Back for good?

After 15 months of a pandemic which has dramatically altered the way many people live, work, think and behave, how might UK business and the working population deal with a potential of a return to the office environment en masse? Employment lawyer Lucy Flynn examines the issues.

17 May 2021 saw the re-opening of indoor entertainment and attractions and the recommencement of outdoor sporting and live performance events in the UK. New guidance on meeting friends and family was issued and the onus has shifted away from compliance with government rules and towards the individual’s responsibility to exercise caution to help keep everyone safe.

Government guidance

Government guidance continues to be that everyone who can work from home must do so and, if it is not possible to work from home, the journey to work should be planned in advance to avoid crowds. However, Boris Johnson has indicated that, provided the UK stays on track, the intention is to lift the work from home guidance on 21 June 2021.

Thus, after 15 months of a pandemic which has dramatically altered the way many people live, work, think and behave, how might UK business and the working population deal with a potential of a return to the office environment en masse?

From the perspective of the employer, the duty under the Health and Safety at Work Act 1974 remains to provide a safe place of work and a safe system of work. The government and HSE have published, and regularly update, guidance to help deal with the return to the workplace after the pandemic and in the first instance employers should complete a COVID-19 risk assessment and deal with any identified areas of risk before re-opening the workplace to the workforce. The advice to socially distance, ensure that the workplace has adequate ventilation and is cleaned frequently, and encourage and promote good hand hygiene practices is very likely to remain in place at least in the short-term.

Safe return to the workplace

However, the green light to return to the workplace and ensuring that the workplace can accommodate a safe return still might not mean a wholesale return to pre-pandemic working practices. A recent survey of 1000 UK employees suggested that one in four would resign from their current job if they were forced to return to working in the office. Therefore, although an employer may be ready and excited to welcome the workforce back to the workplace, the workforce might not feel ready, excited or even willing to return to the workplace. After over a year of homeworking, feelings of anxiety, worry or even a refusal to return to the workplace are to be expected and need to be carefully considered.

Once an employer has identified its business objectives and considered how a return to the workplace can safely and effectively achieve these, it is advisable to open lines of communication with the workforce and inform them, as far in advance as possible:

When a return to the workplace is expected
What changes have been made to the workplace, such as one-way systems, altered office lay-outs, rules regarding use of facilities
What, if any, changes are proposed in order to facilitate a return to the workplace, such as rota systems, staged returns or a hybrid of home and office working
Employees should be invited to air concerns or queries about a return to the workplace and employers need to remember that effective support to deal with concerns and facilitate a return to the workplace can be provided in many forms, such as:

Listening to and discussing individual concerns
Clearly and regularly communicating all measures in place to protect the workforce at work
Openly explaining how the business will keep health and safety as a priority
Discussing suggestions and considering possible options for safely returning to the workplace
maintaining the ability for workers to air their concerns before, during and after any return to work

Flexible working

Although it might not be possible or practical to accommodate every concern or agree to every request for flexibility, open lines of communication can assist the employer and employee in reaching a compromise.

Blanket policies regarding homeworking, office working, hours of work or a requirement to be vaccinated may seem fair, but a one-size-fits-all approach can be problematic and employers would be well advised to consider dealing with matters on a case-by-case basis.

Under the Flexible Working Regulations 2014, employees with over 26 weeks’ service have the right to make one formal request for flexible working every 12 months, for any reason, and this obliges the employer to deal with the request in a reasonable manner. A request for flexible working can be for a change to the place of work and could be made by an employee in response to being instructed to return to the office. Failure to deal with a request for flexible working in a reasonable manner, notify the employee of the decision or rely on one of the eight statutory grounds for rejection gives the employee the right to complain to the Employment Tribunal. As such, employers should be advised against giving short shrift to employees asking to continue to work from home indefinitely without proper consideration or reasonable justification, particularly if an employee has already successfully worked from home during the pandemic.

If you wish to discuss any of the issues raised here, please get in touch today.