On 17 July 2020 the Prime Minister announced that the UK is moving into the next phase of its Covid-19 recovery. From 1 August the Government will be relaxing the guidance on working from home in England. The Government said it will give employers more discretion over whether to keep work from home arrangements. However, it is unclear how many employers will begin returning to the workplace.
This Insight will discuss what this new announcement means for employers and for employees, especially those who have concerns about returning to work.
What is the new approach to returning to work?
At the end of March 2020, the UK Government and the devolved administrations passed legislation to implement ‘lockdowns’. They all made it an offence for a person to leave their house to go to work if that work could be done from home.
In June, the UK Government removed this requirement for England, meaning anyone could legally go to work. However, the guidance still said that employees should work from home if possible. Workplaces that were re-opening had to follow Covid-secure guidance.
This new announcement is a further change in guidance. Each of the Covid-secure guides has been updated to say that working from home is simply “one way” to work safely. Employers can ask workers to return if they are complying with the guidance and believe it is safe.
Employers do not have to do this. There are a range of options, such as keeping home working arrangements or allowing employees to return voluntarily. They can also keep staff on furlough until 31 October 2020, although employers must start contributing to the cost from 1 August.
Scotland, Wales and Northern Ireland have also lifted the legal requirement to work from home. However, their guidance says that home working should remain the default for now.
Will more employers ask staff to return to the workplace?
It is unclear whether this change in guidance will lead to more employers asking staff to return to the workplace. Some major employers, like the Royal Bank of Scotland, have announced that they will continue home working arrangements until 2021. Law firm Lewis Silkin LLP suggest that a preferred option will likely be re-opening the office with voluntary attendance.
The Office of National Statistics’ Opinion and Lifestyle Survey showed that in the week 15-19 July, around 35% of the working population worked from home. This was down from 44% in the period 17-27 April. A survey by the Chartered Institute of Personnel and Development (CIPD) found that 44% of employers are taking steps to support more home working long term.
Whether a person can work from home also depends on the sort of work they do. A study by Adams-Prassl et al. in June 2020 showed that workers on lower incomes and workers without university degrees, as well as female workers, were less likely to be able to work from home.
Do employees have to return to work if asked?
It is an implied term in every employment contract that the employee will follow reasonable instructions. Refusing to do so can lead to disciplinary action and possibly even dismissal.
Under the Employment Rights Act 1996, employees are protected from detriment or dismissal if they refuse to go to work because they reasonably believe that there is a serious and imminent danger that they cannot avoid.
Employees can also take steps to protect others from such danger. This might include steps taken to protect vulnerable people in their household.
Whether an employee can rely on this protection will always depend on the facts. It may be difficult for an employee to show that they had a reasonable belief of serious and imminent danger if their employer is fully complying with the Covid-secure guidance.
Lewis Silkin LLP notes that the protection appears to be limited to dangers arising from the workplace. As such, it is uncertain whether an employee would be protected if they refused to go to work because of concerns about their commute.
What about vulnerable employees?
In England, current guidance says that people who are clinically extremely vulnerable should shield and not go to work. Those who are just clinically vulnerable, like pregnant women, can be asked to go to work. Employers should offer such vulnerable employees the safest possible roles.
From 1 August 2020 the guidance will be changed to say that those who were shielding can go to work, although they should work from home if possible. As they will no longer be shielding they may not be entitled to Statutory Sick Pay. They can be kept on furlough if they are eligible.
While employers will be able to ask vulnerable and extremely vulnerable people to return to work, they will need to be careful. A vulnerable person might have a reasonable belief that returning to work poses a serious and imminent danger. Blanket policies might discriminate on the basis of disability or pregnancy. Pregnant employees also have a right to be suspended on full pay if they cannot be offered work that is safe.
The Advisory, Conciliation and Arbitration Service (Acas) advises employers consult staff and listen to their concerns.
Health and safety of those working at home
Just because an employer decides to continue home working arrangements doesn’t mean they have no health and safety obligations towards their employees. Barristers from Cloisters chambers noted that employers will need to ensure that workers have the right equipment and look out for their mental health. The CIPD highlighted that lockdown saw an increase in fatigue, stress and musculoskeletal pain.
Employers must also be aware of how home working affects employees with different protected characteristics. For example, Adams-Prassl et al. found that women spent more time on childcare while working from home than men. A survey by the Fawcett Society found that a higher portion of BAME people were working extra hours while working from home compared to white people.
Employers must also make reasonable adjustments for disabled employees working from home.
Coronavirus: Returning to work, House of Commons Library.
About the authors: Daniel Ferguson specialises in employment and equality law and Brigid Francis-Devine specialises in economic policy and statistics at the House of Commons Library.