The Prime Minister yesterday announced that, subject to a final review of data on 12 July, it will no longer be necessary for people to work from home after the 19 July. Yet with daily cases predicted to potentially go as high as 100,000 once all restrictions are lifted, many people may be reluctant to return to the office.
This could put employers in a difficult position as they try to balance following government guidance to encourage staff back to the office, with the very valid concerns that some employees may still have about returning to the workplace, especially in the light of the current new variants of the delta strain and any new strains and variants.
The Government is keen to help those businesses in city centres which rely on commuters for trade, as well as cut the cost of government support such as the CJRS. However, the perceived removal of all guidance for businesses has resulted in some backlash from trade unions and business groups, especially in terms of potential issues surrounding the removal of the legal requirement for mask wearing and social distancing. The Labour party have called for a proper plan because there is a sense that a sudden removal of all restrictions will fly in the face of the data.
There has been concern from some organisations about what their legal liability might be if they remove safeguards and then see an increase in cases of COVID-19 among workers. In addition, other businesses are unsure how to approach issues with employees who refuse to return to the workplace due to concerns about the virus. Would they have a case to claim unfair dismissal if their employment was ultimately terminated for refusing to come into the office or leaving their desks or work stations?
So, where do employers stand and what can they do to ensure they are appropriately balancing the needs of their business with the needs of their employees?
The current guidance says employers should complete a COVID-19 risk assessment and take steps to prevent transmission, such as:
- Minimising unnecessary visitors
- Ensuring 2m (6ft) social distancing, or 1m social distancing with additional precautions
- Frequent cleaning
- Extra hand washing facilities
- One-way systems to minimise contact
- Using back-to-back or side-to-side working (rather than face-to-face) whenever possible
- Staggering start/end times
It would certainly be sensible, dependent on the working environment, for businesses to consider keeping all or some of these processes and procedures above, even post 19 July, to demonstrate they are committed to keeping all employees as safe as possible. It is worth noting that it still remains a legal responsibility to keep employees safe at work.
Lateral flow tests are also readily available and employers may wish to encourage those attending the office to be tested regularly.
Many employers are also already starting to introduce more hybrid working patterns, where employees work some days from home and some from the office. This is driven by the challenge that is simply not possible to accommodate everyone in the work place whilst maintaining social distancing.
In many cases, by effectively consulting with employees and arranging working patterns and processes to suit everyone’s needs – for example tweaking the time employees start and finish so as to avoid busy times on public transport – it should be possible to transition fairly smoothly to a return to the office in some form.
If, even after discussing various options and putting measures in place to support employees and help make them feel safe, some employees still do not wish to return to the office, there may be grounds to terminate their employment.
However, it is always preferable to try and come to some kind of arrangement that works for all involved in working in the workplace before taking this step. In addition, if employers do decide to take this route, it will be vital that they can demonstrate they have taken all steps to fulfil their responsibilities to keep employees safe and have in no way discriminated against an employee, who may be at higher risk of contagion or infection.
If you have any questions about devising or implementing return to the workplace policies for your business, our expert employment team would be happy to help firstname.lastname@example.org