Senior Associate Stevens and Bolton
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'Freedom Day': Key considerations for planning a gradual return to the workplace

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England's 'Freedom Day' means the vast majority of Covid-19 restrictions have now been lifted. With soaring infection rates, 'pingdemic' chaos and reintegration anxiety, however, organisations must be extremely careful with how they roll out plans to return to the physical workplace. Lloyd Davey, partner, and Sarah Taylor, senior associate at Stevens & Bolton LLP highlight the key considerations for employers.

19th Jul 2021
Senior Associate Stevens and Bolton
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The UK's Prime Minister Boris Johnson has confirmed that England will enter step four of the government’s roadmap today. The government is no longer instructing people to work from home if they can, but expects and recommends that employers plan for a gradual return to workplaces over the summer. Given the legal risks and practical challenges involved, companies would be wise to follow the government’s advice.

In preparation for a return to traditional workplaces, employers should expect a range of differing perspectives across their workforce.

Employers are likely to encounter a number of disparate groups within their workforce, with some enthusiastic about returning to the workplace and others incredibly anxious, perhaps even point-blank refusing. How can employers sensitively manage a gradual transition back to the workplace, while avoiding the legal pitfalls and mitigating any negative impact on employee engagement and morale?

Anxious about contracting Covid-19

Despite the success of the vaccine rollout, many employees, including pregnant women and immunocompromised individuals, remain vulnerable to Covid-19 or are living with vulnerable family members. Given that vaccination does not eliminate the risk of transmission and infection, everyone remains at risk of illness and long-Covid. As such, a few employees will likely have genuine concerns about the risk of contracting Covid-19 if they return to the workplace.

Previous Health and Safety Executive guidance advised employers to take every possible step to enable those who are clinically extremely vulnerable (CEV) to work from home. This guidance has now been lifted. From today, employers are simply encouraged to talk to CEV workers who are returning to their workplace, so they “can explain the measures being taken to ensure where they are working safely”.  Given the rising infection rates, however, employers should think very carefully before requiring CEV employees to return to the workplace, especially those who have performed their roles remotely for a significant length of time.  

Employers should also consider carefully before taking action against employees who refuse to return to the workplace because of concerns about contracting Covid-19. Those who reasonably believe that a return would place them or others in serious and imminent danger may be able to claim automatic unfair dismissal.  

Mental health challenges

After lengthy periods of relative social isolation, the prospect of returning to a busy commute and a crowded workplace may also 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 the change.

Employers need to consider ways to support such individuals in returning to the workplace and consider adjustments where appropriate, which may include continued remote working or varying working hours to avoid busy times.

Lifestyle reluctance

Many employees have embraced the advantages of working from home and will be reluctant to return to the workplace. Some may have relocated a distance away, acquired a new pet, become accustomed to more time with family, or are enjoying more time for hobbies and exercise. Employers should consider carefully their reasons for requiring such employees to return to the workplace, which may be linked to productivity, development and collaboration, and ensure that these reasons are clearly communicated. It would also be sensible to give employees reasonable notice of any return date.

Employers should consider any refusal to return to the workplace 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.

Employees with 26 weeks’ service have the right to submit a flexible working request to change their contractual place of work. Where an employee has been able to perform their role successfully for a lengthy period, it may be more difficult for an employer to substantiate a reason to refuse their flexible working request.      

Eager to return immediately

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. Employers should, however, 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. Before allowing any employees to return to the workplace, an employer should conduct a thorough health and safety risk assessment and follow the government’s new guidance on working safely during coronavirus (Covid-19), which sets out a number of precautions to manage the risk of Covid-19 spreading in the workplace.  

Having assessed the risk of Covid-19 in their workplace, some employers may consider it necessary to require staff to wear facemasks in communal areas and maintain some social distancing.

In preparation for a return to traditional workplaces, employers should expect a range of differing perspectives across their workforce. The pandemic is far from over and the risk from Covid-19 remains very real to many people.  There is also no denying that the pandemic has caused a seismic shift in how we work, and a return to old ways of working may be ill conceived.

Interested in this topic? Read Three ways to ensure re-entry anxiety doesn’t escalate into a toxic work environment.

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