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‘We’re in this together!’ The challenge of returning to the workplace

by Michelle Tudor

7 October 2020

Continuing the 'return to the workplace' topic in our "WE'RE IN THIS TOGETHER" series, we've teamed-up with Michelle Tudor, Senior Associate at Moore-Barlow LLP. Sharing her legal expertise, Michelle examines the challenges of bringing employees back to the office and the importance of communication and compromise when managing the employer/ employee relationship during the pandemic to avoid disputes.

The return to the workplace has been a turbulent one in the UK. From 1st August, the UK government gave employers the green light to bring their employees back to the workplace (provided it is safe to do so), however the growing infection rate caused a change in approach recently with workers now encouraged to work from home if they can. When given the choice, many people are opting to continue to work from home. There are a number of reasons for this, such health & safety concerns, family commitments and a preference for a better work/life balance.

Health and safety
All employers have a statutory duty to ensure the health, safety and welfare of their employees as far as reasonably practicable. The first step that employers should take before inviting employees back to the workplace is to carry out a Covid-19 risk assessment. This means:
• Identifying the work activities or situations that might cause transmission of the virus;
• Identifying who might be at risk – including employees, contractors and visitors to the office;
• Determining how likely it is that someone could be exposed to the virus;
• Acting to remove the activity or situation; and
• If the activity or situation cannot be removed entirely, acting to control the risk.
The results of the risk assessment should be shared with employees. This will start a discussion between employer and employee about the return to work.

Practical steps to control the virus
Controlling the risk of transmission of the virus may include temporary changes to an employee’s duties by removing high risk activities; adopting a flexible working approach such staggered start and end times to avoid commuting during rush hour; and adapting the workplace to maintain social distancing. Measures such as a clean desk policy and one-way systems may be appropriate depending on the layout of the office space. Particular focus should be given to shared equipment, such as computers, printers, photocopiers and stationery, and shared facilities such as bathrooms, kitchens and break out areas.

Employers should implement strict handwashing and hygiene procedures, providing sufficient facilities to ensure that employees are adhering to high standards of hygiene. Employers should also look at how often and the standard to which its offices are cleaned.

Addressing employee concerns
Communication is going to be key when it comes to addressing employees’ concerns about returning to work, especially around health and safety. Common worries amongst employees include: commuting to work on public transport; greater exposure to the virus when mixing with colleagues in the office; pre-existing medical conditions that put them in a higher risk category; and having vulnerable dependents at home.

If an employee is worried about their return to work, employers should organise a time to speak to them. It may be that their concern has already been addressed in the risk assessment or perhaps the risk assessment can be amended to address the employee’s particular concern, setting out the measures that the employer will take to reduce or reduce the risk of transmission.

Reluctant employees
In addition to health and safety concerns, there may be a number of reasons why an employee is reluctant to return to the workplace.

Childcare commitments are a big problem amongst working parents. They face the risk of school lockdowns if there is a confirmed case of coronavirus amongst pupils, after-school clubs and childminders are in greater demand, and elderly grandparents may not be able to help out because of the risk to their own health.

Employees have the statutory right to time off for dependents. This is unpaid leave relied upon in emergency situations, for example when a child is ill and can’t go to school or where childcare arrangements breakdown at the last minute. Such leave is usually short term to give the employee time to make alternative arrangements, but as a result of the pandemic it may be relied upon in the long term. However, this is not ideal for either party because it means the employer cannot utilise its employee and the employee does not get paid.

Some employees have thrived during lockdown. The lack of commute and rushing around between meetings and after-work commitments can result in a happier, more productive workforce. As a result, we are seeing a growing trend in flexible working requests as employees ask to continue working from home for all or part of their working week.

Flexible working requests should be considered on a case-by-case basis. Employees must be able to demonstrate how they will be able to do their work and meet their objectives whilst working from home. It may be that this is easier than it used to be because employees now have months of experience to demonstrate that they can work from home.

The rising number of infections increases the risk that an employee may get caught by the government’s enforced self-isolation rules.

Individuals who are contacted by the NHS Test & Trace service (meaning they have come into contact with someone who has the virus) must self-isolate for 14 days. Even if that individual has a negative test, government guidance is to self-isolate for the full 14 days in case they develop symptoms after being tested.

Individuals who travel abroad to a country that is not within the government’s travel corridor must self-isolate for 14 days when they return home. As we have seen recently with countries like Spain and France, countries can be removed from the travel corridor with no or little notice.

Refusing a reasonable instruction to return to work
Employees are contractually obliged to carry out work for their employer at the place of work stipulated in the contract of employment. Failure to do so may be viewed as misconduct for refusing to follow a reasonable instruction from the employer. However, the impact of the pandemic means it will not always be as simple as proceeding with disciplinary action against any employee viewed as unreasonable or obstinate.

There are a number of legal risks that arise in taking disciplinary action against an employee who refuses to return to work:

• Forcing an employee to return to the workplace when they have genuine reasons why they are unable to do so may be a breach of the implied term of trust and confidence, especially if that employee has been successfully working from home during the pandemic.
• Employees must not be dismissed or subjected to any detriment for raising a health and safety concern, where they have a reasonable belief in a serious and imminent danger to their health and safety.
• Working mothers who carry the greater burden of childcare cannot be discriminated against because of their sex.
• Employees with medical conditions that have a long term substantial effect on their normal day to day activities cannot be discriminated against because of a disability.
• Older employees who are more vulnerable to the virus cannot be discriminated against because of their age.

Communication and compromise have been, and will continue to be, important when managing the employer/employee relationship during the pandemic to avoid disputes.

Written by Michelle Tudor, Senior Associate at Moore Barlow LLP

If you would like to learn more on the subject of ‘the return to the workplace’, please tune in to Michelle’s webinar 

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