It’s time to get back to work – well amost!

As the Government has announced plans to remove the current ‘work from home if you can’ guidance and all legal limits on indoor and outdoor meetings with effect from 19 July 2021, we wanted to send you an update on how this may impact you and your business.

Here are some of the key considerations:

Talk to your staff.

Employers should be aware that mandating a wholesale return to the office carries several legal risks. Although there is no legal right for employees to work from home, employers should take time to understand personal circumstances and any concerns employees may have about returning to the office. Employers will also need to review their approach to flexible working requests. The business reasons for refusing a flexible working request will have changed during the pandemic, so you may need to consider how flexible working requests will be handled following a re-opening of offices. Policies should be reviewed and updated too – let us know if you need our help with this!

Face coverings and distancing

Social distancing rules will be lifted and wearing face masks will become a matter of personal choice from 19 July 2021. This has been met with significant concern by trade unions warning that workers will be placed at significant risk if the wearing of face masks are dropped. Some organisations have confirmed that they will continue to require staff and customers to wear face masks. Regardless of the changes to the Government guidance, employers still have a legal duty of care under the Health and Safety at Work Act to ensure that there is a safe working environment for their employees. In the face of a ‘significant and rising’ epidemic, organisations must take steps to ensure that employees are returning to a safe workplace. Therefore, your Risk assessments will need to be reviewed and updated, and you may decide that you want people to continue to wear face coverings. Each business will be different – and this will be a decision you need to make based on your risk assessment.

COVID-19 vaccines

The Government published its response to mandating COVID-19 vaccines in care settings on 16 June 2021. The outcome is that COVID-19 vaccines will become mandatory in care settings. The Government outlines that this policy aims to protect people who are most at risk from COVID-19 and its complications, by driving vaccination uptake in high-risk settings and ensuring staff vaccination levels.

The Equality and Human Rights Commission stated in its response to the consultation that mandating vaccines in the care sector would be ‘reasonable’ and that the Government is right to prioritise protection of the right to life for older residents. The Government is also due to launch a further consultation on whether to make COVID-19 and flu vaccination a condition of deployment in health and other care settings (e.g., NHS and domiciliary care). Any mandatory vaccine policy will require careful implementation by employers; job adverts, contracts of employment, employee handbooks, policies and privacy statements will all require updating. There may also be employee consultation requirements to successfully implement this policy. Again, please make sure that you get professional advice in this area before launching any kind of decision to your business.

Coronavirus Job Retention Scheme (Furlough Scheme)

Despite hopes from businesses that the Government would delay plans to require employer contributions to the Furlough Scheme, from 1 July 2021 employers are now required take on more of the costs relating to furloughing workers. This may put pressure on businesses to consider restructuring or rationalisation as the Government’s financial support draws to a close on the 30th September 2021.

Responding to flexible working requests

Employers that operate with staff working remotely are likely to face a number of requests for flexible working if they seek to go back to the place of work full time, and how employers can prepare for this is relatively simple.

Firstly, to avoid being deluged with requests, employers considering adopting hybrid working need to discuss this with their teams or set out what the proposed plan will be. Most employers are likely to wish to trial new working arrangements, as they gain a better understanding over time of how the model impacts productivity, teamwork and collaboration. As part of this, developing a remote or home-working policy will be key, both dealing with expectations and any limitations as well as the very practical questions about office equipment, health and safety and expenses.

The approach taken to issues like expenses and equipment need to balance a range of factors including an organisation’s values, the extent this is necessary to do a job safely and productively, and the extent that the working arrangements is employee or employer led.

Secondly, employers will need to bear in mind formal flexible requests for remote working may be harder to refuse, more so if this is for only part of a week. The grounds for declining flexible working requests are limited and the most likely to be relevant include detrimental impact on performance, inability to reorganise work amongst existing staff, and the burden of additional costs. This may therefore mean that employers consider trialling flexible working requests, rather than saying no, as a way to allow the full impact of the working arrangement to be tested in a truer setting.

Thirdly, employers should consider their limitations on what is/isn’t possible. For those companies that require customer facing staff, do you require geographic limitations on where an employee lives to avoid staff refusing to come into the workplace when meetings arise at short notice? Given the significant tax and legal costs arising when staff work abroad, do you make clear this isn’t permitted in the longer term? Or do you make arrangements so that you can have people working from abroad to help with skill shortages in the UK?

Finally, the degree of home working in your business will of course vary depending on what you do, your level of autonomy and responsibility for others and the equipment you need to perform your role. Since this could trigger feelings of inequality, employers need to recognise that not every employee will be able to work in the same way.

Interesting case law is starting to appear in relation to COVID-19.

A key question we have been asked is how to manage employees who refuse to attend work due to COVID-19 related health and safety concerns. Employers need to be aware of the protections afforded to employees in these circumstances. The Employment Rights Act (s100) protects those who, when faced with ‘serious and imminent’ danger at work, are dismissed for taking appropriate steps to protect themselves or others from the danger.

If individuals are dismissed under these circumstances, they will automatically be seen to have been unfairly dismissed. We explore two contrasting Employment Tribunal (ET) decisions concerning the dismissal of employees for expressing concerns about COVID-19.

In Accattatis v Fortuna Group – Mr Accattatis was employed by Fortuna Group, a company that sold and distributed PPE. Staff were ‘key workers’ during the first wave of the pandemic and the business remained open throughout the first lockdown. On 30 March 2020 Mr Accattatis developed COVID-19 symptoms and self-isolated. Shortly before he was due to return to work, he asked either to be furloughed or to be allowed to work from home. Mr Accattatis expressed concerns about commuting and being in the workplace. Mr Accattatis’ role involved being physically present in the warehouse, so Fortuna Group rejected his requests and subsequently dismissed him due to a failure to ‘comply fully with company policies and guidelines.’ Mr Accattatis bought a claim for automatic unfair dismissal under s100 ERA that his workplace posed a serious and imminent danger to him.

The ET accepted that Mr Accattatis reasonably believed that he was in serious and imminent danger, however, the ET did not accept that he was unfairly dismissed. The ET took into consideration the government guidance at the time that the pandemic presented a threat to public health, as well as the multiple emails Mr Accattatis had sent to his employer expressing his concerns about his commute to work. However, Mr Accattatis had not taken appropriate steps to protect himself or others from the danger; his demands for furlough or working from home were not appropriate steps to protect him from the danger and the option of paid or unpaid leave was not taken for economic reasons.

In Gibson v Lothian Leisure – Mr Gibson was employed by Lothian Leisure as a restaurant chef. In March 2020, Mr Gibson was furloughed when the restaurant was forced to close. When the restaurant reopened, Mr Gibson raised concerns about returning to work without PPE and other Covid-secure workplace measures. Mr Gibson was concerned about catching COVID-19 and passing it to his father who was clinically vulnerable. Mr Gibson was apparently told to “shut up and get on with it” by his employer. On 30 May 2020, Mr Gibson was dismissed by text message. The ET concluded that Mr Gibson had been automatically unfairly dismissed; he had taken appropriate steps to protect his father in what he reasonably believed were circumstances of serious and imminent danger.

Whilst these are only first instance ET decisions and therefore not strictly binding on other Tribunals, these cases provide some guidance to employers on how tribunals may approach cases relating to health and safety in the workplace. Clearly to obtain the protection of s100, individuals must express very specific concerns about their” serious and imminent danger” at work and must take appropriate steps to protect themselves from the danger. These are important considerations for employers as the remaining restrictions ease and employers encourage their employees back into offices.

If you would like to have a chat with us about how working remotely is impacting your business and your people and how we might be able to help you manage and introduce these changes, or review your existing practices, then book a call with us here:

Book a call with Emma Browning

Book a call with Rachel Sherson