Step 1B of the government’s roadmap to the easing of national restrictions came into effect on 29 March 2021. There is no longer a legal requirement to work from home, although employers should consider carefully before permitting staff to return to the workplace. The shielding programme will be paused with effect from 1 April 2021, so employers should prepare for clinically extremely vulnerable employees to return to the workplace if it is safe for them to do so.
Is there still a legal requirement to work from home?
The statutory restriction on leaving home without a reasonable excuse has now been lifted, so there is no longer a strict legal requirement to work from home. Between 6 January and 29 March 2021, individuals were only permitted to attend their workplace where it was “reasonably necessary… for the purposes of work”. Many people were subject to this same legal restriction prior to 6 January 2021, if they lived or worked in a Tier 4 area.
What does the work from home guidance mean in practice?
Although attending the workplace is no longer, in itself, a breach of the law, government guidance remains that, “You should continue to work from home if you can”. The guidance gives examples of people who should travel to their workplace if they cannot work from home, including “people who work in… critical national infrastructure, essential public services… [and] essential retail, such as supermarkets and pharmacies”. However, the guidance states categorically that, “You do not need to be classed as a critical worker to go to work if you cannot work from home”. The guidance encourages employers to take every possible step to facilitate their employees working from home, including providing suitable IT and equipment to enable remote working.
The guidance does not clarify what is meant by, “work from home if you can”; for example, does it mean that anyone with a role that can primarily be performed using a personal computer and phone can work from home? Previous versions of government guidance have required “everyone who can work effectively from home should do so” (our emphasis). Some interpreted this to mean that people could attend their workplace if, for example, they worked more efficiently there compared with at home (those workers without adequate home working facilities or who were more easily distracted at home). By omitting the word, “effectively”, the latest guidance appears to take a tougher stance on working from home. It suggests that that those who can work from home would be in breach of the guidance if they choose to attend the workplace simply because they work more efficiently there.
Are there any permitted exceptions to the requirement to work from home?
The government has previously recognised that, while the intention is for the large majority of the working population to work from home, there may be “specific reasons why attendance in the workplace may be needed” including mental health issues or concerns. The government has not publicly retreated from this position and, given the roll-out of the vaccine and the implementation of workplace testing making the workplace a generally safer place, it is likely that the guidance to work from home is intended to accommodate a few limited exceptions. This being the case, employers will still be left grappling with whether their employees’ situations fall within a permitted reason for workplace attendance. For example, will employers be expected to identify when an employee’s frustration or isolation when working from home, develops into a more serious mental health issue?
What should employers consider before allowing staff to return to the workplace?
Although there is no longer a legal requirement to work from home, employers should pause for thought before permitting staff to attend their workplace. Employers should be mindful of the reputational risk of allowing employees to return to the workplace, if they have acted in breach of the guidance. A subsequent outbreak of COVID-19 at their workplace would present avoidable risk to the health and safety of other staff who may be unable to work from home and to the wider community. That said, employers have a duty of care to their staff and are required to provide a safe system of work, so should give equal consideration to any employees who indicate that working from home is negatively impacting their mental health. This may involve permitting an employee to work in the office where others are refused permission. Employers should consider each request to return to the workplace on a case by case basis, and, where granted, keep a record of the reason for that decision.
Can employers force reluctant employees to return to the office?
If employees are able to work from home, employers should think carefully before issuing any compulsory instructions to return to the office. This may not only be a breach of government guidance but employers may risk costly employment claims such as whistleblowing claims and claims relating to breaches of health and safety.
Are face-to-face meetings permitted for those who can work from home?
Although it is no longer unlawful to attend the workplace, legislation imposes strict restrictions on what employees can do when they attend the workplace. Employees are prohibited from participating in a gathering of two or more people from different households, unless “the gathering is reasonably necessary…for work purposes." Our view is that purely social gatherings of colleagues indoors are, therefore, prohibited by law, including, for example, team lunches and after-work drinks.
Employers should also consider whether gatherings between employees, and between employees and clients or other third parties, meet the “reasonably necessary… for work purposes” test. It is unclear whether, in order to meet this test, employers will need to show that the meeting or event could not have taken place remotely, or whether the test is met simply by showing a sufficient business reason for the meeting. Given that breaching the restrictions on gatherings is a criminal offence, employers may want to err on the side of caution and take a conservative approach when assessing whether a meeting or event is reasonably necessary for work purposes.
How do the changes affect clinically extremely vulnerable members of staff?
What is the latest guidance for clinically extremely vulnerable employees?
The latest government guidance published on 29 March 2021 states that, “If you have been identified as being clinically extremely vulnerable you are strongly advised to work from home because of the risk of exposure to the virus. If you cannot work from home, then we advise you do not attend work” (our emphasis). Those employees who are clinically extremely vulnerable to COVID-19 (CEV) who cannot work from home are advised to, “speak to your employer about taking on an alternative role or change your working patterns temporarily to enable you to work from home where possible.” If arrangements cannot be made for the individual to work from home, the guidance says that the employer may be able to furlough them, or they “may be eligible for Statutory Sick Pay (SSP)” with the formal shielding letter acting as evidence to support eligibility for SSP.
However, from 1 April 2021, the shielding programme will be paused. In a reference-only version of letter to all people on the Shielded Patient List, published on 18 March 2021, the government confirmed that, “from 1 April 2021 you are no longer advised to shield… Everyone is advised to continue to work from home where possible, but if you cannot work from home you should now attend your workplace.” In view of this, we can assume that the government’s guidance will be updated with effect from 1 April 2021, removing the advice for those CEV employees who cannot work from home not to attend the workplace, and also to remove entitlement to SSP.
How should employers manage CEV employees after shielding is paused?
Government guidance and ACAS guidance make clear that, from 1 April 2021, employers should make every reasonable effort to enable a CEV employee to work from home. Employers should begin discussions with CEV employees as soon as possible about plans to return to the workplace. Where a CEV employee cannot work from home, they should only be permitted to return to the workplace where it is safe for them to do so. Employers should put extra measures in place to keep CEV employees safe at work, which may include offering them, on a temporary basis, a safer alternative role or adjusted working patterns. Employers should also consider if reasonable adjustments are necessary for any CEV employees who are disabled.
Where it remains unsafe for a CEV employee to return to the workplace, despite extra measures put in place to protect them, it may be possible for the employer to furlough the individual under the Coronavirus Job Retention Scheme, which has been extended until 30 September 2021.