New restrictions on office working announced

New restrictions on office working announced

Flexible furloughing and calls for clarity: third time lucky?

At lunchtime today the Prime Minister, Boris Johnson, announced a number of new restrictions to try to limit the increasing spread of COVID-19. For office workers this announcement represented a significant U-turn on the Government’s previous position as, having been strongly encouraged to return to the office, they are now being told to work from home where they can. This guidance is likely to be in force for the next six months.

As at the time of writing no additional guidance has been issued on the points raised in Mr Johnson‘s announcement and so employers are likely to be in a position where they have more questions than they have answers to. In particular, it was not made clear whether the instruction for office workers to work from home where they can is guidance or if it will have legal effect. It was also not explicitly stated when this instruction would come into force and so employers will have to assume that it takes immediate effect.

While we wait for some clarity, below are our suggestions on the key points that employers need to be considering right now.

First of all, employers will need to consider the immediate message that they are giving to employees in light of this announcement and whether they consider that they will now require anyone in their organisation who can work from home to do so, at least until detailed guidance is issued or whether (if working from home is not a legal requirement) they will give employees the option to come into the office if they feel they need to - for example if their home environment is not conducive to home working. If they take the latter course, employers will need to be particularly careful not to create a ‘two-tier’ workforce, where greater favour is shown to those who attend the office. Among other things this could lead to claims for discrimination as those with disabilities and potentially women are more likely to be working from home.

Given the length of time that the restrictions will be in force, employers will need to give real consideration (if they haven’t done so already) to how the mental health of their workforce will be supported during an extended period of restrictions, particularly where they are aware of employees with existing vulnerabilities. There is also a wider issue of health and safety when working from home as employees may not be set up with suitable workstations for long term home working and so consideration should be given to how any risks can be identified and dealt with.

Employers could also now find it more difficult to require employees to attend their place of work if they are unwilling to do so. The Employment Rights Act 1996 potentially protects employee who refuse to attend work where they have a reasonable and genuine belief that to do so poses a serious and imminent threat to their health. Employers will therefore need to consider their policies carefully, in particular in relation to employees who are especially vulnerable to COVID-19 and, if they are intending (and are permitted) to allow access to the office to ensure that vulnerable employees in particular do not feel under pressure to attend work, notwithstanding the government advice.

Finally, thought should be given to those employees who cannot work from home, but whose roles depend on the office being open, such as reception and catering staff. Given that the furlough scheme is due to come to an end on 31 October, there may not be a straightforward way of dealing with these individuals, unless the Government decides to extend that scheme contrary to its current position. It may therefore be that employers will need to consider making redundancies if those roles are not viable over an extended period of restrictions or consider alternatives to redundancies, such as redeployment to other roles, unpaid leave or reduced pay. 

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