Back to work – advice on working from home set to change on 1 August

The official guidance remains that employees should work from home if they can, but the Prime Minister announced today that this will change from 1 August. Employers will be able to ask employees who have been able to work from home since the lockdown to return to their workplace, provided they have taken steps to ensure the workplace is covid-19 secure and social distancing measures are in place. But 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 re-openings 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 spent the past few weeks dealing with. Whilst social distancing remains in place, most employers will find it difficult to facilitate any wholesale return to office life. Our updated FAQs on staffing decisions when reopening workplaces and related flowchart on staffing decisions cover the below issues in further detail.

What are the options from 1 August?

Employers have three main options:

1. Remain (mostly) closed with working from home continuing

With stringent health and safety measures required, some employers may wish to continue homeworking for a while longer, perhaps benefiting from reduced overheads and avoiding confrontations with reluctant employees who are too worried to return. Whilst this is legally acceptable, employers will need to ensure steps are taken to protect their workforce’s mental health. If working from home looks to be long-term, employers can also 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.

2. Re-open the office with optional attendance

This is likely to be the preferred option. It caters for those who would like to come back whilst 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 office 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 although many will not do so until the Autumn or even later.

3. Re-open with mandatory attendance

A blanket requirement for all employees to return to work would be a risky strategy for an employer to take if work has continued with some semblance of normality remotely 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:

• Vulnerable employees

The guidance currently recognises two categories of vulnerable employees, those who are clinically extremely vulnerable and have been asked to ‘shield’ and those who are clinically vulnerable but are not required to shield.

As of 1 August in England, the extremely clinically vulnerable are no longer advised to shield. We anticipate that the official Covid-19 secure workplace guidance will then advise employers to treat those two groups in the same way, i.e. to give them the safest available onsite 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

An employer’s duty of care extends only to their employees and not to the people they live with, but that’s not to say 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-secure 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 not be possible) 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 office when unable to do so would risk indirect discrimination claims.

• The ‘worried well’

Some employees won’t fall into any vulnerable category but will still be concerned about a return to the office. An employee has the right not to be subjected to any detriment on the grounds that they refused to return to their place of work in dangerous circumstances provided the employee 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 coronavirus, employers may well feel that the best course of action is to allow these employees to continue working from home for now. 

• Public transport users

As of today, 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. Whilst 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 will have to consider what allowances can be made for those people to avoid use at peak times yet still allow employees 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 & safety legislation.

For more detailed consideration of steps to minimise possible claims see our table on how to mitigate the risk of employment claims on a return to work.

Return to work raises a host of other issues

Once employers raise the prospect of a potential return, they may need to grapple with various other issues:

1. Get set for grievances

Trying to balance the views of some employees desperate to return to the office versus those who want to continue home-working 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 their employer’s discretion means employers can expect challenges.

Adding further thorny issues into the mix of rotas for coming into the office to maintain social distancing, questions over who gets to stay at home and who doesn’t and any alleged  breaches of the Covid-19 secure workplace guidelines by employers or colleagues, employers will need to ensure that they have robust processes in place for resolving complaints.

2. Expect a rise in flexible working requests

Employers can also expect an increased number of flexible working requests for home-working which will need to be dealt with in the context that many businesses have successfully implemented home working over the past few months.

Our recent employer survey found that 25% of respondents had already had requests for permanent homeworking or increased flexibility over working hours. 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. 

3. Planning 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 will need to ensure they can continue to accommodate homeworking with little to no notice, particularly for employees who have vulnerabilities themselves or within their families. We’ve written about this issue in detail here.

A big change or a small shift?

Against that background, many employers will look to mitigate risk either by not asking employees to return to office-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.