Our frequently asked questions on returning to work
Whilst the current guidance is still for people to work from home where they can, in light of the Government’s Roadmap, there is a possibility that this guidance could be changing in the imminent future.
We have set out below some frequently asked questions if you are thinking of what factors you should be considering if you are now looking to open up your offices and requiring your employees to return to work.
I am thinking about opening my offices once we are allowed to do so. What should I be thinking about from an employment perspective?
Unless you have already done so, it is vital that you conduct an risk assessment over your premises to see what measures need to be implemented to make them more COVID secure as it is likely that COVID secure measures are going to be in force for quite some time.
We recommend continually checking the government guidance on maintaining COVID secure workplaces as it is likely that this guidance will be continually changing as we progress through the roadmap. We anticipate that the Government is going to continue to take a cautious approach.
Once you have completed your risk assessment and formulated your plans/actions, communicate this with your employees and seek their views to try and make this a collaborative process.
Is flexible working likely to be the norm?
There has definitely been a bit of debate on this which has been reported in the news with polar opposite views of whether flexible working is now going to be the norm. Indeed at one end of the spectrum, the boss of Goldman Sachs David Solomon has rejected remote working as a “new normal” and labelled it an “aberration” instead.
There is currently no pending legislation changing the current regime regarding flexible working, which allows employees with at least 26 weeks' continuous employment to make a request for flexible working under the statutory scheme for any reason.
From a commercial perspective, consideration needs to be given as to whether you will be requiring employees to return to the office once the guidance changes, or whether you are happy for the employees to retain an element of flexible working, whether full-time or as a hybrid of working from home and in the office.
If you are looking for employees to return to the office once the guidance changes, consideration should be given as to how to approach any request for flexible working you may receive from your employees seeking to make agile working more permanent. Whilst technically the grounds allowing employers to refuse a request are quite wide, the reality is that employees have been working at home for over a year. Therefore, in order to minimise the risk of any discrimination complaints which could arise from employees whose requests have been refused, evidence should be produced illustrating why any request should be refused.
If you are looking to implement agile working on a permanent basis, consideration needs to be given as to whether employment contracts need to be changed to reflect this (such as place of work terms) and the implications of that change. For instance do you agree to pay expenses should employees commute from home to the office?
I am looking to open up and require my employees to attend the workplace but some are refusing. What do I do?
The first thing would be to find out from the individual the reason for the refusal or reluctance to come into the office.
This is because if the reason for the refusal is because they have a disability which may be exacerbated or impacted on by COVID-19 or they are associated with someone who is extremely clinically vulnerable, then this we are into the area of disability discrimination (such as the duty to make reasonable adjustments).
If the reason is not disability related, but is related to concerns they may have towards their health and safety, then you will need to bear in mind, that employees and workers have protection from being subjected to detriment (such as disciplinary action or dismissal) if the reason for the refusal to return to the office is because they reasonably believe that there is a serious and imminent danger to their health and safety.
In light of the above, to mitigate such risks:
- Consider whether you have conducted a risk assessment and implemented measures to make the workplace COVID-secure, in particular whether you have communicated this with your employees. Sometimes, concerns can be alleviated by discussing with the employees the proposed changes to show them that all measures have been put in place to protect their health and safety.
- Consider whether it is possible/reasonable to implement other options, such as homeworking or implementing other measures for that particular employee to make the workplace more COVID secure or transfer to a more secure COVID role. Should any complaints arise, Tribunals would be looking to see whether as an employer you considered alternative options and if they do not work, why they do not work. Just because the individual was working from home previously (as the company was forced to do so due to the COVID-19 pandemic) does not mean it is now longer appropriate because of a change in circumstances.
- Ensure that all communications and consideration of options are documented.
Get in touch
If your business needs legal support with any issues arising from COVID-19, please get in touch with Priya Magar.
All information in this update is accurate at the time of writing. It is meant for general information only and is not legal advice.