to show police in the event they are stopped, particularly in tier 4, or at least keep a record on the employee’s personnel file of the reason they are attending.

The business lunch

While you might think it’s the season for business lunches, unless you are in tier 1 and can organise a lunch under the “rule of six”, a lunch indoors would need to meet the “reasonably necessary for work purposes” test.  And under tiers 3 and 4, all hospitality businesses must close except for takeaways.

A lunch meeting will involve a gathering. Deciding whether a business lunch is reasonably necessary for work purposes will require considering what exactly it is about the business you wish to transact over lunch that you couldn't transact remotely, or in a meeting in your Covid-secure office.

The government guidance gives a strong indication that the “reasonably necessary for work purposes” test is not intended to exempt routine business lunches. The guidance on going to work explicitly states that “meals to socialise with work colleagues are not permitted” (tier 1 prohibits such meals in groups of more than six). In addition, the specific guidance for restaurants, pubs and bars in tier 2 states that businesses must only accept indoor bookings for people from one household or support bubble. The guidance omits any reference to the work purposes exception.

Employers may wish to consider giving employees guidance on business lunches during the festive period in order to ensure they are aware of the government guidance, but also to avoid employees feeling pressured into attending lunch meetings which they may not regard as “reasonably necessary”.

Conclusion

Although it had been thought that the government was aiming to simplify its messaging on working from home, signalling a tougher stance on this issue,  the position is now unclear due to the re-appearance in some of the guidance of the test of whether employees can work “effectively” from home. Employers will still need to assess requests to work in the office carefully to check there are genuine reasons preventing an employee working from home, and should take extra care for employees who work or live in a tier 4 area.  Employers can also expect staff to question any requests to attend the office.

In-person meetings remain more difficult than attending the office to work alone. They will most likely be classed as a gathering and so come within the scope of the regulations even in tiers 1 to 3. Employers should exercise greater caution in requesting junior staff to attend in-person meetings (including business lunches) given that they may have a different view on the need for the meeting. 

With indications from the government that restrictions may need to be in place for some months, and the likelihood that more areas will need to move into tier 4 in the near future,  office workers can expect to continue working from home, effectively or otherwise, for a significant time to come.