Coronavirus - Updated COVID-secure office guidance - UK

• United Kingdom

• Coronavirus - Workforce issues
• Employment law

30-07-2020

A return to the office for some, homeworking for others?

Before the pandemic, a minority of employees worked remotely. During lockdown, nearly half of people in employment worked at home, according to the ONS. Surveys suggest that productivity was maintained or even increased during this time, despite the rapid and large-scale closure of offices.

However, after the initial relief that the technology worked, some concerns have been expressed as to the longevity of full-time homeworking for many employees. With recently updated government guidance giving employers more discretion over returning their staff to the office in England (separate guidance exists for other parts of the UK) from 1 August, we summarise what has changed and how employers might approach this next phase for those continuing to work remotely.

Coronavirus - updated government guidance - England

The “Working safely during COVID-19 in offices and contact centres” guidance has been updated, as of 23 July 2020, in England. Previously, the guidance stated that employers should “make every reasonable effort to enable working from home as a first option”.

Now, it states “businesses and workplaces should make every reasonable effort to ensure their employees can work safely. From 1st August, this may be working from home, or within the workplace if COVID-19 Secure guidelines are followed closely”. Reflecting this change, the ‘Stay Safe’ workplace poster has also been updated.

The guidance lays greater emphasis on employee consultation than previously, stating: “Employers should consult with their employees to determine who, from the 1^st August, can come into the workplace safely taking account of a person’s use of public transport, childcare responsibilities, protected characteristics, and other individual circumstances. Extra consideration should be given to those people at higher risk” and “It is vital employers engage with workers to ensure they feel safe returning to work, and they should not force anyone into an unsafe workplace”. Note that, while the guidance refers to consulting employees, the law provides for consultation with any safety representatives appointed by a recognised trade union and, in their absence, either employees directly or their elected employee safety representatives.

Other changes to the guidance include new content on: optimising ventilation; disposing of PPE; face coverings (which reflects the evolving policy on wearing them in enclosed spaces, while not requiring them); and public transport (the reference to avoiding public transport has been deleted).

Interestingly, the guidance states that, to reduce transmission due to face-to-face meetings, employers should continue to use remote working tools to avoid in-person meetings. Only absolutely necessary participants should physically attend meetings and should maintain social distancing and other risk mitigation measures. As such, a return to the office does not signal, currently, a return to face-to-face meetings as the norm.

The change in guidance is expected to result in a gradual return to office working, with organisations limiting numbers in the workplace to support safe working and social distancing.

Can an employer require employees to the office when it reopens?

Some employees may not want return to work due to health fears, concerns over public transport, caring commitments and other reasons. By involving workers, any recognised trade union and consulting with health and safety representatives in risk assessment planning and measures adopted to safeguard their health, employers can build employee trust. This will support a smooth transition back to the office and will help identify any individual employee issues.

In particular, employers must consult appropriate employee representatives or staff directly (see above) on measures to ensure health and safety at work. The guidance states that employers should share the results of their risk assessment with the workforce and there is an expectation (not an obligation) that they display the ‘Stay Safe’ poster in the workplace and all businesses with over 50 employees publish the risk assessment on their website.

However, despite working with workers and their representatives on a safe return to the office, some employees may remain reluctant to return. In broad terms, an employer may require staff to attend their workplace if: the organisation has not been instructed to close; the employer meets the current COVID-secure workplace guidance above, which includes taking particular and individual care for vulnerable and shielding employees; the employer ensures, as far as is reasonably practicable, the health and safety of their employees; it puts in place measures and makes reasonable adjustments to take account of the Equality Act. For example, care should be taken to avoid making assumptions or demands which expose the employer to potential discrimination claims (such as whether or not an employee is ready or able to return or making arrangements which unjustifiably and detrimentally affect some groups, such as those with caring responsibilities, new or expectant mothers or the disabled).

Listen to the reasons for employees’ concerns, try to find an agreed resolution and keep records. Where the employee has been working satisfactorily from home, consider whether the business has reasonable and genuine grounds for requiring their return to the office.

If the employee does not have reasonable grounds for their refusal and the employer has complied with H&S and equality duties, and current guidance, employers should act carefully and sensitively, balancing individual employee needs, broader employee relations, legal risk and reputational aspects. It will be prudent to confirm in writing the assurances given and measures adopted. For further information on how to manage a safe return to the office, read our Alert.

Review remote working arrangements

Given that many employees will not be returning full-time to the office for some months to come, and that some had not worked remotely before lockdown, employers should review and improve current remote working arrangements. For example:

• survey your remote working employees and identify any teams or individuals who are struggling. Investigate, prioritise and support (which may involve a return to the office)
• review and update your remote working health and safety risk assessments, in particular to address employee mental health risks and use of display screen equipment, and ensure mitigating measures, training and support are put in place. The reported increase in domestic violence risks should also be addressed (government toolkit here). For guidance on health and safety and homeworking, read our Alert  
• confirm that reasonable adjustments have been made to support disabled workers at home
• assess whether data protection arrangements are sufficiently robust to protect confidential, personal and sensitive data and ensure its lawful processing. Has a data privacy impact assessment of the implications of remote working been undertaken?
• consider the effectiveness of staff communications and review arrangements to inform, and engage with, remote working employees
• ensure managers have the training and tools to help them manage remote workers
• check whether employee counselling, health and other confidential support services are fit for purpose and working well
• identify any training needs arising from remote working, such as data protection, health and safety and IT training

Where higher levels of homeworking will be formalised for the medium term, or until a vaccine is available, consequential changes should be agreed to employment contract terms, such as to place and hours of work, data confidentiality, expenses and ownership of equipment and any provision to terminate remote working, as appropriate. HR policies should also be reviewed and updated as necessary, including: remote working, health and safety, sickness and absence, data protection, performance and appraisals, disciplinary, travel, employee expenses/tax/insurance and the employer’s approach to domestic abuse risk.

A change of direction: new approaches to remote working?

Not all employers will embark upon a phased return to the office. Some have already decided to close offices, to reduce costs, others to trial remote working projects for the medium or longer term reflecting the recent success of homeworking during lockdown.

For many, the pandemic has prompted a fundamental rethink of the role of the office, to learn lessons from lockdown (for some examples, see the table below) and to bring together the best from both office and remote working.

Lessons learnt from remote working during lockdown

A “blended” solution, providing both employers and employees the possibility of balancing remote and office working, seems much more likely than just a few months ago.