27th August 2021

Recently, the UK Government changed its guidance in England from ‘work from home where possible’ to ‘a gradual return’ to working in the office, or other place of work.

But what will this mean in practice for employers?

A gradual, managed return

Employers can now require their staff to return to the office, or other place of work, where this is the contractual place of work in their employment agreements. The Government recommended that this return should be gradual over the summer to ensure that the transition period is properly managed and the wellbeing of employees during this time is taken into consideration.

Health and safety measures

Employers considering asking employees to return to the office, or other place of work, should think carefully about health and safety, as employers must carry out a risk assessment in relation to Covid-19. They should put in place appropriate measures identified by the risk assessment, for instance providing masks, hand gel, and social distancing. Health and safety consideration should also be given to workers given that health and safety detriment protection has recently been extended to workers.

Case-by-case review

In a recent Employment Tribunal case (Gibson v Lothian), an employee raised health and safety concerns with his employer regarding poor workplace conditions, and his fear of catching COVID-19 as a result and passing it onto his vulnerable father. He was subsequently dismissed by his employer who refused to heed his request for reasonable measures to be implemented. The Tribunal found that his dismissal was automatically unfair stating that the requirements under section 100(1)(e) Employment Rights Act 1996 had been satisfied as the employee had taken appropriate steps to protect his father in what he reasonably believed were circumstances of serious and imminent danger.

This does not mean that all employees will be able to elect not to return to the workplace, but it is a reminder of how employees’ needs must be reviewed on a case-by-case basis.

Employees’ reluctance and desire for flexible arrangements

Employees may be reluctant to return to the office for a multitude of reasons.

Employers should in particular be wary that employees may have a ‘protected characteristic’ under the Equality Act 2010. Employers should engage with employees about the planned returned to work, and possibly one-to-one meetings with reluctant employees to find out the reasoning behind their reluctance and try to address their concerns.

In Accattatis v Fortuna, an employee expressed concerns about his health and safety when travelling to work on public transport and asked to be furloughed. His employer refused this request stating that his job could not be done from home and that he was required on site during the busy period. The employer offered to allow him to take holiday or unpaid leave, but his insistence to be furloughed or work from home culminated in his dismissal by the employer. In contrast with Gibson v Lothian above, the Tribunal held that the employee’s demands to work at home or be furloughed were not appropriate steps to protect himself from danger and therefore his dismissal was not automatically unfair. The employer in this case had also taken steps to ensure proper measures were in place to protect employees’ health and safety in the workplace.

Employers should also remember the right of all employees to request flexible working, which can include requesting working from home as well as amended or reduced days or hours.  We have seen a recent rise in flexible working requests which should be reasonably considered by employers, and handled according to the relevant statutory requirements, and open up dialogue with employees.

Guidance for employers

Ultimately, employers usually have control over where their employees work. However, employers bear the risks not just of contravening employment legislation, but also of losing talent if they are too rigid with rules about returning to the office, without a level of flexibility in their approach.

Open conversations between the parties and reasonableness on both sides will hopefully result in a compromise that works for all. Where compromise fails to be reached and claims are brought, every case will be decided by the Tribunals on the facts of that particular case.  We have seen from reported Tribunal cases so far, however, that tribunals expect a degree of reasonableness and compromise both by employees and employers when handling these tricky and sometimes sensitive issues.

If you need any assistance with the issues raised in this article or wish to discuss what practical measures you can take to protect your workforce, then please do not hesitate to contact a member of our Employment team or email our Head of Employment, James Baker at jamesbaker@leeandthompson.com or 020 3073 7600.