The UK Government plans to proceed with the final step (step 4) of the roadmap to remove all legal limits on social contact from 19 July 2021. This includes dropping the requirement for people to work from home wherever possible. Enacting this final step marks a significant shift away from Government enforced legislation in managing the virus towards personal responsibility and giving businesses and individuals the freedoms to decide for themselves on how to approach COVID risk.
The Government acknowledges COVID-19 cases are on the rise and therefore, although restrictions will be lifted from 19 July, the advice and recommendation for individuals and businesses is to “continue to act carefully and remain cautious”. So what does this mean for employers? In this alert we look at some of the key issues.
Can employees still work from home?
From 19 July 2021, the Government will no longer instruct people to work from home, however the Government expects and recommends a “gradual return over the summer”.
While the end of the work from home guidance removes working from home as the default position, it is not likely to placate employee concerns over returning to the office. Those employees who travel to their workplace on public transport may now have greater anxieties, as trains and buses attract more commuters who, outside of London, will no longer have to abide by the requirement to wear face masks. Whilst it is a Government expectation and recommendation to wear face coverings on public transport, whether commuters take heed of this recommendation is yet to be seen.
Future working arrangements, including hybrid working should, where possible, factor in health and safety concerns raised by individual employees about returning to their workplace, especially for those who are clinically vulnerable. The employer should consider consulting with any affected employees on an individual basis and discuss to what extent reasonable adjustments can and should be implemented to help them, such as adjusting working hours, offering a phased return to the workplace or the choice to work full time from home. Employees should be suitably informed on how their workplace will operate once restrictions are lifted – this may help employees feel more confident about the return. A gradual easing back to the workplace and making particular accommodation for those concerned as far as possible is more likely to ensure a safe return to the workplace and encourage the return of the workforce.
Should employers still continue to employ COVID-secure measures?
The lifting of restrictions does not alter the statutory duty that employers have to ensure the health and safety of their employees, or an employer's duty of care to take all reasonably practicable steps for the safety of their employees.
Employers should still carry out health and safety risk assessments (including the risk of COVID-19) and take reasonable steps to mitigate the risks they identify. They should continue to follow the Government’s “Working safely during coronavirus guidance” which has a number of sector specific guides. Many employers have maintained a specialist "COVID committee" during the pandemic to deal with workplace matters and it may be premature to do away with this function immediately. Employers may decide to retain some existing measures to protect their employees, even where there is no longer a legal requirement to do so. In a continually changing landscape, employers will need to regularly re-assess the risks and should consider maintaining the following steps:
- frequent cleaning of the workplace;
- using hand sanitiser dispensers and one-way systems while the risk of infection remains;
- social distancing at desks or workstations;
- staggering start and end times to help avoid busy times on public transport;
- identifying poorly-ventilated areas and taking steps to improve air flow;
- ensuring that staff and customers who are unwell do not attend the workplace
- communicating to staff and customers the measures put in place; and
- updating policies on self-isolation, employees travelling abroad and flexible working.
These measures will also reduce the risk of workplaces having to close due to positive COVID cases within the workforce and may allow more targeted isolation.
Sufficiently robust workplace measures will give confidence to employees to return to the office. They may also pre-empt a situation where an employee tries to rely on their statutory protection not to be dismissed or subjected to a detriment for refusing to attend the workplace by having a reasonable belief that they are in “serious or imminent danger”. Given the success of the UK’s vaccination programme this claim may be an increasingly difficult one for an employee to win, but by preserving COVID-secure measures employers would be further minimising such risk.
Rebuilding workplace culture
For many employers, they will need to take proactive steps to rebuild an inclusive, engaging culture where divisions may have emerged in the workplace between those who were furloughed and those who continued working, and between those who are vaccinated and those who are not. Further divisions may occur between those who crave a return to the office and in-person interactions, and those who have become accustomed to working from home and want to continue to do so. Points of conflict may arise between those who are anxious about the risk of contracting COVID and those who take a less cautious approach.
Employers should reiterate core company values and expectations and re-evaluate company culture for a more dispersed workforce. Employers have the opportunity to instil values that have been previously overlooked, such as employee expectations around flexibility, with many now expecting a workplace culture that continues to support flexible working practices, particularly working parents who have experienced widespread disruption with home-schooling arrangements and childcare. Wellbeing support is another area that has developed considerably during the pandemic and employees have greater expectations of the support offered by employers for mental health.
Rebuilding and reformulating workplace culture, where employees remain physically distant and a level of employee absence and disruption is still expected due to rising infection rates, is a challenge all employers face going forward.
This is a tricky time for employers deciding how to navigate their journey on step 4 of the roadmap. If you have any questions on the topics covered in this alert please contact Natalie Edwards, Leanne Raven, Aaron Pooni or your usual Stephenson Harwood contact.