“Freedom Day” (the full lifting of all coronavirus restrictions in England) has been postponed until at least the 19 July 2021. If there is one thing that this pandemic has taught us, it is that life is unpredictable and Government guidance can change quickly and, often, without warning.
In anticipation of Freedom Day, many businesses will have made preparations for employees to return to the office, be that full time or a hybrid working arrangement. Whatever it is, this extra month will give employers time to refine their plans and consult with employees to ensure a smooth transition of staff back to the workplace.
Choy Lau (Senior Associate) and Emily Daly (Solicitor) highlight some of the key issues employers may face and provide tips on how to deal with these.
Can employers force employees to attend the workplace?
Whether it be on a full time basis, or a few days a week, some employees may understandably feel anxious about returning to the workplace whilst coronavirus continues to circulate and talks of new, more contagious, variants are rife.
Current Government guidance is that people should work from home, where they can. If they are unable to do so, they should travel to their workplace. However, once restrictions are lifted, this guidance to work from home will cease. Does that mean that employers can force employees back to the office? Whilst it is likely to be considered reasonable for an employer to request that employees return to the office or other workplace, employers should still tread carefully before taking disciplinary action or dismissing an employee for refusing to attend the workplace.
An employer will need to ascertain why the employee is reluctant to return. If an employee or worker refuses to return because they reasonably believe they are in serious or imminent danger then they are protected against detrimental treatment. If an employee is dismissed for refusing to attend the workplace in these circumstances, then that dismissal will be automatically unfair. The key question here is whether the employee’s belief that they (or others) will be in serious or imminent danger is reasonable.
As more and more people are vaccinated and we reach a level of “herd immunity”, it will become more difficult for employees to be able to rely on the risk of contracting coronavirus as a “reasonable belief” that they will be in serious or imminent danger at work.
In Rodgers v Leeds Laser Cutting 2020, an employee refused to attend the workplace until such time as (the first national) lockdown was over because he was concerned about the health and safety of his vulnerable children. The Tribunal found that he had not been unfairly dismissed. The Tribunal were not persuaded that, at the time, he had a reasonable belief in serious and imminent workplace danger. The Tribunal considered the employee’s behaviour outside of work, which included the fact that he had not self-isolated and he had driven a friend to a hospital. In addition, the employer had implemented safety measures at work in line with Government guidance and the evidence showed that there was no problem being able to socially distance with others at the workplace.
We would recommend that employers take the following steps when preparing for staff to return to the workplace:-
- Conduct a risk assessment and put in place safety measures to reduce the risks that are identified. Ensure that safety measures comply with current Government guidance.
- Consult with employees before they are due to return to work. Explain the risks and the steps that you have taken to ensure that the workplace is safe for their return. Listen to employees’ concerns and take steps to ally their fears.
- Seek legal advice before taking any disciplinary action or dismissing any employee that is refusing to return to the workplace because of concerns related to health and safety, disability, pregnancy (or any other protected characteristic).
Can an employee make a flexible working request to avoid returning to the workplace on a full time basis?
Employees that have been working from home during the pandemic, may resist returning to full time office working by way of a flexible working request. Employees with 26 weeks’ continuous employment can make such a request and employers have a duty to consider the request and make a decision within 3 months from the date a request is made.
Flexible working requests can take the form of varied working hours, working part time or working from home. So an employee that does not want to return to full time office working could make a flexible working request in order to make a permanent change to their contractual place of work.
The employer does not have to agree to the proposal to work flexibly, however, there are only 8 specific grounds for refusal. These were, pre-Covid, typically easier to rely on to resist a flexible working request. However, as businesses have had to adapt to home working, and most have done so quite successfully, it may be hard to refuse a request if employees have been working from home throughout the pandemic and the business has not suffered as a result.
Employers that receive a flexible working request should take legal advice on how to respond to such a request, bearing in mind that the process must be completed within 3 months of receiving the request and that a refusal is only permitted in limited circumstances.
Employers anticipating that employees might want to make a flexible working request, might pre-empt the formal request by having informal discussions with employees about their return to the workplace and agreeing temporary arrangements, on a trial basis, to give the parties time to see if the arrangements will work in the long run.
Can an employer require employees to undergo Covid testing?
Employers may seek to introduce Covid testing for employees in an attempt to make workplaces more “Covid secure”. The problem is that Government guidance on workplace safety does not include Covid testing in the list of steps that employers should be taking. Whilst some may feel reassured by regular Covid testing as a way to minimise the risk of Covid infections spreading in the workplace, some staff may refuse to undertake testing on the basis that it is not a Government mandate and they could feel that it is an invasion of their privacy.
An employer wishing to introduce a Covid testing policy will need to undertake a risk assessment and should only introduce such a requirement if it is considered necessary and proportionate to do so. In many cases, an employer may be better off introducing voluntary Covid testing instead of a strict requirement for all employees to test negative before attending the workplace.
Employers that do require Covid testing will need to consider what they do with the test results. In most cases there will be no need to store data of negative test results. Health data is “special category” personal data and attracts a higher level of protection under the UK GDPR. If an employee tests positive, employers should not disclose the identity of that employee to others. In most cases it will be sufficient to tell employees that there has been a positive test amongst their colleagues and advise them that they too should undertake a test or self-isolate for the requisite 10 days (akin to the way that the NHS track and trace app works).
Can an employer force employees to vaccinate?
Unless there is legislation requiring certain employees to be vaccinated (as is proposed for NHS and care home workers), it will be difficult to force employees to get vaccinated. Implementing a “no jab, no job” policy (as some employers have suggested they would do so) exposes the employer to claims for discrimination and unfair dismissal.
For more information on this issue, please see our previous bulletin by Adam Grant – “Jabs and Jobs; A Legal Analysis”.
The employment team at Wedlake Bell advises on all aspects of employment law related to Covid-19. If you are a business in the process of getting your workforce back to the office and you need advice on your return to work plan, please do not hesitate to contact us.