Flexible working and Covid-19: What are the rules on returning to the office?
5th October 2021
When Covid-19 restrictions were lifted on 19 July 2021, it was open to workers in England to return to the office or other workplace. A gradual return was recommended by the government, with employers required to follow official safety guidelines for keeping employees safe.
Employers can decide whether they want workers to return, with the prime minister saying it is up to businesses and their staff to ‘work out for themselves’ who will return and how this will be managed.
For many, working from home has shown the benefits of flexible working, including avoiding a commute and being able to enjoy their own surroundings. Increased focus and a better quality of life have also been reported.
Those who have worked for the employer for 26 weeks or more have the right to ask for flexible working, which could be permanent working at home or a combination of home and office time.
Employers need to consider whether flexible working would be possible for an employee. If they consider that it could impact performance or have another valid business reason not to agree, they can refuse the request. The employee cannot ask again for another twelve months.
Where working from home has been successful during the pandemic, it could make it harder for businesses to refuse flexible working for the future.
At present, employers must still keep workers safe and manage risks by following the guidance issued for their sector, which includes issues such as keeping buildings ventilated, cleaning the workplace, the use of screens and encouraging testing.
Even where an employee has reduced costs because of home working or hybrid working, it is not open to an employer to reduce their salary. It is possible that outgoings could be substantially less where someone has bought a home further away from their place of work, with a lower mortgage and reduced petrol and parking costs. But salary cannot be reduced without the consent of the worker without risk of a legal challenge.
Where workers are vulnerable, reasonable adjustments should be made for them, particularly if they are classed as disabled. This could include allowing them to work at home, especially if they are worried that colleagues have not taken up the vaccine. Where they are coming into the office, enhanced protection could be implemented, including screens, social distancing and reducing the number of people they have contact with.
Employers may also have to consider other aspects when requiring vulnerable workers to attend their place of work, such as their need to rely on public transport. Changing hours so that they can avoid the most crowded times could be an option to address this.
A phased return to work may help employees feel safer, with the opportunity for the employer to make adjustments to safety precautions as necessary.
It is not lawful for employers to insist that employees have the vaccination, with the exception of those working in care homes. Similarly, employers will not be justifiably allowed to hire someone or make them redundant on the basis of whether or not they are vaccinated.
Claims over enforced return to work
Where someone refuses to return to work and is dismissed or leaves because they feel they have no other option, they may potentially be able to bring a legal claim against their employer if they can show that the dismissal was on the grounds of health and safety, i.e. where the threat of infection was serious and imminent, or their health and safety was or was likely to be endangered.
Managing a return to normality
Over the coming weeks and months, employers and employees will need to work together to strike a balance between the needs of a business and the rights of employees. The lockdowns have shown that for many that working from home can be done successfully, reducing the scope for employers to simply cite productivity as a reason for refusing a flexible working request.
More agile and flexible arrangements are likely to become widespread, with remote and hybrid working benefiting many, who are reported to largely want to continue the new way of working.
For employers, as well as ensuring a safe environment at work, an investment may be necessary for setting up more robust technology for home working, including the right technology and equipment and adjustments to the way supervision and training are handled.
Consultation with employees will play an important part, with employers needing to reassure them that not only will they be safe at work, but that preferences that relate to their quality of life are being considered as well.
Change can often increase the likelihood of disputes and misunderstandings. Careful management of the period of adjustment will be vital in avoiding disagreements and potential legal action. As ever, communication will play a huge role in helping everyone feel that they are being listened to and know that their concerns have been taken into account.
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The above information is for general guidance on your rights and responsibilities and is not legal advice. If you need more details on your rights or legal advice about what action to take, please contact a legal advisor.