On 12 July 2021, the Prime Minister confirmed that Step 4 of the government’s Roadmap will go ahead on Monday, 19 July. The government is removing its instruction to work from home if you can, but does not expect that “the whole country will return to their desks” immediately. The government expects and recommends that employers conduct a “gradual return over the summer”.
The government has squarely put responsibility for planning a gradual return to the workplace on the shoulders of employers. Previous guidance for employers has, at times, been ambiguous during the pandemic, but has never been as scarce. Many employers will be left grappling with a number of questions about managing their workforce during this next step in our road to recovery. Those now considering a return to the workplace will need to manage the expectations of very different groups of employees: some will be enthusiastic about returning to the office as soon as possible, others may be incredibly anxious, and others may point blank refuse. We discuss each category below.
Employees who want to return to the office immediately on 19 July
Some employees will be delighted by the lifting of guidance to work from home, and be keen to return to the office as soon as possible, some on a full-time basis. Despite the enthusiasm and apparent acceptance of risk among this group of employees, employers should remain mindful of their legal duty to take reasonable care to provide a safe place of work and of their statutory health and safety obligations.
At a minimum, before allowing any employees to return to the office, an employer should conduct a thorough health and safety risk assessment and follow the government’s new guidance, Working safely during coronavirus (COVID-19): guidance form Step 4, which sets out a range of mitigations that employers should consider, including cleaning surfaces regularly, taking steps to improve ventilation, and ensuring that staff and third parties who are unwell do not attend the workplace. Employers may decide to retain preventative measures that are not legally required (for example, requiring staff to wear face masks in communal areas and maintaining some social distancing).
It may be the case that an employer does not want staff returning to the office in the same numbers as pre-pandemic, and may instead prefer a move to hybrid or permanent remote working. Implementation of such changes will require consultation with staff, on an individual and possibly collective basis, and may require a change in contractual place of work. We discuss how to implement hybrid and flexible working models here.
Employers should be alert to employees whose mental health is at risk if they remain working from home. It may be necessary to make adjustments for these employees, to enable them to return to the office in priority to others.
Employees who are reluctant to return because of concerns about COVID-19
There will be many employees who have genuine concerns about the risk of contracting COVID-19, if they return to the workplace. Many of these concerns will be exacerbated following the lifting of guidance on social distancing and mask wearing, particularly where the employee uses public transport.
Despite the success of the vaccine rollout, many employees remain clinically extremely vulnerable to COVID-19, including those employees who are immunosuppressed and for whom the vaccine is less effective. Some employees will be living with vulnerable family members. Others will be anxious about the risk of contracting COVID-19, including pregnant women who are known to have an increased risk of becoming severely ill and of pre-term birth. Given that vaccination does not eliminate the risk of transmission and infection, everyone remains vulnerable to illness and the threat of Long-COVID.
The government has updated guidance on protecting people who are clinically extremely vulnerable to COVID-19. From 19 July, clinically extremely vulnerable people are advised, as a minimum, to follow the same guidance as everyone else. Those at a higher risk of becoming seriously ill are told they many want “to think particularly carefully” about taking additional precautions. Unhelpfully, the guidance contains little information for employers on how to manage vulnerable members of staff, other than a reminder of their legal responsibility to protect their employees and others from risks to their health and safety.
Current Health and Safety Executive guidance advises employers to take every possible step to enable those who are clinically extremely vulnerable to work from home. It is expected that this guidance will be lifted following a review on 19 July. However, given the continued risk to clinically extremely vulnerable workers, employers should think very carefully before requiring a return to the office for those who have effectively performed their roles remotely for a significant length of time. Many clinically extremely vulnerable employees will be disabled, and working from home may be deemed a reasonable adjustment. In any event, employers should consult with vulnerable members of staff before requiring them to return to the workplace, and be prepared to explain what preventative measures they have put in place to protect them. There is a long-standing requirement for employers to put in place measures to ensure workplace safety where a significant health and safety risk is identified for a new or expectant mother, including remote working where this is possible.
Employers should also consider carefully before taking action against other employees who refuse to return to the workplace because of health and safety concerns. Those who reasonably believe that a return would place them in serious and imminent danger may be able to claim automatic unfair dismissal. We discuss recent examples of employees bringing such claims here. It remains to be seen whether the lifting of work from home guidance will impact the ability of employees to bring such claims successfully going forward. Removing work from home guidance could be interpreted as recognition that the risk posed by COVID-19 is now diminishing. The Prime Minister was, however, at pains to emphasise that significant risk remains: “I cannot say this powerfully or emphatically enough. This pandemic is not over. This disease, coronavirus, continues to carry risks for you and for your family.”
Employees who are reluctant to return to the office because of lifestyle reasons
Many employees have embraced the advantages of working from home and will be reluctant to return to the workplace. Some may have made changes to their lifestyle predicated on continuing to work predominantly from home, including relocating some distance from the office, putting different childcare arrangements in place, or acquiring a new pet. Others may have become accustomed to more time with family and to spend on exercise and other hobbies.
Employers should consider any reluctance to return to the office on a case by case basis, taking into account personal circumstances, in order to avoid indirectly discriminating because of gender or nationality. Working from home may also be a reasonable adjustment for disabled employees, including those who are not clinically extremely vulnerable to COVID-19 (for example, those whose disability makes commuting or office attendance more challenging).
Employees with 26 weeks’ service have the right to submit a flexible working request to change their contractual place of work. Employers may only refuse a request for one of eight statutory reasons, including a detrimental impact on quality or performance. Where an employee has been able to perform their role successfully for a lengthy period, in some cases since March 2020, it may be more difficult for an employer to substantiate a reason to refuse their flexible working request. In any event, employers will be mindful of the impact on employee engagement and retention of requiring those to return to the office where there is significant reluctance, even where there are notable upsides to having employees work collaboratively in the same place.
It would be sensible to give employees sufficient notice of any return date, to enable them to make changes to existing arrangements put in place around home working, and also for them to prepare, both practically and mentally, for a return to the workplace.
Employees who are reluctant to return to office for mental health reasons
After lengthy periods of relative social isolation, the prospect of returning to a busy commute and a crowded workplace may be overwhelming for many people, particularly those suffering from or predisposed to anxiety or other mental health conditions. Some neurodiverse employees may particularly struggle with adapting to a change in workplace, especially those who are vulnerable to sensory overload. In many cases, employees will be disabled and their employers will be required to make reasonable adjustments, which may include continued remote working, a phased return to the office, or varying working hours to avoid peak times in both the workplace and on public transport.
For further information on issues for employers to consider when preparing for the easing of restrictions, see here. For our toolkit designed to assist businesses in preparing for new ways of working as we start to recover from the pandemic, click here.
Lloyd Davey
Sarah Taylor