Back to the future 2

While many key-worker employees have stoically continued to attend their normal workplaces throughout the covid pandemic, many employees have been furloughed, or working at home for over a year.

With the gradual release of lockdown, employers should now be turning their thoughts to the “new normal” and how they are going to manage the “return to the workplace”.

Some employers will want people back in the office full time, others will be happy to allow their workforce to stick with the remote working model. The majority will probably do a mixture of both.  But what are the legal implications?

It is inevitable that as soon as the government’s dictate of working from home if you can is lifted (likely to be no sooner than 21 June) employers will be at the receiving end of 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 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, and that in those circumstances, they may remain at home on full pay.

However, this line of argument can be given very short shrift if the employer has taken reasonable measures to minimise the risk of covid transmission and has clearly communicated this to its staff. In doing so, this reduces the chances of the employee being able to argue successfully that their belief in the danger posed is reasonable.

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. Employers can access lateral flow tests for use by employees and many do now require twice-weekly testing as a pre-requisite for being permitted into the workplace. This is arguably a reasonable instruction give that the “greater good” is likely to be given precedence over individual inconvenience.

The biggest thing to keep in mind is that although we are returning to normal, things are still very different and many of the challenges that employers will face are unprecedented. It may be that mistakes are made and tempers frayed, but the key point is that as long as employers act reasonably, they are unlikely to come a cropper from a legal perspective.

Thursfields have built our reputation by providing timely and practical advice to our clients.

We will tailor our approach to suit you and take your instructions in whatever way best suits you – by ‘phone, video conference or in person at our Birmingham, Solihull, Worcester, Kidderminster or Halesowen offices.

We have an excellent team of specialist employment solicitors to advise you, on work-related issues, always seeking the best solution for both employers and employees.

If you would like more information, please contact our Employment Law team at Thursfields Solicitors on 0345 20 73 72 8 or email info@thursfields.co.uk