Director, Employment Team Walker Morris
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How to handle employee requests to return to the office during lockdown 3.0

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As we tough it out through the latest lockdown, employee wellbeing and mental health are more at risk than ever. What then, are the legal and moral responsibilities employers should weigh up when it comes to employees who want to return to the office? Lucy Gordon and Claire Burrows of Walker Morris discuss the implications for employers.

10th Feb 2021
Director, Employment Team Walker Morris
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During the first lockdown in March 2020, many employers who had to send employees home on short notice received requests from individuals wanting to return to the office, principally from those who relished the routine and relative stress-free atmosphere of the workplace.

It is critical that employers are mindful of the additional pressures placed on their workforce. 

Whilst applications had to be considered on a case-by-case basis (taking account of the nature of the employee’s role, whether it could be performed from home and whether the employee had any medical reasons for the request), it was, relatively speaking, an easier decision to make. After all, suitable precautions could be taken to minimise infection in an office environment, requests were likely to be few and far between and it was only likely to be a short-term arrangement.

Here we are 11 months later, however, and with the reality that the current lockdown may go on for longer than initially anticipated, plus an awareness of the greater transmissibility of new Covid-19 variants, can employers safely agree to such requests during the third lockdown?

Competing demands

The government's messaging for the moment is clear: ‘you may only leave your home for work if you cannot reasonably work from home’, and with no guarantees that the situation will have resolved in the near future, employers need to focus on measures that can be implemented longer-term, if required, to help employees manage the competing demands of home and work life whilst complying with the government guidance.

We know that enforced home working affects individuals very differently. For some, it may offer a very welcome degree of flexibility previously unobtainable. For others, the requirement to share a workplace with housemates, children or their partner, or to effectively be a ‘lone worker’, can add a significant amount of stress and disruption. The latest research indicates that this lockdown has significantly affected the latter cohort of employees. For example, mental health charity Mind has reported a surge of visits to its pandemic support page, seeing the second highest number of visitors since April last year. With that in mind, if an employee’s mental health is at risk due to the stresses or isolation from working from home, should a case be made to allow them back to the workplace?

wellbeing hub link

Employee welfare at home

Employers remain legally obliged under the Health and Safety at Work etc. Act 1974 (HSWA) to ensure the health, safety and welfare of their employees, regardless of where they are physically working.

Assuming that the employee’s role can be performed from home, but the employee’s clear preference is to return to the office, there are several challenges that the employer must balance in reaching a decision about what is reasonable.

Employers first need to consider whether they could be under a legal duty to consider the request. For example, if an employee is suffering from a disability, an employer has a duty under the Equality Act 2010 to consider making reasonable adjustments to an employee’s working environment to remove any disadvantages suffered by the employee as a result of their disability. Mental health conditions could well fall within this definition if they are sufficiently long-term and serious. The duty only applies to adjustments that are ‘reasonable’, however.

This legal duty will depend on how serious the employee’s mental health condition is, if they are at serious risk of harm, and whether or not the employer can provide a safe place of work in the current climate.

If there is no specific legal duty, the employer should consider if granting the request would protect the welfare of the employee under their HSWA obligations and then weigh the risk to the employee in remaining at home against the risk of the employee attending the workplace, where they are undoubtedly at higher risk of contracting Covid-19. If the risk of returning to the workplace cannot be suitably mitigated or outweighs the potential risk to an employee's welfare when working from home (particularly if other resources are available to support the employee), then it would not be appropriate for the request to be granted.

Setting up the right support network

Globally, mental health and wellbeing is one of the major issues HR teams currently face. According to a recent Paycor Report, a significant majority of organisations (86%) are concerned about mental health in the workplace, but nearly half (45%) are ‘not sure’ how benefits can address these concerns.

Additionally, of the 2,600 HR and finance leaders who took the survey, only 444 were able to identify specific benefits, like employee assistance programmes, that could help them respond to what they perceive as an ‘urgent problem’.

It is critical that employers are mindful of the additional pressures placed on their workforce and consider embracing solutions that may include flexible working on a more long-term basis, encouraging employees to communicate more, and offering training in coping strategies that may assist with the mental load of balancing work and home. HR forums can be a great resource for employers to share initiatives that they are adopting to counter these challenges, (along with Q&A sessions and webinars, like this one HRZone is hosting on how HR can strengthen trust, transparency and productivity in 2021).

Businesses looking for support and guidance can also visit the Walker Morris Future World of Work webpage. Based on a collaborative research project with Leeds University Business School, the resource kit explores how employers can manage the boundaries between work and home, how employees interact with colleagues in a virtual environment and the influence this has on their work satisfaction, productivity and general wellbeing

The imminent roll out of vaccines should give comfort to employers that an end is in sight, but these issues will remain crucial for the weeks and months ahead as we navigate through these uncertain times.  

Interested in this topic? Read The psychological pandemic: an opportunity for employers to aid recovery.

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