With the lifting of COVID-19 legal restrictions in England on 19 July 2021, David Ashmore (Partner) and Alison Heaton (Knowledge Management Lawyer) from the Reed Smith employment team comment on the key issues/hot topics for employers.
What is changing on 19 July for employers?
The instruction to work from home if you can is being lifted from 19 July 2021. From this date it will be up to employers to decide whether employees should return to working in line with pre-COVID arrangements, retain the current work-from-home set-up, or move towards hybrid working.
Can an employer impose new arrangements from 19 July?
Although employers could require a return to a contractual place of work from 19 July, mandating an immediate change to current work-from-home arrangements is not recommended – not only does it run contrary to the government’s advice to implement any return to the workplace gradually, but is unlikely to be well-received by employees. Instead, employers are advised to prepare for a transition to new/previous arrangements over a period of weeks and months. Having a clear, robust and well-communicated health and safety and return-to-work plans, and adopting a flexible approach wherever possible, will allow for an easier adjustment. Where the employer wants to make changes to contractual arrangements, they will need the employee’s consent.
What if an employee does not want to return to the workplace – is that redundancy?
No. Where the employee is not willing to return to work, and alternative arrangements cannot be agreed, this will not be a redundancy situation (as redundancy only arises if the business closes, there is a closure of the workplace, or where there is a reduced need for employees).
How should employers deal with return-to-office anxiety?
Numerous circumstances may make some individuals reluctant to return to the workplace or previous working arrangements, certainly in the near term. Employers are encouraged to have an open dialogue with staff, taking time to understand each individual’s unique challenges and preferences, and to provide a supportive and flexible approach to find a mutually agreeable solution. They will need to be particularly vigilant in circumstances where the reluctance to return is linked to concerns about health and safety, and act reasonably when responding to concerns. Where it is not being offered, employers can perhaps expect to see a surge in flexible-working requests, and will need to treat these with care – where employees have successfully worked from home and/or flexibly during the pandemic, it may be harder to justify rejecting requests seeking to make that a more permanent arrangement.
What about employees who are working from home overseas?
The practicalities and legal issues associated with cross-border remote working are not straightforward for employers to navigate, but despite the complexities this type of arrangement can be workable if carefully managed. Immigration, tax and social security, data protection and IT security considerations may all be relevant depending on the specific circumstances, and employers will need to take care to understand when and where staff are working abroad to avoid inadvertently creating problems in these areas. Having a remote-working policy which covers being abroad will also help set and manage expectations and obligations on employees. Please listen to a recent podcast on the issues with employees working abroad.
Can employers make office-based work conditional on regular COVID-19 testing?
Yes. It is open for employers to implement a policy to require regular testing (or other health screening) as part of their health and safety measures and prerequisite for attendance at a workplace. The government has extended the availability of free lateral flow tests, although employers could also arrange for regular private testing. Employers adopting this approach will need to remain mindful of their data protection obligations and also have a clear and fair plan in place for managing positive test results, or how to respond to those who refuse to be tested or share their results.
Can employers make office attendance conditional upon being vaccinated?
This is a thorny issue. With the exception of care homes, the government has left it for businesses to determine their approach to how the vaccination programme interplays with working arrangements. Mandating a vaccination for ongoing employment, or attendance at a workplace, is not prohibited but employers will need to take into account a range of issues – the need for flexibility to take account of potential discrimination concerns, managing staff dissatisfaction, and the practicalities of implementing such a policy. In practice this means many employers are taking an approach of encouraging employees to get vaccinated by providing information and support to encourage staff to have the vaccine, for example offering flexibility to enable time off during working hours.
What are the other key points employers are (or should be) thinking about?
Policies and procedures: Where home working or flexible arrangements are set to continue, employers should ensure that they have appropriate policies in place to cover the particular nuances arising from agile or remote working. Issues such as whether there are any parameters over where working is permitted (e.g. does ‘home’ include co-working spaces or the local café?); maintaining confidentiality if working outside the home; data protection; IT security; and employee monitoring will be especially important, and where an employee may be based overseas, additional issues arise (see above).
Staff management and wellbeing: Employee engagement, communication and wellbeing are always important but will continue to be where there are a variety of different working arrangements among employees. Managers will need to take particular care to ensure that those who are working remotely are not disadvantaged in favour of those who are in the workplace. Running effective hybrid meetings is expected to be the next practical challenge to overcome, and managers will need to continue to hone their skills in spotting discreet signs of difficulties where in-person contact is limited.
Conflict management: It is anticipated that workplace conflict will increase as staff start to return to the workplace – physical contact with co-workers, the resurfacing of issues which may have been supressed by time apart, the challenges of adapting to new ways of working, and differing attitudes towards COVID risks all create an opportunity for relationships to become strained. Recognising the increased risk of conflict, ensuring effective conflict management, and tackling issues early and properly, will be crucial in managing the return to work, preventing the irreparable damage of relationships and limiting the financial and operational impact on the business.
Self-isolation: Workers (including agency workers) are required to inform their employer of an obligation to self-isolate, including the start and end dates, and an employer commits an offence (and is subject to fines) where it knowingly allows a worker who is meant to be self-isolating to attend the workplace. Disruption may be limited where working from home is possible during periods of isolation, but employers will need to ensure they have and maintain adequate systems in place to avoid breaching their obligations, and have a contingency plan in circumstances where self-isolation absences could pose operational difficulties.