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Getting back to work – returning to work changes from 1 August

Musab Hemsi – Partner

The Prime Minister faces an incredibly challenging transition in the coming weeks.  Our economy continues to suffer repeated body blows from Covid-19.  With one eye on avoiding a knockout blow and amid ever-increasing pressure from high-profile business owners, it is expected that a number of changes will be announced on 1st August 2020.

Whilst the official guidance currently remains that employees should work from home if they can as of 1 August the Government has indicated that employers will be able to ask employees who have been able to work from home since the lockdown to return to their workplace, provided they have taken steps to ensure the workplace is Covid-secure and social distancing measures are in place. The Prime Minister emphasised that employers will have the discretion to make decisions about how their staff can work safely, which could mean continuing to work from home. 

This position applies only to England. The devolved nations continue to manage their own transitions, based on health, economic and social factors.

This is the moment many businesses will have been preparing for – a chance to really inject momentum into stalling revenue streams. Beyond that, whilst much of the commentary has been around progressive flexible working practices and the opportunity to look at what the last few months have taught us all about the benefits and challenges of remote working and how those learnings can influence workplace strategy, there are also many employers and employees who liked to work as they did pre-covid and are anxious to get back to the way things were.  

With the changes on the immediate horizon, we take a look at the likely announcements and what that means for employers based in England from 1 August 2020:

Guidance on working from home to change. 

Each business must decide whether to continue home working (either completely or partially, re-open with optional attendance or re-open with mandatory returns).

No matter which option a company selects (or a hybrid of more than one), challenges will arise.

We anticipate resistance in returning to work from certain camps. These can include the following:

  • Living with vulnerable relatives

 An employer’s duty of care extends only to their employees and not to the people they live with, but that’s not to say an employee who lives with a vulnerable person could not raise a grievance or bring a claim over a blanket requirement to return. The issue is more nuanced in cases where the employee has been able to successfully work from home. The Covid-secure guidance also requires employers to pay particular attention to those who live with someone who is clinically vulnerable

  • Lack of care for dependents

Those without childcare (particularly throughout the summer holidays where usual childcare arrangements may not be possible) are entitled to unpaid parental or dependants leave. However, requiring employees who have been able to work from home with children successfully to return to the office when unable to do so would risk indirect discrimination claims.

  • Those concerned about how Covid-secure the workplace is

 Some employees won’t fall into any vulnerable category but will still be concerned about a return to the office. An employee has the right not to be subjected to any detriment on the grounds that they refused to return to their place of work in dangerous circumstances provided the employee reasonably believed the danger to be serious and imminent. Employers can reduce the risk of successful claims in various ways, including by providing detailed explanations about steps taken to control and reduce risks. Clear and authentic communication matters.  

  • Public transport users

Whilst isolated means of transport are still encouraged, there are now only minimal restrictions on using public transport in England.

For employees who are reliant on using public transport, employers will have to consider what allowances can be made for those people to avoid use at peak times yet still allow employees to fulfil any personal commitments such as childcare.

Requiring public transport-reliant staff to return also runs the risk of grievances.

An end to Shielding?

The guidance currently recognises two categories of vulnerable employees, those who are clinically extremely vulnerable and have been asked to ‘shield’ and those who are clinically vulnerable but are not required to shield.

As of 1 August in England, the extremely clinically vulnerable are no longer advised to shield. We anticipate that the official Covid-19 secure workplace guidance will then advise employers to treat those two groups in the same way, i.e. to give them the safest available onsite roles and, where no such roles are available, to consider if this is an acceptable level of risk.

However, many clinically vulnerable employees will qualify as disabled for the purposes of the Equality Act. This makes it particularly risky to require their return, since it may be a reasonable adjustment to allow continued homeworking.

Three key steps an employer should be ready for:

1. Pushback & grievances

Trying to balance the views of some employees desperate to return to the office versus those who want to continue home-working is likely to be a difficult issue for employers for the rest of the year. The fact that the government guidance makes clear that the decision to return is solely at their employer’s discretion means employers can expect challenges.

Ensure you have a robust procedure for resolving grievances or complaints. 

2. Anticipate more flexible working requests

 Employers can also expect an increased number of flexible working requests for home-working which will need to be dealt with in the context that many businesses have successfully implemented home working over the past few months.

Ensure your managers know how to deal with a flexible working request – a single error in dealing with a flexible working request can attract an award of up to 8-weeks pay at an Employment Tribunal, as well as an order to start the process again (correctly this time).

3. Planning ahead for a second wave

With reports of a second wave and further local lockdowns possible, employers will need to ensure they can continue to accommodate homeworking with little to no notice. Contingency planning has changed, maybe forever.

What should you do? Many employers will look to mitigate risk either by not asking employees to return to office-based roles or by giving them a free choice on whether to do so.  There are reputational as well as legal risks for those that take a different approach. For now, keep taking advice, listen to your staff, communicate honestly and clearly with them.

If a free consultation with one of our specialist team would help your business prepare for these changes or on any other employment law issue, don’t hesitate to reach out to us at https://lexleyton.co.uk/free-consultation/

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