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What changed yesterday (19/02/22) for employers?

On 19 January 2022, the government announced that it will no longer be asking employees to work from home. It will now be up to employers to decide whether to ask their employees to return to the office and indeed, in his statement to the House of Commons yesterday the Prime Minister said that “people should now speak to their employers about arrangements for returning to the office”.

Should employers begin imposing new arrangements?

Although employers could now require a return to an employee’s place of work, mandating an immediate change to current work-from-home arrangements runs contrary to the government’s advice to implement any return to the workplace gradually and is unlikely to be well-received by employees.

Instead, employers are advised to transition to new/previous arrangements over a period of weeks or months. To ensure that adjustment is as easy as possible, employers should ensure they adopt a flexible approach and have clear and well-communicated health and safety and return-to-work procedures.

What if an employee does not want to return to the workplace?

Employees have the right to request a change to their employment contract under the Employment Rights Act 1996, provided they have at least 26 weeks service. Most notably they can request a change to:

• the hours they are required to work;
• the times they are required to work; and
• where, between their home and their place of business, they are required to work.

Following the introduction of homeworking, and potentially with the practical issues and personal health concerns that have arisen over the course of the pandemic, employees are more readily making requests for amendments in these areas, especially in respect of homeworking. Employers will need to engage with any request, and meet with the employee to discuss the practicalities of such a change.

Employees may only make one request every 12 months, and an employer is not required to accept or implement any request. However, employees can bring claims to the Employment Tribunal if employers do not act reasonably, do not notify employees of a decision on a request, or reject the request for a reason which is not permitted. There are a limited number of reasons to deny such a request, including but not limited to:

• detrimental effect on ability to meet customer demand;
• burden of additional costs;
• inability to re-organise work amongst staff; and
• detrimental impact on performance.

Whilst each of these could previously be used as good reason to deny homeworking and other alterations (in the right circumstances) employers should note, now that homeworking and other alterations have been tried and used, that it may not be as easy to suggest there would be additional costs or a detrimental impact on performance, if arrangements have worked well to date and are now readily available having been arranged previously.

Employment Tribunals or the Government may yet distinguish between the effectiveness of such measures whilst they were commonplace (and in fact mandated during certain periods) and normal working practices, but how they will balance business needs against employee protections during this transition remains to be seen. An employer who is therefore faced with a request for a permanent change to their contract to allow homeworking, should carefully consider if such a request can be accommodated, and should seek advice where required on how best to handle the process, and what rights they and the employee have.

What are the other key areas employers should consider as staff return to the office?

Role and Responsibilities upon return

Given that many businesses have been forced to adapt significantly over the course of the pandemic, some employees may not return to the same role they held before they left the office.

The first port of call is an employee’s contract, which may allow for some changes, but there may be limitations on this or a process that needs to be followed, and each contract should be read fully and advice sought where needed. If there is no express provision in the contract to permit changes the employer will need to agree any changes, temporary or otherwise, with the employee. Even where there is an allowance in the contract, consulting is advised to ensure that the proposed change will work for both employer and employee, and to avoid potential practical issues that may arise.

Health & Safety (including Mental Health)

Employers should consider how they can make the transition smoother to prevent any ‘Return-to-work’ anxiety and make employees feel supported in their return:

• Ensure employees are given plenty notice of when they are expected to return
• Outline procedures and any Covid policies they will need to follow so they know what to expect
• Consider whether a phased return would benefit all or some members of your workforce
• Communicate regularly and monitor staff wellbeing
• Consider a mental health training session for your employees – Leathes Prior can offer this service

Social Distancing

Employers may need to consider social distancing when determining how many employees they can have return, taking into account office space, resources and potential customer or clients coming to the premises. It is important for employers not to get too carried away with drinks, parties, events, and training days. Although it may be tempting and seem like the perfect time to host a large catch-up, employers should protect themselves against an outbreak soon after employees return to the office.

Testing & Isolation 

All workers (including agency workers) remain under a legal obligation to inform their employer if they are required to self-isolate. Employers will commit an offence where they knowingly allow a worker who should be self-isolating to attend the workplace. Disruptions caused by self-isolation may have been limited by flexible working arrangements but employers will need to ensure that adequate systems are in place to avoid breaching their obligations or any operational difficulties as a result of self-isolation absences.

Conflict management

We anticipate that, as staff start to return to the workplace in earnest, instances of workplace conflict will increase as physical contact with co-workers may mean the resurfacing of issues which have been suppressed by time apart. Equally, the challenges of adapting to new ways of working, and differing attitudes towards COVID risks may also strain relationships. Recognising the increased risk of conflict and tackling issues early and properly will be crucial in managing the return to work, and avoiding the financial and operational impact workplace conflict can have.

Moving to a permanent hybrid model

Whilst of course the end to work from home guidance will lead some employers to call their employees back to the office, others may see no reason to do so, having found success in adopting a hybrid or fully-remote working model. Making this permanent transition is not without its pitfalls and employers should seek advice to ensure that their obligations particularly in relation to employment contracts, insurance policies and data protection and health and safety regulations have been properly met.

Conclusion

The significant financial toll the pandemic has taken means that many employers will understandably be under huge pressure to extract maximum revenue out of their business and will require their employees to return to work in a way that will assist that financial necessity; many employees, though, will face significant personal and practical obstacles to their return to the office.  Leathes Prior recognises that employers need both legal advice and commercial guidance, taking the benefit from our Employment Team of the overall perspective we gain from seeing what many employers and businesses are doing.

If your business needs help as you strive to bring employees back to the office – please be in touch via email or call us on 01603 610911.