At present it appears that there is only a trickle of workers now returning to their employer’s offices, such as reported in the banking sector. However, in light of the Government’s recent announcement that from 1 August employers will be given greater discretion to decide whether it is safe for employees to return to working in the office, we expect that the numbers are likely to swell over the coming months heading into September. Whilst out of necessity, many office based businesses may have managed to continue to operate remotely out of home offices, many employers are likely to identify concepts such as maintaining team morale, creativity, and keeping in place effective and efficient patterns of work, as being factors necessitating their employees’ eventual return to working from the employer’s office. Some employees may welcome a return to the office, as the novelty of working from home has begun to wear thin.

In this Insight we provide a summary of some key legal and managerial challenges that employers are likely to face when seeking to deal with the difficult transition of back to office based working, for employees who have spent the past three months during lockdown working from their home office.

Government guidance

The Government has provided both generic and sector specific guidance to assist employers in adapting their workplace to make it as safe as possible for employees returning to the workplace. The generic guidance which focuses on the five steps to working safely can be found here and a link to the guidance relating to returning to work in offices which was last updated on 17 July 2020 can be found here.

The  Guidance For Working in Offices currently states that: “people who can work from home should continue to do so. Employers should decide, in consultation with their workers, whether it is viable for them to continue working from home. Where it is decided that workers should come into their place of work then this will need to be reflected in the risk assessment and actions taken to manage the risks of transmission in line with this guidance.” The Prime Minister announced on 20 July that from 1 August this will change and that employers will be able to ask employees who have been working from home to return to their place of work, provided that steps have been taken to make the workplace COVID-19 secure and social distancing measures are in place. This change will allow employers to decide for themselves how staff can work safely.

It is important to keep in mind that the Guidance For Working in Offices expressly “does not supersede any legal obligations  relating to health and safety, employment or equalities.”  It does not replace an employer’s statutory and common law duty to ensure, so far as practicable, the health and safety of its employees by maintaining a safe place and system of work.

Employers have a continuing duty of care to ensure the health and safety of their employees, which in essence means that employers must not expose their employees to any unreasonable risk of injury to their physical and mental health. The Guidance For Working in Offices is clearly of importance in setting out what may be regarded to be reasonable practical steps that an employer can follow in seeking to open workplaces safely while minimising the risk of spreading COVID-19. Employers do need therefore to pay close attention to the measures it suggests, which if adopted, will mean that they will  in reality be far better placed to deal with legal challenges that may be raised in the future by an employee arising out of their proposed migration back to the office.

Ultimately, however, each business will need to translate the steps suggested in the Guidance For Working in Offices into “specific actions it needs to take, depending on the nature of their business, including the size and type of business, how it is organised, operated, managed and regulated”. Employers should refer to the relevant sector specific guidance as to what measures should be taken.

Minimising the risk of a stand-off

Once an employer has made a determination that it is no longer desirable or perhaps even  viable for its business to have employees continuing to work from home on a full time basis and has satisfied itself that is has or can take all necessary measures in the workplace to adequately manage the risks of COVID-19 (i.e. carrying out risk assessments, adopting a range of suggested measures and consulting with its staff) then it will be in a position to request some or all of its employees to return to the office.

Clearly this is a situation that potentially will leave an employer exposed to the risk of a range of claims being threatened or pursued by employees.

The manner in which an employer practically goes about migrating its staff back into the office will have a significant bearing upon the likelihood of friction and conflict emerging. It is important that an employer can articulate the business reasons why a return to the office is not just desirable, but also necessary. The more cogent its reasons, the greater the likelihood that employees will accept the employer’s decision, whilst the COVID-19 pandemic is still ongoing and the better placed an employer will be to deal with any employee challenges.

The more an employer can do to demonstrate compliance with Government guidance, the less likely it is that it will  face a health and safety challenge in the first place from employees opposed to returning to the workplace. Whilst the Government’s guidance on safe working does not change existing employment rights, it will certainly influence what is regarded as being reasonable in any given situation.

Seeking feedback from staff (perhaps in the form of an online questionnaire) to gauge their attitude and preparedness to return to the office, will be time well spent by an employer and it may well help in advance to identify problem areas in the workplace that are of concern to employees. An employer must consult employees in good time on matters relating to their health and safety at work and, in particular, with regard to a number of matters which include the introduction of any measure at the workplace which may substantially affect the health and safety of those employees. The Guidance For Working in Offices, in common with the other sector specific guidance, reiterates that employers have a duty to consult their employees on health and safety. It is suggested that employers can achieve this by listening and talking to them about their work and how risks from COVID-19 will be managed.

Clearly the more warning given that a return to the office is on the horizon the better. Adopting a flexible approach and seeking to migrate employees back on a phased basis is also something that an employer should be building into its plan of action.  Allowing employees taking public transport to avoid peak times and acknowledging that many employees will face significant delays in their travel to work given restrictions on the number of passengers who can use public transport will also be key.

On a practical level an employer should recognise that whilst the mindset and approach of its employees will vary greatly, many will be genuinely fearful of what lies ahead in returning to work and employers need to tread carefully and be vigilant regarding mental health issues.

Clinically vulnerable employees

Special consideration must also be given to clinically vulnerable employees. If an employee is clinically vulnerable (i.e. has an underlying health condition that puts them at greater risk if they contract COVID-19), lives with someone who is clinically  extremely vulnerable or is pregnant, it would be extremely risky and potentially unreasonable to compel that employee to return to the office, as COVID-19 poses a far greater threat to that employee. Such employees should be considered separately in any risk assessment and in practice are likely to be the last group of employees likely to return to the workplace. When they do return this group may need to be afforded the option of occupying the safest on site available roles.

Further it is relevant to note that an employee who is clinically extremely vulnerable (i.e. an individual who has been notified that as they have one (or more) of a number of identified specific medical conditions, they are at greatest risk of severe illness from COVID-19) also is very likely to qualify as being disabled under the Equality Act 2010, so an employer’s duties would extend to seeing what, if any, reasonable adjustments can be made in order to help that person return to work and/or help them manage work on their return.

Summary of health and safety employment protection

The individual rights to protection from detriment and dismissal are set out in sections 44/100 Employment Rights Act 1996.

In short all employees (regardless of the length of service) are protected from detriment and dismissal if they raise concerns, leave or refuse to return to a place of work, or take appropriate steps to protect themselves or other persons in circumstances of danger which the employee reasonably believed to be serious and imminent and which they could not reasonably have been expected to avert.

Points to note:

1. ‘Detriment’ – withholding pay in relation to employees who refuse to attend the workplace may potentially constitute a detriment and there are conflicting views as to whether this may be lawful;
2. ‘Other persons’ is not restricted to work colleagues but will extend to danger (i.e. of contracting the virus) that an employee believes working in the employer’s premises may pose to family members;
3. ‘Serious and imminent’ the Secretary of State made a “serious and imminent threat declaration” on 10 February 2020, formally declaring that coronavirus posed a serious and imminent threat to public health. It is clear that employees can potentially rely on COVID-19 as being a serious and imminent danger;
4. ‘Appropriate steps’ is judged by reference to all the circumstances, including – in particular – the employee’s knowledge and the facilities and advice available to him at the time;
5. ‘Whistleblowing protection’ under the ERA there is also separate provision for protection where a worker makes a disclosure tending to show, “that the health and safety of any individual has been, is being or is likely to be damaged”;
6. ‘Breach of trust and confidence’ – aside from the statutory provisions referred to above employers must also have regard to the contractual obligation not to engage in conduct “likely to destroy or seriously damage the relationship of confidence and trust between employer and employee”. Employees will also rely on this implied term in circumstances in which they are considering resigning (as a constructive dismissal) in response, for instance to the manner in which the return to the work place is being conducted by an employer.

Reasonable belief of serious and imminent danger

It appears inevitable that situations will arise in which, despite an employer’s best efforts to follow the Guidance For Working in Offices, an employee may assert that travelling to and/or attending at the employer’s workplace, is a circumstance of danger which the employee believes to be serious and imminent.

Weighing up the merits of the overall situation will be a fact-sensitive issue taking account of   what the employee (as opposed to the employer) genuinely believed to be the position and whether the danger was indeed imminent. In assessing the genuineness of the belief, it is possible that the manner in which an employee is conducting themselves during the easing of the lock down will be relevant. So if an employee has demonstrably not been practising, to a high degree, adhering to the social distance rules, then the genuineness of their belief may be open to challenge.

When considering the reasonableness of the employee’s belief, factors that will be relevant include, whether there may be a localised increase in the rate of infection, the extent to which the employee has both complied and been seen to comply with the Guidance For Working in Offices and the other generic guidance (such as the focus on the five steps to working safely), taken appropriate steps to minimise the risk of infection and the extent to which the work can be carried out from home versus the employer’s reasons for wishing it to be done from the office. Clearly employees who are clinically vulnerable  or extremely clinically vulnerable will have a far lower threshold to meet in demonstrating the reasonableness of their belief.

It should also be kept in mind that an employers’ duty at common law is to take reasonable steps to ensure the safety of their employees, not to protect them against all possible harm. In the current circumstances, it will be impossible to eradicate all risk and some employers may indeed struggle to adhere to every element of the guidelines. When applying the statutory test employers should bear in mind that  ‘potential danger’ is not the same thing as ‘imminent danger.’

Travelling to work on public transport

The distinction between potential and imminent danger is brought into sharp focus when it comes to an employee’s belief that travelling to work on public transport is unsafe. In London and other city centres, this is likely to be  the foundation of many employees’ objections or reluctance to returning to the office. Where an employer takes the trouble to spread out arrival and departure times for employees, it would be surprising if an employment tribunal were to find, for those who are not clinically vulnerable, that taking the Tube posed an ‘imminent danger.’ On 20 July the Government revoked its guidance that public transport should be avoided, although individuals are encouraged to still consider alternative methods of travel and walk, cycle or drive where possible.

Whilst many employers may delay requiring a return to office working until the autumn, it is reasonable to assume that public transport will only become more crowded as we pass through the summer months. So whilst it may not be popular amongst some employees, there may be force in the argument that there is no good reason for delaying implementing plans to request staff to begin returning to the office in the short term. The current guidance published on how to make journeys safely can be found here.

Taking disciplinary action against employees who refuse to return to the office

It is an implied term in every contract of employment that an employee will follow their employer’s lawful (authorised by the contract) and reasonable instructions. Whilst a refusal to return to the office could potentially be treated as being misconduct, it would be more prudent for an employer, if they were contemplating dismissing the employee as a result, to rely upon the more neutral catch all category of ‘Some Other Substantial Reason,’ as being the potentially fair reason for dismissal.

Aside from the potential reputational risk, ultimately any employer would need to tread very carefully before dismissing in such circumstances as, a tribunal will clearly need to assess whether the decision to dismiss was reasonable in all the circumstances. Clearly a tribunal will look at the full context of the issues surrounding the requirement being imposed that the employee in question returns to work. The same factors referred to above in relation to ‘Reasonable Belief of Serious and Imminent Danger’ will come into play when assessing the fairness of the dismissal.

In any dismissal situation an employee will seek to rely on the ss. 44/100 ERA protection against detriment and dismissal (referred to above) and may also assert that they are entitled to whistleblowing protection. Although a subtle distinction, an employer will need to demonstrate that its reasons for taking action, is not in response to the employee’s protected conduct in refusing to attend the workplace, but due to their unwillingness to return to work, notwithstanding that the employer has been able to create a safe working environment. An employer will need to avoid acting precipitously and try very hard to get an employee on side before threating to dismiss and will need to be able to demonstrate a  high level of compliance with the guidance.

Conclusion

An employer that has taken careful steps to consider health and safety, provides appropriate facilities and advice to its employees, has carried out some form of consultation with them, has provided fair warning of the migration back to work and introduced the change progressively over a reasonable period will be far better placed to manage this potentially challenging situation with a higher degree of confidence.

There is clearly no ‘one size fits all’  approach and we urge employers to seek specific legal advice relating to their business needs, work environment and workforce.