Key legal considerations for returning to the office from 1 August
With government guidance on working from home set to change from the beginning of August, Colin Leckey, Partner, and Helen Coombes Lewis, Associate both at Lewis Silkin LLP share their thoughts on the likelihood of a grand office reopening across the UK.
The government has announced that the official guidance to work from home where possible is to change from 1 August 2020. Employers will now have discretion to ask employees to return to their workplace, provided they have taken steps to ensure the workplace is Covid-19 secure.
This may sound momentous, but many workplaces have long been open and some never closed – particularly those occupied by employees who can’t work from home. There have also been widespread reopenings on a smaller scale, such as for people who face specific difficulties working remotely and can commute without using public transport.
The latest announcement is essentially about ‘everyone else’ – the city-centre commuters whose spending props up many an Itsu and Paul. Many employers have already been working on getting their offices ready for a return, figuring out what steps to take and what kind of occupancy level they can sustain.
From 1 August, employers have three options:
- Continue homeworking (while allowing those with individual remote-working issues to return)
- Reopen the office with optional attendance
- A mandatory return to the office
Employers would be ill-advised to regard the change in guidance as a klaxon call to require all employees to be back at their desks on 1 August, or even for some time afterwards. The legal risks for employers are considerably lower if a return to the office is optional, and lower still if employers assess their workforce on a case-by-case basis.
Employers can expect arguments from worried employees that they are being asked to put themselves at risk by travelling into work.
Health and safety
Employers reopening need to be able to demonstrate what steps they have taken to ensure the safety of those attending their workplace and comply with the specific government guidance for their sector. While many employers have already used lockdown time to put plans in place, the need for social distancing means that offices simply cannot accommodate usual capacity – especially those that rely on a small number of lifts.
If employees feel they would not be safe coming into their workplace, they have a legal right to refuse to return in situations of ‘serious and imminent danger’. The application of this provision in the midst of a global pandemic remains unclear, but employers can reduce the risk of employees seeking to rely on it by, for example, communicating their health and safety policy and explaining how the dangers of spreading the virus will be controlled.
In this context, the issue of face coverings has attracted considerable attention. The government has made clear that it will not be making it mandatory to wear masks in the office (as it is on public transport and in shops).
Rather, employers should do their own risk assessment to decide whether face coverings should be worn in their workplace. In some circumstances, they may be marginally beneficial as a precautionary measure and may also offer an element of reassurance. Employees who choose to use face coverings should be supported to do so safely, but employers should not rely on this as a risk management strategy.
The government has relaxed public transport restrictions, although concerns over using it have far from disappeared. Employers can expect arguments from worried employees that they are being asked to put themselves at risk by travelling into work.
Public transport is a huge issue for cities like London, where over 80% of those working in the centre rely on it. Whether or not commuting is covered by health & safety legislation is, for the time being, a grey area.
Even if employers scrupulously comply with the guidelines, they still face inevitable employee discontent at a forced return and the possibility of employment law claims.
The shielding advice for those who are ‘clinically extremely vulnerable’ is set to end on 1 August, when it is expected that employers will need to treat such employees as ‘clinically vulnerable’. The Covid-19 secure workplace guidance advises employers to provide vulnerable employees with the safest available on-site roles or, if such roles are not available, consider whether the level of risk is acceptable. In situations where employees have been able to work from home successfully, questions about the level of risk become more overt.
While an employer’s duty of care for an employee does not extend to their family, the scope of the employer’s responsibility for an employee who lives with an extremely vulnerable person remains untested.
The official workplace guidance states that employers must pay particular attention to those who live with a vulnerable person. Again, the risks involved are particularly nuanced for homeworkers given they will have spent the last four months working remotely.
Employees with caring responsibilities may be unable to comply with a request to return to the office if their usual care arrangements have been affected by coronavirus. This will become particularly acute if local lockdowns start to become more frequent.
If employers require employees to return to the office when they have previously been able to balance their caring responsibilities with successful homeworking, there is a risk of potential indirect discrimination claims.
Proceed with caution
Even if employers scrupulously comply with the guidelines, they still face inevitable employee discontent at a forced return and the possibility of employment law claims. It is therefore doubtful that there will be any large-scale return to work anytime soon.
In addition, several employers have been canvassing employee views about future working arrangements, with results generally showing they do not want a full-time return to the office. Businesses may feel they are facing an entirely different future to the one they were contemplating at the start of this year.
Many employers will therefore be seeking to mitigate risks, either by not requiring employees to return to office-based roles or giving them a free choice on whether to do so. As we have already seen in the retail sector, there are reputational as well as legal risks for those that take a different approach.
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Colin Leckey is partner at law firm Lewis Silkin specialising in employment law. He draws his clients from all industry sectors, but has a particular focus on financial services, professional services and technology. He also acts on occasion for senior executives and partners.