National restrictions in England ended on 2 December 2020 with England moving into a new regional, tiered approach. But what does the latest legislation and guidance say about office working and what are the implications for employers?
Working from home is likely to be more viable for office based workers than many workers in other sectors such as leisure, construction, retail and hospitality. The question of whether office workers should work from home or the office from 2 December 2020 needs to be looked at in the light of the regulations introducing the new tiered system (the Regulations) and also the latest government guidance applying from 2 December 2020.
When determining a policy around working in the office, there are two key considerations for employers to take into account:
- First, the new rules contained in the Regulations around restrictions on gatherings and how those rules apply to being in the office or holding a work related meeting outside the office, such as a restaurant; and
- Secondly, the government guidance on working from home.
The restrictions in the regulations on gatherings
The new rules contained in the Regulations provide restrictions on the circumstances in which two or more people may gather together in the same place in order to socialise or undertake any other activity. There is a long list of exceptions to this rule - one being a gathering which is "reasonably necessary for work purposes".
The Regulations do not prevent people from going into the office and attending on their own (such as in a private room) but they will have an impact on what happens when they meet with others, whether that be in the office in a meeting room, a corridor, the bathroom or the work canteen, or in premises outside the office, such as a business meeting in a restaurant.
The practical effect of the new rules is that if it is reasonably necessary for employees to work together, or to meet with clients or suppliers for business purposes, then on the face of it the “gathering” would be allowed. Such a gathering could take place in the office or in another place such as a restaurant or pub.
A clear cut example of a permitted client meeting at the office might be where a meeting simply cannot take place remotely in circumstances where a client does not have an adequate broadband connection at home and where documents need to be viewed and discussed.
However, where people can successfully conduct a meeting from home and meet the work purpose of the meeting, or the work purpose of a meeting could be just as easily be met by people interacting remotely, then it is clear that it is not "reasonably necessary" for an individual to attend work or for a meeting to be held in person. Ultimately, if the reason for attending the office or meeting in person results from simply a "preference" then the test is unlikely to be met. However if there is a "reason" for meeting or attending the office, that needs to be identified and if it can be sensibly concluded that that "reason" means it is necessary for that office attendance, or meeting, to take place, that will be in compliance with the guidance.
This does need to be considered carefully though, because any gathering for work purposes which is not "reasonably necessary", will be a breach of the Regulations which is an offence and could result in a fine.
Government guidance on working from home
The latest government guidance on working from home is slightly inconsistent at the time of writing on 3 December 2020. Before the November lockdown, working from home was recommended if the work could be done "effectively", but employers had the discretion to decide, in consultation with their employees, if that was the case.
In the new local tier guidance which applies from 2 December the government guidance for all tiers says "[e]veryone who can work from home should do so." The word "effectively" appears to have been dropped. The government's Winter Plan also uses this wording. However, other guidance on the gov.uk website (such as the guidance Working safely during coronavirus guidance for offices updated on 1 December and the guidance Working during coronavirus if you cannot work from home) still retain the word “effectively” in some places. It is currently unclear if this other guidance is yet to be to aligned with the new local tier guidance.
If the word “effectively” has indeed been dropped (and this will likely become clear in the coming days as the government continues to update its guidance), this potentially means the government’s message around working from home has become stricter than it was before the November lockdown and people should not be going to the office simply because they work more productively in the office or prefer to work there, where they can do their work from home.
If, on the other hand, the government’s intention is to retain the word “effectively” as opposed to a stricter “can/cannot” test, then in the context of the guidance as it currently stands, employers have a greater discretion to decide, in consultation with their employees, whether the work can indeed be done effectively from home. Adding the word “effectively” arguably confers a more flexible approach to the decision on whether home working is workable - and suggests that the employer and employee may take into account other reasons based on the longer term nature of the issues we are now dealing with, as to why work cannot be done "effectively" at home, or why it is necessary for someone to be in the office (at least on a reduced basis). We have written more about this approach in our earlier client alert.
In either case, whether the word “effectively” is retained or not, the government's COVID-19 Winter Plan does recognise that there are specific reasons why attendance in the workplace may be needed, including mental health issues or concerns and/or a need to work on-site physically. This is helpful for employers and employees who wish to go to the workplace in order to work.
Whatever the case may be, employers and employees should make sure there is a specific reason why the employee needs to be in the office. Employers will want to consider the processes that they have in place around any attendance in the office, and ensure they are happy proper consideration has been given to this and records are retained as appropriate. This will also need to be reflected in the COVID-19 workplace risk assessment and actions should be taken to manage the risks of transmission in line with current government guidance.
Travel between tiers to attend work
The latest guidance says that where people cannot work from home, they should continue to travel to their workplace. Across all tiers the advice is to walk or cycle where possible, plan ahead and avoid busy times and routes when travelling.
People in tier 3 are required to avoid travelling outside their area including for overnight stays other than where necessary. Work is cited as one of a list of reasons why it might be necessary to travel outside their area. We do think there is potentially a higher test in relation to work attendance when travelling from a tier 3 area, or into a tier 3 area of whether that travel is "necessary". It is hard at this stage to translate this into practical terms – but we would suggest that employers follow their normal processes in relation to considering the attendance of a person in the office, who is travelling from a tier 3 area (or potentially in the future into a tier 3 area) – with an added "rigour" to ensure you can conclude that travel is "necessary".
Stop Press: We understand the rules in relation to business travel are in the process of changing, and we will provide a further update on this shortly.
The Regulations also allow certain “permitted organised gatherings” to take place across all three tiers. This would allow business events to take place at certain venues, other than a private dwelling. Numbers of attendees are limited by government guidance rather than the regulations. Different rules apply depending on which tier the business event takes place. In tiers 1 and 2, public attendance at business events can resume inside and outside, subject to social contact rules and limited to whichever is the lower: 50% capacity, or either 4000 people outdoors (or 2000 for tier 2) and 1000 people indoors. In tier 3 there should be no public attendance at large business events.
Health and safety
The government has updated its Working safely during coronavirus (COVID-19) (COVID-19) guidance which applies in a number of workplace settings in England (COVID-19 secure guidelines). It continues to be the case that all businesses and venues that are open are expected to follow COVID-19 secure guidelines to protect customers, visitors and workers.
Most of the sector guidance, including the advice for offices and contact centres now includes a "priority action" for employers to "consider the mental health and wellbeing aspects of COVID-19 for yourself and others." The requirement to increase ventilation by keeping doors and windows open where possible and running ventilation systems at all times has also been updated for winter for most sectors, including offices and contact centres.
The new guidance is likely to be in place for the entire winter period and so many office workers who have been working from home to date, are likely to be doing so for some time to come. Employers will need to consider requests for employees to work in the office carefully and make sure there are specific reasons why it is necessary for them to do so. For many employers, this will mean revisiting and adapting their working arrangements again.