Reopening offices – what do the new regulations say?

Under the current “all tiers” regulations, employees cannot leave home to go to work in England unless this is reasonably necessary because it is not reasonably possible for them to work from home. The government has just published the new regulations that will apply from 29 March 2021, removing the “stay at home” instructions in favour of a new system of steps out of lockdown. The regulations are intended to implement the “roadmap” announced by the government in February.

The regulations, subject to approval by Parliament, set out the restrictions that will apply at each “step” out of lockdown. They apply to the whole of England but are drafted in such a way that different regions of England could move through the steps at a different pace. This article summarises the implications for reopening offices.

Step 1 – 29 March

The stay at home order will be lifted from 29 March 2021. This means that it will no longer be a criminal offence to leave home in order to go to the office if your job can be done from home. However, we await new government guidance which is expected to say that office workers should carry on working from home if possible and minimise the number of journeys they make.

Although the stay at home order will be lifted, “gatherings” will remain heavily restricted. Under the new regulations, no gatherings will be allowed in an office unless they are “reasonably necessary”. Gatherings outdoors will be allowed if they comply with the “rule of six”, but larger groups can meet outside for work purposes only if reasonably necessary. Breaching these restrictions on gatherings will be a criminal offence.

Workplaces also need to continue to be Covid-secure, of course, which itself creates ongoing restrictions. In practice, this means the position is as follows:

• Solitary and independent working in the office will become permissible from 29 March when the current stringent restrictions are eased, but this will become a matter of government guidance and the details have not yet been published. Employers will be keen to see if the guidance explicitly supports a limited reopening of offices to allow employees to come back to the office if they are struggling with homeworking for mental health reasons or if their working environment at home is unsuitable.
• With the position no longer being subject to stringent legal restrictions, it is likely that offices will begin to open up for employees who have very good reasons to need to work there.
• In-person meetings are more difficult than going to work alone in the office. No meetings or gatherings can happen inside the office (or other indoor environment) unless they are reasonably necessary. If a meeting can be done remotely, it would be a breach of the law to require employees to come into the office for it.
• Although outdoor meetings of up to six people are allowed for any reason (and larger groups where reasonably necessary for work purposes), this is of limited relevance to offices - especially since outdoor hospitality will remain closed at this point.
• Employers can therefore look to open up their offices to more people from 29 March but should continue to restrict office access in line with the guidance. They should bear in mind that the more people there are in the office, the harder it is to prevent unnecessary meetings.
• Employers will not be able to require employees to return to the office if they can both carry on working from home and want to carry on doing so, assuming that the guidance includes (as we expect) the message that office workers should stay at home where they can.

Step 2 (pencilled in for 12 April)

The position will remain, for all material purposes, the same as for step 1. There will only be two differences.

Outdoor hospitality will open up. This means that outdoor businesses lunches can lawfully take place (with clients or colleagues) within the rule of six, without criminal consequences. That will be the case even if the lunches are purely social occasions, although government guidance may advise against this. Employers will want to be cautious, in any event, given the ongoing circulation of the virus and limited vaccination of the working-age population. Larger outdoor meetings will be allowed only if this is reasonably necessary, which is unlikely to apply to purely social occasions.

Certain “permitted organised gatherings” which take place outdoors on business premises will also be allowed. These gatherings can be of any size but are permitted only if people “participate in the gathering alone” or in groups of six which do not mingle. 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 but, given the parameters around this additional exemption, it will be of little relevance to offices.

Step 3 (pencilled in for 17 May)

At this point, meetings will continue to be allowed if reasonably necessary for work purposes.

In addition, any indoor meeting will be lawful if it is within the “rule of six”. Indoor hospitality will also open up, offering more scope for business lunches.

Any outdoor meeting will be lawful if it is within the “rule of 30”. This would mean, for example, that employers could hold small social events involving up to 30 employees and/or clients, subject to the guidance.

At this point, “permitted organised gatherings” (of any size) which take place either indoors or outdoors on business premises will also be allowed, but once again only if people participate alone or in groups of six (indoors) or 30 (outdoors) which do not mingle. This could potentially allow for bigger social events to take place at the same venue, if groups do not mingle.

All of this will remain subject to government guidance, which we expect will continue to emphasise that office workers should be at home and minimising journeys where possible. Employers should not compel employees to attend any kind of social occasion or event that is not reasonably necessary for work purposes.

Step 4 (pencilled in for 21 June)

The new regulations contain no restrictions for this step, because the government is hoping to lift all the relevant legal restrictions at the beginning of step 4. At this point, offices may be able to reopen completely. The government has indicated that it will review the Covid-secure guidance for offices, and it is possible that the rules on social distancing and other safety precautions will be relaxed. The extent to which Covid-status certificates can play a role in this is also being explored.

Before reopening, employers will need to update their arrangements in line with the new guidance. They will also need to make decisions about who should return to work and any new flexible or hybrid working arrangements.