This week the Prime Minister, Boris Johnson announced the implementation of Plan B of its COVID-19 winter response due to rising numbers of COVID-19 cases and the Omicron variant.
In this article we look at what the guidance says, what your obligations are as an employer and the HR implications.
What is the announcement, who does it affect and when does it come into force?
The latest announcement marks a change for employers in England. Scotland, Wales and Northern Ireland have already advised people to work from home.
The advice to work from home applies in England from Monday 13th December 2021 and the advice from the Prime Minister is ‘Go to work if you must but work from home if you can’.
In Scotland- First Minister Nicola Sturgeon has stated that those who were working from home at the start of the pandemic should do so again.
In Wales employers are encouraged to allow people to work from home and employees should not be pressured to return (to their workplaces) and this has been the message consistently.
In Northern Ireland, a similar message, with the advice being to employers that they should allow and be supportive of home working to reduce transmissions.
‘Restrictions,’ ‘advice,’ ‘guidance,’ ‘being supportive,’ ‘encouraging’- what are our legal obligations and what is our legal risk (if any) should we decide not to reintroduce home working?
Its very difficult, especially when the message is rather vague, as the terminology implies that it is down to preference.
However, as an employer you have a duty of care to protect your workforce. You are not expected to eradicate the risk of your staff contracting COVID-19, as no-one can do that but rather than asking why you should follow government advice, the question you should be asking yourself is ‘why not?’
The truth is home working is inconvenient for many employers and managing people remotely is a hard managerial task. However, if you are weighing up whether to reintroduce home working, chances are you have done it previously. That means you can, so therefore you should. If you don’t, what is your risk?
Employees will likely raise your refusal to allow them to work from home as a dispute, or a formal grievance. Their argument will be hard for you to counter because you have allowed them to work from home before and you are going against government advice.
You need to bear in mind why home working is back, it is because COVID-19 rates are rising and we have a new variant. Therefore your employees could argue, very easily, that by refusing to reintroduce home working, you are placing them at increased risk of catching COVID-19.
Your employees could claim that you have failed in your Health and Safety obligations by having too many people at their work location.
There are risks of constructive dismissal claims, automatic unfair dismissals if an employee cites health and safety breaches and is subsequently dismissed. If an employee could easily work from home and has a medical condition which is defined as a disability under the Equality Act (or they live with or are in regular close contact with someone who has a disability), you are potentially facing costly claims under the Equality Act for disability discrimination.
Therefore, its better all round for employers to follow the guidance.
Can I insist some employees work from home and others must come to the workplace?
All staff who can work from home should. The minute you start deviating from this and treating people differently, you start creating more problems than you are aiming to resolve.
The million dollar question here is ‘why’? It is fine for some staff to work from home and others come into work if their job will not allow it. However, if you are going to insist your troublesome staff come into the workplace so you can keep an eye on them- this is not reasonable.
Can employees refuse to work from home?
The key thing here is communication, so you should meet with the employee and find out why they don’t want to work from home. In the same way that preference is not going to justify the employer keeping staff at the workplace, preference is not a justifiable reason for employees refusing to work from home either.
If they can work from home, they should. They should not be refusing, especially if they have worked from home previously.
Does this guidance only apply to those businesses and roles that were working from home earlier in the pandemic prior to the relaxing of restrictions?
This is certainly the message in Scotland, and it will be hard for employers to justify not allowing those to work from home who had done so previously.
However, businesses and roles change. So, it is possible that someone who worked from home previously may not be able to do so this time round. If in doubt seek our advice.
Can I just implement home working for those who are unvaccinated?
If you can implement working from home, the vaccination status of the employees is irrelevant because all staff should be working from home.
If you do this, you are more likely to have concerns raised from those who are vaccinated than those who aren’t and may in fact be opening yourself up to more problems and disputes.
TIPS for managing home working:
- Communication, Communication, Communication- make sure that staff know what is expected of them whilst working from home.
- Rules and procedures– redistribute the handbook or relevant policies reminding staff that whilst they may not be in the workplace, they are expected to behave and work as if they are.
- Contact– it is easy for staff working from home to fall off your radar. This is bad practice and is more likely to result in lower levels of productivity. Keep regular contact by telephone, video conferencing and meetings if safe to do so.