As the country emerges from lockdown, what do employers need to know about the rules on working from home?

From  29 March 2021, there is no longer a legal requirement to work from home, though employers will need to carefully consider the situation before allowing staff to return to their usual workplace.  From 1 April 2021, the shielding programme was paused, meaning employers should prepare for clinically extremely vulnerable employees’ return to the workplace, if it is safe for them to do so. We consider below the nuances in the latest government guidance on working during the pandemic.

What does the lifting of the legal requirement to work from home mean?

Between 6 January and 29 March 2021, individuals were only permitted to attend work where it was “reasonably necessary…for the purposes of work”.  This has now changed, as the previous order to ‘stay at home’ unless you have a reasonable excuse has been lifted.

Although attending the workplace is no longer a breach of the law, government guidance states that individuals should continue to work from home “if you can”. The guidance highlights people who work in critical national infrastructure, essential public services and essential retail (such as supermarkets and pharmacies) as examples of people who should travel to their workplace if they cannot work from home.  However, it is clear that individuals do not need to be classed as a critical worker to go to work if they cannot work from home.  The guidance encourages employers to take every possible step to facilitate employees’ working from home, including providing suitable IT and equipment to enable remote working.

Unfortunately, the guidance does not clarify what is meant by “work from home if you can”.  Previous versions of government guidance have stated that everyone who can work “effectively” from home should do so, which some interpreted to mean that people could attend their workplace if, for example, they worked more efficiently there compared with at home, perhaps due to not having adequate facilities at home, or due to distractions.

Because the new guidance omits the word “effectively”, it seems to suggest that those who can work from home should do so, even if this is less efficient than working from the workplace. If that is the case , someone who came to work because, for them, it was more efficient, even when they were capable of working from home, might appear to be in breach of the guidance.

What should employers consider before allowing staff to return to the workplace?

Employers will need to be mindful of the health and safety and reputational risks of allowing employees to return to the workplace if this is done in breach of guidance.  For example, employers will still need to be sure that there is a rigorous health and safety assessment for Covid in their workplaces and that all reasonable mitigation efforts have been made to limit these risks for staff if they return to work.

Employers have a duty of care to staff and are required to provide a safe work environment. They should also consider any employees who indicate that working from home is having a detrimental impact on their mental health.  This may necessitate allowing an employee to work in the office, even where others are refused permission.  Employers will need to carefully consider each request to be physically present at work on a case by case basis and keep a record of the decision made and why.

Can staff be forced to return to the office?

As a general rule of thumb, employers need to think carefully before issuing any compulsory instructions to staff to return to the workplace.  This will be particularly so if employees are able to work from home.  Not only may forcing staff back to the workplace be a breach of government guidance, but it may undermine employee relations and  give rise to employment claims including whistleblowing and claims relating to health and safety..

Things to be mindful of when staff return to work

Whilst all staff can now lawfully attend the workplace, there are still strict restrictions on what employees can do when they get there.  For example, employees are prohibited from participating in a gathering of two or more people from different households, unless the gathering is “reasonably necessary for work purposes”.  Therefore, purely social gatherings of colleagues will be prohibited by law, including team lunches and after-work drinks.

Employers will also need to consider whether it is necessary for work purposes for employees to meet each other and/or with clients or other third parties in the course of their duties.  For example, it is not clear if employers would need to show that a particular meeting or event could not have taken place remotely, or whether the test is met simply by showing a sufficient business reason for a meeting.  It is important to note that breaching restrictions on gatherings is a criminal offence, and therefore employers may want to err on the side of caution and take a conservative approach when assessing whether a meeting or event is necessary for work purposes.

Clinically extremely vulnerable members of staff

Up until 1 April 2021 government guidance provided that if an individual has been identified as clinically extremely vulnerable, they were strongly advised to work from home because of the risk of exposure to the virus.  At this point, if a clinically extremely vulnerable person could not work from home, they were advised not to attend work and to speak to their employer about taking on an alternative role or change of working patterns on a temporary basis to enable them to work from home where possible. 

Due to shielding, if arrangements could not be made for the clinically extremely vulnerable to work from home, the employer may have been able to furlough the employee or the individual may be eligible for statutory sick pay (SSP) or employment support allowance (ESA) using their formal shielding letter as evidence to support their eligibility.

On 1 April 2021 the shielding programme was paused and therefore SSP and ESA stopped being available to the clinically extremely vulnerable because of shielding, only being available if the individual is not fit for work. 

Government guidance to those shielding is similar to the guidance for everyone else, in that they should continue to work from home where possible, but if they cannot work from home, they can (as opposed to should) now attend the workplace, with employers making every reasonable effort to enable clinically extremely vulnerable employees to work from home. 

If they have not already done so, employers should discuss as soon as possible their plans with clinically extremely vulnerable employees about their return to work.  If a vulnerable employee cannot work from home, they should only be permitted to return to the workplace where it is safe for them to do so.  For this to happen, employers will need to put extra measures in place to keep clinically extremely vulnerable employees safe at work, which may include offering them, on a temporary basis, a safer alternative role or adjusted working patterns.

Where it remains unsafe for a clinically extremely vulnerable employee to return to the workplace, despite extra measures put in place to protect them, it may be possible for the employer to furlough the individual under the Coronavirus Job Retention Scheme which has now been extended until 30 September 2021. However, employers need to be wary that putting staff on furlough may raise discrimination risks if the only reason they are placed on furlough is due to the risk to their health.