Following on from Furlough: the new Job Support Scheme
Employers who were preparing for a return to the workplace (and who may have been requiring their employees to do so) may now be left wondering what to do.
How did we get here?
The Government’s guidance during the height of the pandemic (and beyond) was that people should work from home if they could and that employers should help their employees to do so. The Government’s “Five Steps for Returning to Work Safely” guide (which was recently removed from its website) expressly stated this. However, the position changed over the summer as the infection rates seemed to indicate that the virus was under control.
The idea in August seemed to be that, since lives were now “safe” (or certainly safer than before), attention could be turned to “livelihoods” and getting the economy up and running again. Incentive schemes like “Eat Out to Help Out” were introduced to encourage people to go out and spend, thereby helping the hospitality industry which had particularly suffered during lockdown. Similarly, as it became increasingly clear that the situation on high streets and city centres was not improving not least because office workers remained at home, people were being encouraged to return to the workplace, provided employers made their workplaces ‘COVID-secure’ by complying with the relevant guidelines.
In line with this new messaging, the “Five Steps for Returning to Work Safely” guide (including step three which was to facilitate working from home) was removed from the Government website on 9 September 2020, as was other wording that seemed to suggest that working from home was the favoured option. The new Guidelines on the “Rule of Six” (as at 14 September 2020) stated, in relation to working, that it was at the discretion of employers how staff could continue to work safely and that employers should decide, in consultation with their employees, whether it is viable for them to continue working from home. In other words, employers had more flexibility and a firmer ability to require employees to return to the workplace. In line with that, an increasing number of employers, including City organisations like Goldman Sachs and JP Morgan, were beginning to encourage their employees to go back into the workplace and looking at introducing procedures for them to do so.
The Government’s encouragement seemed to be working and it was reported that, by 17 September 2020 (just last week), nearly two-thirds of workers were commuting again. However, this may be short-lived. Less than a week later, in response to the sharp increase in the infection rate and, looking at what was happening in our European neighbours like Spain and France – and remembering that the UK was only a few weeks behind them in the Spring – the Government is now putting in place the measures announced on Tuesday (22 September) in an attempt to address rising cases of coronavirus in England and to control the danger to lives (although the Government was also at pains to stress that these restrictions are not a return to the lockdown we had in March).
The current message from the Government is clear - office workers who can work from home effectively should now do so and anyone else who cannot work from home should go to their place of work.
In light of this new approach, it is likely to be harder for employers to require employees to return to the workplace, notwithstanding the steps they may have taken to make their workplace COVID-secure in line with the relevant guidelines (which are becoming law for businesses in certain sectors).
Employers need to think carefully before requiring employees (who can otherwise work effectively from home) to return to the workplace and consider why this is necessary and the business reasons for it. Some employers may cite concerns, for example, regarding supervision of junior staff or the possible negative impact on performance of sustained working from home. Although these are legitimate concerns in principle, employers should consider why they cannot be addressed in other ways (through regular remote check-ins with managers, for example), particularly where employees have worked from home effectively previously.
Given the new Government guidance (and the sharp and continuing rise in positive cases of COVID-19), employees are more likely to be able to resist a return to the workplace, particularly if they have a reasonable belief that doing so would result in serious and imminent danger to their health (for example, due to the risk of contracting Covid-19). Disciplining or dismissing employees who refuse to return to work citing such concerns could result in claims against the employer, including for victimisation or automatic unfair dismissal for which the compensation would be uncapped.
As noted in our recent article on return to work following lockdown, employers should also be mindful of their potential exposure to personal injury claims from employees who are effectively “forced” to return to the workplace and contract COVID-19 as a consequence. One could see how such claims may carry more weight in circumstances where the advice from the Government is for people to work from home if they can and allowing them to do so would be an obvious way for employers to mitigate the risk of infection/transmission.
If an employer is adamant that employees cannot work effectively from home so there is a real business need for them to return to the workplace, then it must, at the very least, ensure that it has complied fully with the relevant Government guidelines to make its workplace as COVID-secure as possible. It should also be clear as to why employees cannot work effectively from home and there is a business need for them to return to the workplace notwithstanding the current guidance. Employers should also consult with employees to understand and try to address any concerns about returning to work. Although disciplinary action, including dismissal, is open to an employer who feels it has done all it can to address concerns and make its workplace Covid-secure but whose employees are unreasonably refusing to return to work, we would suggest that this should be the very last resort after having taken legal advice.
Given the Government’s indication that the current restrictions are likely to last six months (if not longer), it looks like working in the “home office” will continue to be the “new normal” for the foreseeable future and employers would be well advised to make plans on that basis.
If you have any questions or concerns regarding the topics covered in this blog, please contact any member of the Employment Law team.
Bina specialises in successfully extricating senior executives from difficult situations at work (with particular expertise in dealing with workplace bullying, harassment and discrimination). Bina is a tough negotiator and regularly secures valuable exit packages for senior executives as well as substantial financial settlements in litigation.
Özlem Mehmet is a Professional Support Lawyer in our Employment Team. Before joining Kingsley Napley, Özlem was a Tutor and Team Leader at BPP University’s Law School, teaching on the Legal Practice Course. She taught the Employment Law, Business Law & Practice, Corporate Finance and Equity Finance modules of the course, as well as the skills modules of Interviewing & Advising and Professional Conduct & Regulation. She also supervised a number of Masters level projects on employment law related topics.
Prior to teaching, Özlem had over ten years’ experience working as a solicitor in private practice specialising in employment law (first having trained and qualified at Slaughter and May and then working at Fox Williams LLP).
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