Until very recently, the overwhelming government advice remained to work at home where that was possible. That seems to have now shifted slightly, with indications being given that a return to a more “normal” life should be encouraged.
We are being asked whether employers should now be insisting that everyone returns to work, even where they have been successfully working at home.
The short answer is no, employers do not need to feel it is essential to get their employers back into the workplace where successful working from home patterns have been established. Ideally, employers should discuss with their employees what their long-term aspirations are – some people may have found that they are working very well from home, and are able to be productive and may wish to continue. For some employees it may even have improved their productivity, and there is no need for an employer to feel they must change this. Where employees are happy working in their homes, the employer should consider their long-term wishes – it may be that some attendance in a workplace would be helpful, with some continued working from home. The main thing to remember is that the employer remains responsible for health and safety and should do a home-working health and safety audit if this is to be a long-term solution. Some employees may really find it hard to be based at home, and wish to get back to work, and the new guidance from the government is that this should be accommodated where it can be done safely. The answer is that employers are free to embrace the new flexibility that has been forced upon us all where they have found that it works for them, and to organise their working practices in a way that works for their business. Where there is a conflict between the employer’s wishes and the employee’s, then it’s wise to get advice to see whether the employee may have any sort of right to insist which they need to accommodate and how best to resolve this conflict.
We are also finding that there are very specific areas that employers are being asked about:
• What if my employees don’t have childcare?
There are many parents who are still without any form of childcare. Schools are only back on a limited basis (and limited hours) and many childcare facilities have not yet re-opened. In addition, it is well known that many people relied on grandparent support for childcare prior to the lockdown, and for many people, that is no longer an option due to the risk to the older generation.
During the holidays, it may be even more difficult. Many holiday camps have been cancelled. Many parents will therefore have continuing childcare issues which may effectively prevent them from returning to their workplace.
Even in September, although the schools are opening, at this point it seems that the majority are not providing the wrap around care that many parents relied on, so parents may be needing to do 2 school runs, and only be available between the hours of perhaps 9.9.30 and 2/2.30pm.
Employers should be mindful that a requirement for all employees to return to the workplace, regardless of their particular circumstances, may be a Provision Criteria or Practice that indirectly discriminates against women who statistically have the greater childcare responsibility. Employers should consider what arrangements can be made for employees with ongoing childcare issues, such as allowing them to continue to work from home, or with flexibility regarding the times they work, where this is possible.
An employer who dismisses an employee in these circumstances will risk a successful discrimination claim. Employers should be mindful that the employee’s childcare difficulties will likely be temporary and may be relatively short-term.
Alternatives could be to continue to fully furlough the employee until October, or allow them to take annual leave, parental leave, or unpaid leave to cover the gap in their childcare provision.
• What about my employees who were shielded, or are clinically vulnerable?
On 22 June 2020, the government announced that, from 1 August 2020, the guidance in England will be relaxed so that clinically extremely vulnerable people will no longer be advised to shield and will be able to return to their workplaces, as long as their workplace is COVID secure, adhering to the guidance available
An employer cannot decide to keep an employee on furlough because they are shielding while returning others to work without running the risk of a discrimination claim (although not all shielding employees will have a relevant protected characteristic, the majority will do). Where a shielding employee is unable to work from home and wishes to return to the workplace before the government guidance advises they should do so, the position is akin in many respects to where an employee wishes to return to work while they are still signed off by a doctor
Broadly speaking, where there is no evidence that the employee is fit to return to work or, despite evidence, the employer still has reasonable concerns, the employer is not obliged to allow an employee to return to work when they are signed off sick and it may be appropriate to ask them to remain at home while the situation is clarified. An employer may wish to seek expert medical evidence on whether any further adjustments could be made to the workplace to minimise the risk to the shielding employee. However, it would be inadvisable for an employer to allow a shielding employee to return to the workplace against government advice before 1 August (in England) or the other relevant date.
After this time, shielded and clinically vulnerable people will be in the same situation for employers – they will require a higher degree of protection than those not in this category. It may be that the employer adjusts their working duties (if it is not possible to ensure their return to work is safe for them in the normal jobs).
• What about my employees who are struggling to get into work?
This is an issue, now that public transport is much reduced, and also a higher risk activity.
Some employees may genuinely struggle to get into work, and the employer should be sympathetic to this. An employee in the vulnerable category (above) may reasonably say that travelling to work on public transport is too high a risk activity for them. If they are unable to get to work without this, then the employee may be able to insist on staying at home. Where they have not been furloughed and this is not an option, then the employer should take advice about whether they can be put on sick pay or should receive full salary. Ideally, the employer will find them work to do from home, or perhaps organise transport in a different way – if another employee could pick them up in a car, this may resolve the issue. The employer would need to contribute to petrol costs, and perhaps to additional cleaning costs in this instance.
Employer should look into schemes to assist employees with buying bicycles for commuting, such as the cycle to work scheme which allows employees to obtain commuter bikes and cycling accessories through the employer, spreading the cost over 12 months and making savings through a tax break. Investing in secure bicycle storage is another way to encourage this commute, and providing a place for employees to change their clothes on arrival would also be useful – ensuring that such facilities are covid secure.
For those employees who can drive, the employer may need to consider parking facilities. Where there is no on site parking, then loan to allow the employees to obtain monthly or annual parking permits nearby may be a good option. If an employee has a specific need – perhaps due to disability or other vulnerability, then the employer may look to provide on site parking if that could be a short term solution.
Staggered arrival and departure times is another excellent way to help employees deal with the actual journey to work, as well as helping with keeping social distancing in place when employees arrive and leave the premises. The same for any breaks or lunch periods – encouraging employees to take these in staggered periods.