Another new set of coronavirus regulations came into force on 2 December 2020, which puts the new three tier system on a statutory footing (The Health Protection (Coronavirus, Restrictions) (All Tiers) (England) Regulations 2020 (the Regulations)). What does this mean for office workers?
During both national lockdowns, the government passed legislation making it law that people should not attend their workplace unless “it is not reasonably possible” for that person to work from home. Although the government has given a strong indication that they would like the number of people working from home to increase, the Regulations themselves do not include any express requirement to work from home.
In the government’s COVID-19 Winter Plan, which we discuss here, employers are encouraged “to enable a greater degree of home working” amongst their workforce to reduce the transmission of COVID-19. Government guidance on the new tier system (the Guidance) confirms that, in every tier, “Everyone who can work from home should do so. Where people cannot do so – including, but not limited to, people who work in critical national infrastructure, construction, or manufacturing – they should continue to travel to their workplace.”
Nevertheless, the government has not made working from home a legal requirement after the lifting of national lockdown on 2 December 2020. The requirement to work from home is government guidance only. Where does this leave employers who may have some staff who are keen to return to working in the office on the one hand, and other staff who are reluctant to return?
Is working in the office permitted?
What is now clear is that an individual attending the office to work on their own will not be in breach of any legislation. However, the Guidance takes a tougher stance on working from home than previous versions of government guidance which required “everyone who can work effectively from home should do so” (our emphasis). The latest Guidance omits the word, “effectively”, suggesting that those who can work from home would be in breach of the Guidance if they choose to work in the office simply because they work more efficiently there (for example, due to better IT facilities). However, the Winter Plan helpfully recognises that there may be “specific reasons why attendance in the workplace may be needed” including mental health issues or concerns. Employers are given no further indication of what “specific reasons” will justify working in the office when the individual is able to perform their role from home.
Should I allow employees to attend the office?
Where employees are keen to attend the office, employers should consider their reasons on a case by case basis, and in light of the Guidance. It would be sensible to keep a record of their reasons and why the employer considered those reasons to justify attendance at the office. Although allowing employees to return to the office to work on their own will no longer risk criminal sanction, employers should still be mindful of the reputational risk of allowing employees to return to the workplace, especially if there is a subsequent outbreak of COVID-19 at their workplace, as well as the possible risk to the health and safety of their staff.
Some employers may be reluctant to allow employees to return to the office, given the possible risks and the cost involved in making their workplaces COVID-secure, such as additional cleaning. Additionally, employers may be reluctant to unsettle a workforce that is working well remotely, given the possibility of a further legal mandate for everyone to work from home, as we have already seen twice this year. That said, employers should give careful consideration to any employees who indicate that working from home is negatively impacting their mental health, as employers have a duty of care and are also required to provide a safe system of work. This may mean that a particular employee should be permitted to work in the office where others are refused permission.
It’s worth bearing in mind that the guidance about making a Christmas bubble states that individuals should reduce unnecessary contact with people they do not live with as much as possible in the two weeks before and after the Christmas bubble meetings. Where possible, employers should be cautious about opening workplaces fully or partially during this period. In the two weeks before Christmas, keeping your office closed and keeping employees working from home may allow employees to see vulnerable relatives over Christmas with less risk. After Christmas, a different motivation may be present. With increased mixing over Christmas, there is likely to be a greater risk of transmission of the virus between employees in the two weeks after Christmas. From a health and safety perspective, if it is possible for employees to work from home during that period, this would be sensible.
Can I force reluctant employees to return to the office?
Employers should think very carefully about making it compulsory that employees return to the office at this juncture, if they are able to work from home. Given the clear Guidance in place, requiring employees to attend the office in breach of that Guidance, may raise a number of employment law issues, including risks of whistleblowing claims, detriment, and possibly breach of trust and confidence.
Can we hold face-to-face meetings?
Although the Regulations do not prohibit independent working in the office, the Regulations do set out strict restrictions on what employees can do when they attend the office if (a) the office is located in a Tier 2 or Tier 3 area; or (b) the employee lives in a Tier 2 or Tier 3 area. In either scenario, the employee is prohibited from participating in a gathering of two or more people where the people are from different households, unless “the gathering is reasonably necessary… for work purposes." Our view is that gatherings for social purposes are therefore prohibited by law under the Regulations, including team lunches and other purely social events.
There is no minimum time period for a gathering to be caught under the Regulations; so, in theory, even a short social chat about non-work matters when meeting a colleague in the corridor could be in breach of the Regulations. Even for those under Tier 1 restrictions, gatherings are limited to six people unless “reasonably necessary… for work purposes”.
Employers should also consider whether gatherings between employees, and between employees and clients or other third parties, meet the “reasonably necessary… for work purposes” test, including internal meetings, business lunches and other hospitality. It is unclear whether, in order to meet this test, employers will need to show that the meeting or event could not have taken place remotely or elsewhere (for example, in a COVID-secure office); or whether the test is met simply by showing a sufficient business reason for the meeting. Given that breaching the restrictions on gatherings is a criminal offence under the Regulations, employers may want to err on the side of caution and take a conservative approach when assessing whether a meeting or event is reasonably necessary for work purposes.
Kerry Garcia
Sarah Taylor