As Lockdown eases, the Government is encouraging a return to office-based working, while outside England, the devolved government’s advice remains that employees should work from home where possible. But what happens if some employees don’t want to return to the office when the time comes? Lawyer David Sheppard explains
For most office employees, their contractual place of work is the office, therefore an employer can reasonably instruct an employee to their place of work.
If an employee refuses a reasonable instruction to return, this could be the basis for disciplinary action and ultimately dismissal. This contractual power must however be exercised reasonably, in accordance with health and safety guidance, and not in a way which undermines the trust and confidence of its employees.
Consequently, employers should consult with their employees as to how attendance at the office will be arranged, and give reasonable notice of their return date. This could include implementing transparent ways in which seating is allocated and distributed amongst employees, and fairly identifying the days employees are required to attend, such as on a rotation if full attendance is not possible.
To reassure employees, employers would also clearly explain the new layout and Covid-procedures, and the various measures taken by the business to comply with Government health and safety guidance to ensure the office is Covid-secure.
If an employer is transparent on the new working conditions and there is open communications about returning to the office, most employees will return voluntarily. However, inevitably some employees will be more resistant to the return to office working because home working is more convenient to them, or fits with their childcare arrangements.
There is no right of employees to work from home, but it is open to employees with six months or more service to make a formal flexible working request to homework, and their employer will be legally obliged to consider that request in a reasonable manner, discuss it with the employee, and reach a decision within three months.
It is likely that Covid-19 would be regarded by a tribunal as a serious danger, and the key issue is whether that danger was ‘imminent’
However, there is no legal obligation to grant the request, and it can ultimately be rejected for various permitted reasons, such as detrimental effects on meeting customer demand, and detrimental impact on quality or performance. An employer will need to have and retain clear evidence to support the business reason(s) for its decision, and why returning to the office is required.
In the context of home-working, there is a possibility that a policy of reducing working from home may disproportionately impact female employees who tend to be primary child carers, and would therefore potentially amount to indirect sex discrimination in breach of the Equality Act 2010.
Employers therefore need to ensure that its return to office policy is proportionate and reasonable, and they have a dialogue with employees facing childcare problems and explore how they can be supported in returning to the office, such as allowing flexible working hours, fewer days in the office or given more time to adjust their childcare arrangements once nursery care places fully resume.
Ironically, businesses with workforces with more gender-balanced childcare responsibilities are less likely to provide statutory protection for parents facing problems in returning to the office, as neither men nor women are as a group specifically disadvantaged by office-working so no indirect sex discrimination arises from office-working policies.
It is likely that those employees most resistant to returning to the office will have health and safety concerns in commuting and attending an office, and some may be particularly vulnerable to Covid-19 infection, or live with someone who is vulnerable.
Employees will have statutory protection from disciplinary action or dismissal if they refuse to return to work where they reasonably believed that in returning to the office there was a “danger” which was serious and imminent.
The most vulnerable to the virus will also likely to be “disabled persons” for the purposes of the Equality Act
It is likely that Covid-19 would be regarded by a tribunal as a serious danger, and the key issue is whether that danger was “imminent” in the circumstances.
A workplace with robust Covid-safety measures in place which have been clearly communicated to an employee, together with the option of flexibility in hours to avoid busy periods on public transport, may well be sufficient to prevent that danger being imminent.
If an office is shown to be Covid-insecure, or infection takes place within its premises, an employee will have a stronger basis for showing the danger was imminent and will have protection from disciplinary action.
Employees with certain health conditions are more susceptible to infection and the virus, and those previously advised to “shield” are regarded as being extremely vulnerable.
Health and safety obligations means that employers will need to identify and implement additional measures for more vulnerable employees, which may possibly require a risk assessment considering their particular role and condition, such as using desks away from other colleagues, more regular deep cleaning, having window seats, and adjusted starting times if they use public transport.
The most vulnerable to the virus will also likely to be “disabled persons” for the purposes of the Equality Act, meaning that employers must also consider and implement any reasonable adjustments to their working conditions to again minimise the employee’s exposure and risk of infection, which would again require a risk assessment and medical advice from occupational health specialists.
Every employer is also legally obliged to undertake a pregnancy risk assessment, and as with disabled persons, special additional measures would need to be considered for pregnant employees returning to the office, particularly during the later stages of their pregnancy.
It may well be that the physical features of an office mean that home working needs to be accommodated for the foreseeable future for those most vulnerable to the virus.
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