UK & Europe
On 22 September 2020, the UK government announced that in England, office workers, and others who can work effectively from home should continue to do so. This represents a significant change to the government’s previous guidance that from mid-August has encouraged people to return to the workplace.
This new guidance, which is likely to be in place over the entire winter period, will impact on employers differently, depending on which sector they operate in and the extent to which they have been able to make their workplaces "COVID-secure". For many employers, this will mean adapting their working arrangements again.
The government has updated their FAQ guidance: what you can and can’t do and its guidance Staying alert and safe. We set out below the key issues covered in the sections “Going to work” in the guidance and consider the implications for employers in England. This update does not cover with the position in Scotland, Wales and Northern Ireland where the guidance to work from home where possible has not changed
The guidance on “Going to work” now provides that “Office workers, and others who can work effectively from home should do so. Where an employer, in consultation with their employee, judges an employee can carry out their normal duties from home they should do so.” This contrasts with the guidance from 1 August which encouraged a return to the workplace. In that version of the guidance, working from home became an option, at the employer’s discretion, for people to work safely, rather than a suggestion that employees should work from home if they could.
The new guidance on “Going to work” further provides: “Public sector employees working in essential services, including education settings, should continue to go into work where necessary. Anyone else who cannot work from home should go to their place of work. The risk of transmission can be substantially reduced if COVID-19 Secure guidelines are followed closely. Extra consideration should be given to those people at higher risk.”
In sectors where homeworking is not possible, such as construction, hospitality and retail, as well as key public services, people should therefore continue to attend their workplace – provided it is "COVID-secure". The guidance on how to make your workplace safe and “COVID-secure”, was issued in May (see our client update new workplace guidance) and a number of updates have subsequently been made to it as the different types of workplaces have reopened. This was last updated on 18 September and has yet to be updated to reflect the most recent guidance regarding working from home.
It remains the case that anyone who is self-isolating should not come into the workplace. If they are able to work from home then they should do, but otherwise they may be entitled to Statutory Sick Pay or, a new Test and Trace self-isolation payment of £500.
This one off payment scheme will be operated by local authorities and is expected to be in place by 12 October. Guidance updated on 23 September, Stay at home: guidance for households with possible or confirmed coronavirus (COVID-19) infection provides that it will be available for people in England who start to self-isolate from 28 September who meet all the following criteria -
For more information see New package to support and enforce self-isolation available from gov.uk.
From 28 September employers will be under a legal obligation not to knowingly require or encourage someone who is required to self-isolate to come to work. Fines for breaching self-isolation rules will start at £1000 but could increase to £10,000 for the most egregious breaches, including for those preventing others from self-isolating.
These are people who have specific underlying health conditions that make them extremely vulnerable to severe illness if they contract COVID-19. Clinically extremely vulnerable people will have received a letter telling them they are in this group, or will have been told by their GP.
The guidance in relation to people who are clinically extremely vulnerable (who were previously advised to shield) has not changed since August 2020. They do not need to shield, unless they are in a local lockdown area, but special considerations still apply in relation to these employees. They can continue to go to work as long as the workplace is COVID-19 Secure but should carry on working from home wherever possible.
The guidance remains that if extremely clinically vulnerable individuals cannot work from home, they should be offered the option of the safest available on-site roles, enabling them to maintain social distancing guidelines (2m, or 1m with risk mitigation where 2m is not viable). It may be appropriate for clinically extremely vulnerable individuals to take up an alternative role or adjusted working patterns temporarily.
Alongside the guidance above in relation to clinically extremely vulnerable workers, the new general guidance on working from home in the guidance Staying alert and safe also applies to vulnerable workers, save that the guidance specifies that “extra consideration should be given to those people at higher risk”. Employers therefore need to take care of being too forceful about encouraging higher risk individuals into the workplace in this climate.
Which individuals are at higher risk? The Staying alert and safe guidance refers to clinically vulnerable people who are people who may be at increased risk from COVID-19, including those aged 70 or over and those with some underlying health conditions.
As well as those who are clinically vulnerable, the working safely guidance (COVID-secure guidelines) recommends that higher risk groups should be considered in an employer’s risk assessment, identifying those who:
Working from home is likely to be more viable for office based workers but is unlikely to apply to many workers in other sectors such as leisure, construction, retail and hospitality.
The emphasis on government guidance on working from home has changed; rather than the Government seeking to encourage people back to offices, they have stepped back to a position where working from home is recommended if work can be done "effectively", and where employers have the discretion to decide, in consultation with their employees, if that is the case.
However, we don't see this as going back to the position we had between May and early July where offices were effectively shut. To the contrary, it appears to us clear that offices can remain open, and that they can be used by anyone who "needs" to use them to carry out their role. Employers and their employees will want to think about this carefully, and what may amount to such a "need", in the context of carrying out work "effectively”.
There are likely to be clear and direct reasons why it is not viable for certain individuals or groups of workers to work from home. This could arise for reasons such as the duties of their role or their personal circumstances at home as a result of mental health issues; or the need for equipment that is in the office. If such reasons apply, the employer should ensure they are in a position to explain, and have documented, the reasons why that individual cannot work from home. But other reasons may also apply, based on the longer term nature of the issues we are now dealing with, as to why work cannot be done "effectively" at home, or why it is necessary for someone to be in the office (at least on a reduced basis).
Employers are more likely now to start considering (given we are looking at a situation whereby employees may be out of the office for around a year) as to the extent it is "necessary" or a requirement of "effective" working, for employees to attend the office for periods to allow for supervision or training, for example. Clearly this moves into greyer areas which would need to be considered very carefully – but impacts which could be accommodated and absorbed for 2 or 3 months, cannot necessarily be absorbed or accommodated for a year.
Of course, this also all needs to be considered against the background that employers should take care about being too forceful about encouraging people back to the office over the coming winter months. Employers should only require staff to attend the workplace if there is a safe place and system of work in place. This means that:-
Employers may face resistance from some employees who do not want to attend the workplace. Clearly if they are sick or need to self-isolate in accordance with government guidance they must not attend the workplace. There will be grey areas, however, particularly with vulnerable employees who are worried about attending the workplace, staff with child care issues and staff who disagree with their employer’s assessment of whether they can work effectively from home. Care should be taken when handling these employees to avoid the risk of claims including discrimination and health and safety claims. We have written more about these issues in our Clyde Guide to UK Employment Issues and returning to the "new normal".
What should employers do now?
The new guidance brings into focus the need to make proper provision for those working at home. This includes updating home working policies and ensuring that health and safety obligations are met, including carrying out health and safety risk assessments. This will also entail reviewing the equipment workers are using and taking steps to help with the mental health and wellbeing of staff. We have written more about mental health challenges in detail in our previous updates on home working and returning to work.