Employers cannot insist on office working, lawyers have said, while businesses call for clarity after lockdown.
Many people have spent much of the last 12 months or more working from home as the Covid-19 pandemic took hold and social distancing measures were put in place. As the UK continues its path to ease out of lockdown, more restrictions have been lifted this week, with people now being able to meet indoors.
However, law firm DMH Stallard said that despite the reduction of restrictions, employers do not have an absolute right to require employees to return to the office.
Rustom Tata, DMH Stallard partner and head of the firm’s employment group, said: “With so much of the working population still not having had the opportunity to be vaccinated and the relative uncertainty of the effectiveness of the vaccine in terms of reducing the rate of transmission, it would be a bold employer who just presses ahead regardless with a requirement for everyone to return to the office.”
The government advice in its ‘Roadmap out of lockdown’ is that the public is still advised to work from home where possible.
However, Beverley Sunderland, director and partner at Crossland Employment Solicitors, believes the matter is more complex. She said: “If an employee’s normal place of work is an office and if the employer has made the office Covid-secure in accordance with government guidance, then as soon as the ‘work from home if you can’ government guidance is lifted, employers can ask their employees to return.
“Employees employed for over six months can make a flexible working request to vary their place of work to home and this must be considered within three months by the employer and there are set reasons for declining the request. Given that employees have been working from home for the last 15 months, the employers have actual evidence on which to base decisions and the likely reason will be that flexible working will affect quality and performance – especially if they have to supervise others.”
Employees could refuse to return to work if they could show that their employer had not taken reasonable steps to make the workplace Covid-secure, said Sunderland. For those working from employers that had taken the necessary precautionary steps, the situation is different.
Sunderland cited guidance from ACAS, which makes it clear that a "failure to return to work could be a disciplinary matter".
The Chartered Institute for Personnel and Development said that employers must allow staff to work from home as much as possible and take an individual approach, considering physical, emotional and mental wellbeing of the workforce while monitoring government guidance.
Its guide for returning to the workplace stated: “With so much disruption from the pandemic, people’s expectations around work, how they fulfil their role, and how they reconcile work and domestic responsibilities may have changed dramatically.” The guide also said that workers should only come back to the workplace if it is essential, sufficiently safe, and mutually agreed.
Time to think creatively
CIPD said that now was an ideal time for employers to think more creatively about agile and flexible ways of working.
Tata at DMH Stallard said that the key would be for the employer to listen to the employee’s concerns to establish whether the employee has a good, objective reason for resisting.
“Most employees will want to return, partly as they have missed the office environment, and they won’t want to be left behind. However, those employers who are simply saying that they expect office life to how it was before will be either taking a calculated risk or may be unaware of the potential challenges that they face.
“Even for those returning to the office, we still await the government guidelines on social distancing within the office and, as now, employers will need to ensure that they provide a safe environment for their workers. The one caveat, is that a ‘safe’ environment is not the same as one which is wholly risk-free.”
Government guidelines on social distancing in the office were last updated at the end of March, and outline requirements for employers to protect staff and customers. These include completing a Covid-19 risk assessment, cleaning more often, requiring visitors to wear face masks and making sure social distancing is in place and providing adequate ventilation.
John Foster, director of policy at the Confederation of British Industry, said that it was encouraging that the roadmap remained on track, and there was some certainty for businesses. However, he called on the government to clarify outstanding issues, including social distancing, Covid status certificates and the future of workplace testing beyond June 21.
“Getting answers will help businesses cement the gains so far, laying strong foundations for the recovery, and support the planned full reopening of the economy without delay,” he said.
The British Council of Offices said that poorly ventilated indoor spaces have been linked to Covid-19 super spreader events, and has published a paper saying that ventilation in these offices must be “addressed urgently”.
Richard Kauntze, chief executive of the BCO, said: “Naturally, we’re pleased that offices can reopen soon. However, we want to make sure that the transition is as safe as possible. Offices should have a high standard of ventilation, not only to combat Covid-19, but also to aid the long-term wellbeing of workers.”