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16/07/2021

Back to the Future

Employment Law -people in an office

With the gradual release of lockdown, employers are turning their thoughts to the “return to the workplace”.  But the return to the ‘new normal’ is throwing up a lot of difficult and, frankly, unprecedented legal issues.   

It is inevitable that as soon as the government’s dictate of working from home if you can is lifted employers will likely be at the receiving end of numerous requests to continue working at home for some or all of the time. 

A request to be based at home when the contract stipulates that the normal place of work is the office is effectively a flexible working request. Employers can agree to such a request on an informal basis, but it is still advisable to clearly document the terms of such arrangement going forward.

If you are going to deal with the request as a formal flexible working request and wish to refuse it, you will need to give some careful thought as to the grounds on which you are going to decline the request – particularly given the fact that people may have been working from home relatively successfully for months. 

Remember too that the employee’s reason for wanting to work at home is not relevant to your considerations – the focus is on the impact to the business. 

Employers may also have to deal with those who continue to be fearful of the covid risk. Much has been talked about of the right for employees to refuse to attend work if they have a reasonable belief that their health will be endangered by doing so.

However, if the employer has taken all reasonable measures to minimise the risk of covid transmission and has clearly communicated this to its staff, this reduces the chances of the employee being able to argue successfully that their belief in the danger posed is reasonable.   

Remember, however, that any complaint about health and safety at work is likely to be a ‘protected disclosure’ under the ‘whistleblowing’ regime, so make sure that you don’t subject an employee to a detriment (or even dismiss them) simply because they have raised a complaint (however irritating you may find it!)

Can you insist on mandatory vaccinations before allowing people to return?  Probably not, except in very limited circumstances. 

However, employers should certainly encourage the employees to take the jab – although be careful of the risk of indirect discrimination if you actively incentivise employees to be vaccinated because some employees will have a genuine medical reason as to why they are unable to take the vaccine. 

It is perhaps more reasonable to insist on regular testing. This is arguably a reasonable instruction given that the “greater good” is likely to be given precedence over individual inconvenience. 

We shall be exploring all these issues – and more – at our next Talk Legal webinar with the Head of our Employment Team on Wednesday 28th July from 10am. Book your free place here

If you would like more information, please contact Helena Morrissey at Thursfields Solicitors on 0345 20 73 72 8 or hmorrissey@thursfields.co.uk

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