On 8 December 2021, Boris Johnson announced that the guidance for office workers in England to work from home if they can was to be introduced from the following week.
When is it effective?
This instruction will be effective from 13 December 2021 and will run until at least mid-January 2022, with a review taking place early in the New Year.
Why is it being introduced?
The measure is part of England’s move to what the Government has christened ‘Plan B’, an arrangement that is being used to tackle increasing COVID cases and the rapid spread of the Omicron variant in the UK.
Is it only in England?
Work from home guidance ceased in England on 19 July 2021 and this move to Plan B brings it back into line with the rest of the UK, the devolved nations having continued to advise doing so throughout 2021.
What does it mean for employers?
Well, they should support all their office workers to work from home where it’s possible for them to do so. Where such arrangements are only temporary and / or being trialled, employers should use their discretion and consider continuing with them and deferring any longer-term decisions until the timescale applicable to this latest change in guidance is more definitive.
As before, office workers who can’t work from home should continue to go into work. Examples of such workers cited on the relevant gov.uk page are office workers who need to access equipment necessary for their role and those who have to fulfil their role in person.
What about employees who can’t work from home?
The main objection employers are likely to receive from office workers who are required to continue attending work despite the introduction of this work from home guidance is that they believe the office to be an unsafe environment. In this regard, the employer is obliged in law to provide a safe place of work and employees have the right not to be subjected to a detriment or dismissal for raising health and safety concerns. Furthermore, there is no service requirement to bring such claims and the compensation that can be awarded is uncapped. The relevant legal protection is found in sections 44 and 100 of the Employment Rights Act 1996. It is for employees to make their own decisions as to whether there are ‘circumstances of danger’ which they ‘reasonably believe’ to be sufficiently ‘serious’ and ‘imminent’ to justify refusing to attend the workplace. Employers must tread very carefully before instigating disciplinary action in such circumstances by taking the following steps:
- Ensure that all steps have been taken to comply with the government guidance for each aspect of the operation.
- Effectively communicate this to employees to ensure that they are aware of the measures that have been taken.
- Make employees aware of the means of escalating matters where the processes that have been put in place are not being adhered to.
- Ensure appropriate remedial action is taken in respect of any breaches of these processes.
- Where an employee still remains reluctant to return to / remain at work, discuss this on an individual basis with the employee and provide reassurance that all reasonable steps are being taken to protect their health and safety.
Where, notwithstanding the above, the employee still refuses to come to work, disciplinary action can be instigated. However, it is important for employers to appreciate that there will still be considerable risk in doing so. The more an employer does to protect its employees and the more effectively it communicates the measures it has taken, the greater the possibility that the employee’s refusal to return to / remain at work will be deemed unreasonable and disciplinary action justified.
Where a worker is high risk (e.g. due to an underlying health condition, age, pregnancy etc.), pressing ahead with a return to work regardless or placing on unpaid leave could risk a discrimination claim on the basis that the employer has indirectly discriminated against the employee by applying a “one size fits all” approach or failing to make reasonable adjustments to accommodate a disability.
The alternative would be to offer the employee the opportunity to take holiday or unpaid leave, an arrangement that the employer would obviously need to keep under review. However, even then, there is still a possibility that this could be seen as a detriment under section 44 and if the employee feels forced to take unpaid leave for any significant period of time, they may decide to resign and claim constructive dismissal. It may also constitute unlawful discrimination.
Is financial support available for employees who take leave because they can’t work from home?
Whilst employers could previously agree to furlough all such staff under the Coronavirus Job Retention Scheme, that scheme ended on 30 September 2021. Whether financial assistance is provided by the employers concerned would be at their discretion.
What measures need to be taken to protect employees who still have to go to work?
Employers should continue to comply with the Government’s ‘Working safely during coronavirus’ guidelines. This includes carrying out a specific COVID risk assessment which must:
- identify what work activity or situations might cause transmission of the virus;
- determine who could be at risk;
- assess how likely it is that someone could be exposed; and
- act to remove the activity or situation, or if this isn’t possible, control the risk.
The guidance recommends other risk management measures relating to cleaning, ventilation, face masks, screens, social distancing, cohorting etc.
If office workers are still required to attend the workplace, employers should consider the need for them to take regular lateral flow tests in order to mitigate the risk they pose to others.
Employers may also need to update their individual risk assessments for vulnerable workers.
What measures need to be taken to protect employees who can work from home?
Employers have a common law duty of care which provides that they must ensure the health, safety and welfare of all their employees, as well as providing and maintaining safe systems of work. This duty extends to staff working from home. Protecting the physical and mental health of such employees can be more difficult, with a greater need to ensure that appropriate support mechanisms are in place. As well as conducting homeworking risk assessments and DSE assessments, employers should be mindful of the working time implications and the impact of not taking adequate breaks from work. As well as the practicalities surrounding domestic circumstances, IT and insurance, it is also necessary to consider how issues such as isolation, loneliness and stress will be managed. Our previous article provides further recommendations in this regard.
It’s not all doom and gloom!
Whilst it’s tempting to be despondent about this latest development, as employers, it’s worth reflecting on the experiences from previous stages of the pandemic when lockdowns were imposed and / or restrictions tightened. Businesses are, despite the media hype, actually very creative and resilient when it comes to tackling changing scenarios and solving problems…and employees and workers are generally behind you all the way.
If you require any further information regarding this issue, please contact us on 01942 727200 or email at firstname.lastname@example.org.