Returning to the office post-lockdown

By the BBS Employment Team, June 2021

It has been almost 15 months since the UK first went into a national lockdown and there is now some light at the end of the tunnel…the vaccine programme is being successfully rolled out and the government roadmap aims for all social distancing restrictions to be lifted from 21 June 2021.  Currently, the government guidance remains that people who can work from home should do so, and where working from home is not possible businesses should ensure that any return to the workplace is in line with Covid-secure workplace guidance.

“It is hoped that we can begin to return to some sort of pre-pandemic ‘normal’ in the coming weeks and with that in mind many businesses are now taking stock and considering how the past 12 months have impacted and will reshape their operations in the months ahead.”

Over the past year the majority of office-based businesses were forced to alter their working practices, with home/remote working becoming the norm.  With the correct checks and I.T infrastructure in place many of our clients have drawn positives from the new working style, including a better work/life balance, cost savings, more flexibility and agility.  However, along with the positives many clients also agree that working in a traditional office environment still has its advantages, including the collaborative nature of being with colleagues and the importance of social interaction, face to face and not via Zoom!  As the possibility of returning to the office is now on the horizon many of our clients have raised questions around their employees return, and we address some of the common queries here:

Can we introduce a hybrid policy (a mix of home and remote working) and do we need to change our employee’s contracts of employment?

Yes, you can introduce a hybrid working policy, this may include a structure of 3 days in the office and 2 days working remotely for example.   We would not advise making formal contractual changes to contracts of employment immediately as over the coming months the working world is likely to continue to change and businesses may need to make further adjustments in the short to medium term as they adapt.  We recommend that a hybrid way of working can be implemented with an initial trial period (for example 6 months), following which a business can reassess if the hybrid approach is working successfully, and if any alterations need to be made.

Can we insist that all our employees have the vaccine when it is made available to them?

Businesses should be mindful that making vaccinations compulsory is likely to give rise to arguments over human rights violations and potential litigation involving discrimination for employees with protected characteristics.  There are very few examples where an employer would be able to fairly dismiss an employee who refuses to be vaccinated.   We would advise against any policies making vaccinations mandatory and recommend that employers consider whether insisting on the vaccine is proportionate and necessary.

Do we need to provide employees with equipment to work from home and do we need to pay employee’s remote working expenses?

Generally, we would advise that a business should provide employees with the essential tools that they need to carry out their day-to-day duties. For office-based employees this would usually include a computer and or telephone. There is no legal requirement for a company to provide employees with equipment such as desks and chairs.  If a business opts to continue with home/remote working post 21 June 2021, business leaders should consider and discuss with employees their individual home set ups, in order to ensure that it is conducive to effective and safe working.  It is also recommended that risk assessments and Display Screen Equipment (DSE) assessments are carried out for employees in order to comply with health and safety legislation.

With regards to expenses, employers do not need to cover the costs of electricity and broadband for example, unless there is an express contractual provision for them to do so.  Employees can apply to HMRC to claim a tax allowance in circumstances where their employer requests that they work from home.

Can employees request to continue to work from home when the business wants a full return to the office?

Yes. Employees with 26 weeks’ service are entitled to make flexible working requests. This was the case pre-pandemic and remains the position.  If a business receives a flexible working request, it should consider the request fully and if it cannot be reasonably accommodated a business can refuse the request if it falls within one of the following 8 reasons;

  • extra costs that will damage the business
  • the work cannot be reorganised among other staff
  • people cannot be recruited to do the work
  • flexible working will affect quality and performance
  • the business will not be able to meet customer demand
  • there’s a lack of work to do during the proposed working times
  • the business is planning changes to the workforce

The difficulty that some businesses may face when considering flexible working requests following the pandemic will be that many of the reasons given for refusing a request historically, for example flexible/home working will affect quality and performance, could be challenged by an employee following a year of successful homeworking.  As such businesses should consider any requests carefully and seek specialist guidance on the correct process to follow.

We envisage that many businesses will choose to adopt a more flexible approach to working in the coming months, including hybrid working.  Moving forward all businesses will need to review their workplaces and operations and the employment team at BBS Law are available to discuss any questions that you may have in relation to returning to the office, including drafting and implementing new policies.

Should you require any further information or have a specific query you can contact Paul, Vicky, Neal or Sarah in the BBS Law Employment team on 0161 832 2500.