Posted: 30/09/2021
The way in which we work has been turned upside down by the Covid-19 pandemic. The requirements of the job and the needs of the individual worker are both important factors in deciding where someone does their work. This is not by any means a settled matter and, over the next couple of years at least, we should expect to see some answers to the question of what the modern office will look like.
For now, employers should be aware of the following:
Ultimately it is the employer’s decision as to where employees carry out their work but the culture of the workplace is changing. Most firms will be expected to offer increased flexibility both in terms of working patterns and place of work. Regardless of the law, staff retention will be a core issue.
Predictions of empty city centres and office blocks are unlikely to come true. There are many positives about the traditional workplace and we should expect offices to fill up as we move out of the pandemic, as most staff return to them, just on a more flexible basis.
The Government has in any event established a taskforce which recommended allowing employees the right to work flexibly. The Government is now consulting on providing employees with the right to ask to work flexibly from day one of employment. Notwithstanding this, the pandemic has made hybrid working much more normal. Many jobs will require people to be in the office at least some of the time. However, the right to request flexible working from day one is expected to make hybrid or agile ways of working, in which a job can be on a full time basis but, for example, from home or partly outside of normal office hours, very difficult to deny.
For now the latest Government guidance on working during the pandemic states:
‘We recognise that ways of working have shifted through the pandemic, and many employers are looking at future hybrid models which include an element of home working. Whatever model you choose to follow for the longer term, you should discuss it with those who might be affected and also with employee representatives.’
ACAS has also published advice on hybrid working, stating that it can:
The latest government guidance on working in an office and how to make that office as safe as possible is here. The guidance states:
“As workers return to their workplaces, employers should continue to follow the Working Safely guidance. When considering a return to the workplace, employers should:
You should discuss a return to the workplace with workers, and trade unions to make working arrangements that meet both business and individual needs.
You should remain responsive to workers’ needs and continue to use measures that help to reduce the risks to individuals in the workplace, giving extra consideration to people at higher risk and to workers facing mental and physical health difficulties.
The employer can insist on a return to the workplace, but again the new culture must be borne in mind. An employer would be advised to consult and discuss with staff prior to any such instruction.
Employers are also obliged to provide a safe workplace, which includes carrying out risk assessments and consulting with staff.
Unfair dismissal
Normally, an employer can require that a fit and healthy employee returns to the workplace. Ultimately, a dismissal can take place fairly if this is seen as a reasonable instruction that is refused by the employee after warnings. Conversely it can be an automatically unfair dismissal if the employee is dismissed for refusing to attend work where they reasonably believe that there is a serious and imminent threat to their health and safety.
Covid continues to present a serious danger to some people, albeit the category of shielding has now ceased to exist (it was previously paused). Whether there is a ‘serious and imminent danger’ will depend on the facts of each case. Employers should ensure that they have followed best practice in making the workplace safe prior to any final instruction that an employee is to return to work or face disciplinary action.
ACAS guidance should also be followed. Core points from this guidance are that an employer should:
A similar approach is recommended by the CBI.
If, having taken these steps, the employee still refuses to attend the workplace, then the employer may consider moving to dismissal. The employer would need to show clear objective evidence that the job cannot be done from home, or cannot be done any longer from home. One of the most likely counters will be ‘but I have worked well so far from home’. It will be necessary to show why things cannot continue like this. A dismissal could then be justified for ‘some other substantial reason’ or even misconduct if the employee is refusing to obey a reasonable management instruction.
Discrimination
Some employees will claim that a rigid requirement to work full-time in the office is indirect sex discrimination owing to childcare or other family commitments because these are known to affect more women than men. The developing debate around the benefits of home working against the need, particularly for junior staff, to be part of an actual (as opposed to a virtual) working environment might be relevant here but good specific grounds for requiring a return will be needed. To some extent this will reflect the existing debate on part time work for maternity leave returners – where an employer or employee insists on having it all one way, they are less likely to be able to show that their view is a proportionate one. Again, an employer that adopts a balanced agile working policy is likely to be in a good position to address any issues as they arise.
As for disability discrimination, if an employee has a medical condition that means that a return to the workplace (or use of public transport) puts them at higher risk, then any justification by the employer will need to be more robust. In effect, the employer must show that the job cannot be done properly other than, at times, from the office. The employer will be entitled to request a medical report from the employee in order to determine why they cannot work from the workplace, or can only do so with adjustments.
Public transport
Many people are worried about having to take public transport, particularly crowded trains and buses and the London Underground. The Government advises travel at off-peak times, and this fits in with the above advice about limiting infection in the office through staggered arrival times.
Whistleblowing
Someone who raises a specific health related concern about returning to the office is likely to be a whistleblower ie they will have made a ‘protected disclosure’ about health and safety matters that is in the public interest.
It will be important not to subject that person to a detriment for having raised the concern, however frustrating it might be. People will be nervous about returning to work, particularly where public transport is involved. As above, discussion and reassurance are the best way forward.
For those people who still refuse to attend the office, if they are disciplined or dismissed, it will be important to emphasise that this is because of the need to return to the office, not because of their response to the employer’s request (even if that objection was intemperate). Otherwise the employer will be handing the employee a claim that they suffered a detriment and/or were dismissed for making a protected disclosure. In practice the distinction may be a difficult one to make.
Vulnerable people
Those who are in the higher risk groups are no longer advised to shield but they are likely still to have valid concerns about the return to the workplace. A refusal to attend the workplace might be more likely to be based on a reasonable belief of a serious and imminent threat to their health and safety. These individuals may also have a disability and therefore come under the protection of the Equality Act. Best practice would be to seek medical evidence where appropriate and consider whether any additional workplace measures, including working from home, at least while the pandemic is still extensive, might be a ‘reasonable adjustment’ to take as their employer.
Mental health
Someone with long term mental health issues may fall under the protection of the Equality Act in which case the considerations above need to be applied.
In any event, the mental health and wellbeing of staff will be all important. Regular information and support will be essential. Everyone will have found the last year a challenge for their own personal reasons and many people will be apprehensive about the return to work. Have a plan in place, involve your staff and keep conversations going. Ideally have internal and external wellbeing assistance structures in place and publicise these to staff.
Vaccination
Being vaccinated is not compulsory. In the vast majority of workplaces it will therefore be unlawful to force employees to be vaccinated.
There may be limited exceptions to this, for example, where an employee is working in close proximity to particularly vulnerable individuals (eg a care home). In view of this, the Government has announced that vaccination will be compulsory for those working in care homes (subject to exemptions on medical grounds) from October, and they are consulting on whether this should be extended to other health and social care settings.
Outside of the care sector, requiring employees to be vaccinated would be very risky. At the very least, it would need to be carefully thought through. Employers could face claims of unfair dismissal if they terminated an employee’s employment for refusing the vaccine or claims of constructive unfair dismissal if employees resign as a result of pressure from their employer to be vaccinated.
In addition, discrimination claims could arise, where, because of a ‘protected characteristic’ (race, sex, disability, religion or belief, age, pregnancy and maternity, marriage and civil partnership, gender reassignment, and sexual orientation) an employee or worker is dismissed or treated less favourably because they have refused to be vaccinated.
We would advise that employers make a very careful written risk assessment of the risks and benefits if they require employees to be vaccinated. A strong written justification and consultation with employees would then be necessary before seeking to embark on a policy of making vaccination a requirement. Even then, such a policy would need to be flexible enough to balance the above risks, and allow for exemptions on medical or other ‘protected’ grounds. Taking these steps might provide a defence against a discrimination claim, but would be a very risky approach.
Therefore where special circumstances do not apply, we would advise a policy of educating employees on the benefits of being vaccinated, rather than introducing a policy of mandatory vaccination.
Testing
The Government encourages employers to test employees in the workplace. This will become more of an issue as a greater number of employees return to more regular work. The Government has published guidance on workplace testing, which can be found here.
Testing employees before they come to work, or at work is not mandatory, but is likely to be easier to justify than requiring employees to be vaccinated.
An employee must clearly agree to be tested – they cannot be tested against their will. It is possible, though unlikely, that there may be a term in their employment contract that requires them to undertake medical tests.
Employers who would like to test their employees need to ensure they have undertaken a careful risk assessment so they can justify the need to test in the workplace – to ensure the health and safety of the employee and of the other staff. If staff then refuse to be tested, employers will have a strong basis to consider taking disciplinary action.
When considering disciplinary action, it will, however, always be important to investigate the reasons for the refusal and consider carefully if it is because of any medical reason or protected characteristic.
If not, then provided the risk assessment is sound, refusing to take a test could well justify a disciplinary sanction for refusing to follow a reasonable instruction.
Overseas travel
The current guidance regarding overseas travel for England can be found here.
The rules are slightly different if you are arriving back from overseas to England, Wales, Scotland or Northern Ireland.
Employers should consider creating a policy for overseas travel in relation to business and for holidays whilst these restrictions are in force, although any such policies will need to be monitored carefully as the rules frequently change, and on little notice.
Some roles which cannot be done from home will be impossible to do if travelling back from red list countries where self-isolation is required.
Employers will have to consider whether to allow travel to red countries, or to allow only for certain specified reasons (for example, non-holiday travel for essential reasons) with the isolation period being taken as unpaid or part of the holiday allowance. Provided the policy is reasonable, applied fairly throughout the workplace and clearly communicated to employees, it will be difficult for them to challenge.
Failure to abide by a reasonable policy could then lead to employees being legitimately disciplined, and potentially dismissed.
Working overseas
Where work can genuinely be done from home, and the employer is willing to agree to that on a full-time basis, it is possible that the employee may wish to work from an overseas location. This gives rise to a number of issues for employers.
Before allowing such a request, employers will need to consider a number of legal and tax issues, as well as the obvious practical factors and is likely to need local advice.
See our employment alert – (Working from) home thoughts from abroad.
Although it appears, for now at least, that the restrictions imposed by the pandemic are coming to an end, the reopening of workplaces poses a number of challenges for both employers and employees. What is clear is that, with many of us having benefitted from a new way of working over the past 18 months, the workplace is unlikely to be the same as it was prior to 2020, with more employees likely to seek a hybrid approach. Employers that take a flexible approach to reopening the workplace, and engage with their employees about new ways of working, are likely to benefit from greater employee satisfaction and ultimately more success in the post-pandemic workplace.
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