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Covid-19: To Return to Work or Not?

Posted on 16th June, 2020

At the time of writing, government guidance is to “stay alert” and only go to work if you can’t work from home. On Monday 15th June 2020, non-essential retail businesses can re-open if they can meet 5 key safety tests:

  1. To carry out a Coronavirus Risk Assessment
  2. Develop cleaning, handwashing and other hygiene procedures
  3. Take all reasonable steps to help employees work from home where they are able to do so
  4. To maintain 2 metre social distancing where at all possible.
  5. Where 2 metre social distancing is not possible, to manage the risk of transmission of Covid-19

It is widely reported that the UK’s economy will enter a recession (or even a depression) post Covid-19 and it begs the question whether employers need to spend large sums of money renting expensive commercial premises in city centres if the job can be done from home at a fraction of the cost. Instead, employers can act in accordance with Step 3 of the government’s guidance and take all reasonable steps to help employees work from home.

Anecdotal reports suggest that there is likely to be a sea-change in terms of our flexibility in our working arrangements in the future, after many of us were forced to work from home due to Covid-19. Some employees will have been able to continue to work from home after lockdown has been lifted, and will continue to do so, with little or no difference to their performance and output. Some have been “making do” with working from home, often balancing that with childcare responsibilities, and have seen their productivity nosedive and are desperate to get back into the workplace and some semblance of “normality.” Others whilst fit for work are “shielding” or “self-isolating” or caring for those shielding or self-isolating.

Everyone’s circumstances are different and one size never fits all. Some people live alone and enjoy, or even, need the interaction with colleagues in the office, especially if they suffer from underlying mental health conditions such as anxiety and depression (the effects of which may in some circumstances be considered to be a disability under the Equality Act 2010). On the opposite end of the spectrum, working from home may not be feasible if the employee has young children and no childcare or shares their home with others who are similarly working from home. Some homes may not be suitable for home working (consider a one bedroom flat or apartment with little or no space for a desk) or those in cramped shared accommodation with parents or housemates vying for space and WIFI.

The culture of work will have to change for most organisations. Catching up via Zoom or Teams has been great in the short term, but is it really how you would want those difficult conversations (such as disciplinary or performance meetings) to take place? There is no doubt that the subtleties of eye contact and body language is lost via WIFI. Some employees may feel disengaged working solely from home and may lose that sense of comradery felt working for their team or organisation.  Employers will have to find ways to engage with their employees who work from home which differ to how they engage with those working in the workplace. Employers will have to ensure that they have systems in place to check performance and productivity but should also find ways to protect the health and well being of those who are tempted to sit at their laptop for eight hours without a break.  Note the Working Time Regulations 1998 state that employees are entitled to a 20 minute break after working for six hours.

Employers owe a duty of care under section 2(1) Health & Safety at Work Act 1974 to ensure in so far as is reasonably practicable the health, safety and welfare of its employees. Failure to do so is a criminal offence and can also lead to a civil claim for damages. Section 100 of the Employment Rights Act 1996 provides that an employee in circumstances of danger which the employee reasonably believed to be serious and imminent and which he could not reasonably be expected to avert leaves or refuses to return to his place of work, is regarded as being unfairly dismissed. There is no requirement for the employee to have two years’ service and there is no upper limit on compensation. Those employees who have made a whistle-blowing disclosure regarding their health and safety are also afforded protection from detriment and dismissal  under s. 47B & s.103 of the Employment Rights Act 1996.

It is important therefore, that employers consider the physical and mental health of employees working from home as well as on their premises. Whilst we have all made some sacrifices and allowances during the pandemic (anyone working at the dining room table, sitting on a hard dining room chair with a laptop stacked on a pile of books?), the same ergonomic considerations apply when working from home as they do when working in the office. Employers should consider DSE risk assessments for work stations in the home as well as in the office and provide suitable desks, chairs and other equipment to make home working as seamless and comfortable as possible. It goes without saying that employers should also ensure that employees have all the necessary hardware and software they need to do their job effectively and efficiently without passing any of the cost on to the employee. Consideration should also be given as to whether contributions should be made towards the costs of the employee’s heating, lighting, phone line, broad band etc (currently £6 per week can either be claimed from the employer or claimed back from HMRC in the form of tax relief) and whether any additional home/business insurance might be required.

Employers should have an open dialogue with employees regarding their individual home working arrangements to see whether home working is feasible and if so what measures need to be put in place to make it work for that individual. Once the arrangements have been finalised, any changes to their terms and conditions of employment should be agreed with them and those changes should be documented and preferably signed off by both parties.

Employers should also review their policies and procedures in light of those working from home. The most obvious policy to review is the health and safety policy to ensure it covers those working from home but also employers should also consider implementing or reviewing home working and lone working policies. Consideration should be given to reducing the need for business travel and instead using technology to meet clients virtually.

During the transition phase between Covid-19 and the post Covid-19 world, employers should review absence policies. For example in relation to a sickness absence procedure an employer may want to review the policy to accommodate those shielding/self isolating; to provide flexibility in the timescale for provision of a GP fit note; and the trigger points for welfare meetings and disciplinary action or dismissal. Employers should also reconsider parental and dependant care leave policies, annual leave policies and flexible working policies in the post Covid- 19 world.

Personally, I suspect the future for most is a combination of working from home and working from the workplace. If employees work from home the majority of the time, this means that there are less people in the workplace and this makes social distancing easier in the short term. It also lessens the burden on public transport at peak travel times. As the virus can live on surfaces for up to 72 hours some employers are considering fixed work “bubbles” as a way of operating in the future. In practice this means that say half the workforce work from home at any given time for say three days per week and then work in the workplace on the remaining two days per week. Consequently, the other half of the workforce work the opposite work pattern, with perhaps a day in the middle and at the weekend for deep cleaning. This enables social distancing and the cleansing of shared equipment (e.g. photocopiers) between each shift. Each “bubble” remains separate and do not meet. It also has the beneficial effect that if one person in the bubble becomes infected with the virus only those in that bubble need self-isolate for 14 days and those in other bubbles are unaffected such that the employer still has a healthy workforce to rely on and hopefully can continue to trade rather than potentially all of the workforce having to isolate as a result.

Whatever the post Covid-19 future holds, we will all be adapting to a “new normal.”

Sally Lomas Fletcher, Associate Solicitor, Employment





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