Time to get back to the office?

While official advice is still that those who can work from home should do, this is expected to change in July. Companies need to make a decision on whether staff will simply be expected to revert to their old ways of working or, whether they will take this opportunity to do things differently. For example, by introducing some form of hybrid working where staff only come into the office on certain days or, even allowing flexible working to continue indefinitely.

Many employers may already have let office space go. If old places of work are no longer available then contractual changes to employment terms (which will need agreement from affected employees) will need to be made.

If staff are going to return then when and who will return to the workplace? Will one rule apply to all (for example, Goldman Sachs have said they expect their entire workforce to go back to the office) or, will different policies apply to those working in different parts of the business? Will you expect everyone to follow the policy or will managers have the discretion to deviate where appropriate? Will any return be staggered and if so, how will this be done?  

Once you know what your policy is going to be, start talking to your workforce about it so that everyone knows what is expected of them. Listen sympathetically to any concerns raised and address these up front, incorporate solutions into planning where you can.

Given the uncertainty and anxiety caused by the coronavirus pandemic, companies may find themselves struggling to deal with employees who have become highly cautious and risk adverse. They may also have individuals who are clinically vulnerable (or extremely vulnerable) or live with those who are. Both groups may, understandably, be reluctant or, may even refuse to return to the workplace. 

The individual circumstances of each case will need to be assessed. There may be relatively simple and cheap measures you can put in place such as allowing someone to work different hours to reduce contact with others or, providing a dedicated parking space so they don’t have to use public transport, that will allay fears.

The key for companies is to communicate, communicate and communicate some more with the workforce to reassure them about the measures taken to keep everyone safe. They should be very slow to consider disciplinary action against reluctant returners as they will be legally protected against detriment where their concerns are safety based.

The CIPD has published some helpful practical guidance for employers on getting staff back to work. 

There may be other mental health issues for some around the return to work. Sign post any Employee Assistance Programme or other professional support available via work. Companies need to proceed cautiously as they will have to make reasonable adjustments for employees who are disabled as a result of a mental health impairment. Various charities, including MIND have put together a returning to work toolkit which provides some useful advice. Ensure staff are aware of all the steps taken to minimise COVID risks in the workplace to offer reassurance.

Companies have a legal duty to provide a safe place of work for staff. Making sure you are Covid secure will involve risk assessments and continued monitoring of what is likely to be a changing situation. 

Following government guidance for your particular sector is a basic requirement. The Health and Safety Executive has published guidance on its website. Ensuring adequate ventilation is one of the most effective ways of stopping the spread of the virus. Make sure everyone knows what is required re: use of air conditioning and keeping windows open etc.. Other measures may also be relevant such as use of protective equipment and enhanced cleaning. ACAS also has some helpful advice for employers on its website.

It will be extremely important to communicate any new rules to all staff effectively so everyone knows what is expected and disputes can be avoided. In most cases it should not be necessary to test staff for coronavirus at work. However, where an employer is considering implementing a policy to allow this, it should first consider the relevant ACAS guidance. 

Many in the workforce will have been fulfilling their roles very effectively, in different ways during the pandemic, most obviously by working remotely. As a result, individuals may expect to continue working from home more, even if this is not something the company is encouraging. Companies are likely to struggle to refuse flexible working request in the future if an employee can show they have been performing their role well from home.

The government has recently said it will require all frontline staff working in adult social care to have a coronavirus vaccination and some private sector employers had also said the same (e.g. Pimlico Plumbers). But, outside of the health and social care sectors, such a policy is fraught with problems. Not least, health information is highly protected under data protection law so gathering data on staff vaccination brings compliance risk. In most sectors, it seems unlikely that employers will be justified in enforcing such a requirement and may not wish to given the risk of indirect discrimination claims.