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Back to the office: What’s next for employers?

Associate Solicitor, Charlotte McBride

COVID-19 has disrupted and transformed lives, but perhaps most notably the working patterns of UK workers. Before the pandemic, home working was slowly becoming more common, with more employers offering greater flexibility to their employees to choose where they worked from. However, COVID-19 has rapidly accelerated this transition to home working. In 2019 only 4.7% of workers worked from home. This increased tenfold, with the Office for National Statistics reporting in April 2020, 46.6% of workers worked from home, with 86% of them doing so as a result of the pandemic.

This taste of home working for some has allowed greater flexibility with work and personal commitments. For many, they want to see home working remain in some form or another and for others, they are desperate to return to the office. So, the question that is on many employers and employees’ minds is “what do we do next?”

When can employees go back to the office?

As it currently stands, the Government guidance for offices and contact centres in England is that workers are still required to work from home where they can up until Step 4 of the roadmap out of lockdown is actioned. Dependent on the infection rates, on the 21st June 2021, the Government will consider the current work from home guidance and begin to consider a transition of workers back to the office.

The current work from home instruction is just guidance, individuals who choose to go into the office even if they can work from home will no longer be breaching any legislation or risk criminal sanction. Workers who cannot work “effectively” from home or suffer specific difficulties with home working are also permitted to work in the office. This ‘flexibility’ does not permit an employer to encourage all employees to return to the office at the moment and an employer should not look to discipline or dismiss someone for continuing to work from home in line with the current guidance.

According to Government guidance, workers returning to the office will likely be the last restriction that is lifted and therefore working from home “where you can” continues to remain the norm.

What health & safety measures are important for employers to be aware of?

Employers have a statutory duty to ensure the health and safety of all workers, this includes ensuring the workplace is a COVID-secure environment. When more offices begin to re-open and a greater number of employees return, in line with lockdown or social distancing measures lifting, this duty will become even more prevalent to employers.

Employers need to conduct regular and thorough risk assessments to ensure they effectively manage the risk of COVID-19 in the workplace. This will include ensuring social distancing between workers, frequent cleaning of workspaces, greater ventilation and air conditioning, provision of any necessary PPE and communicating with workers to ensure the business operates safely. Employers should continue to monitor the available Government guidance that their measures remain current and relevant and some employers may also want to consider the availability of COVID-19 testing kits.

Is a flexible working policy the solution?

The question remains, how many people will actually want to return to the office? A BBC Worklife Future Forum research survey found that 72% of people want a hybrid remote-office model moving forward.

A flexible or ‘agile’ approach to working may be an option which many employers may seek to implement to allow for greater working flexibility of their employees post pandemic. Flexible working is any type of working arrangement that gives some degree of flexibility on how long, where and when an employee works. These policies can be tailored to each individual organisation to suit business needs.

A policy may include detail about how often an employee is permitted to work from home, how frequently they are required to attend the office and perhaps provisions regarding flexitime if appropriate for the business.

The implementation of a flexible working policy can be beneficial for the employer as it allows for the policy to be transparent, consistent for all employees and tailored to business needs. However, it can also create an administrative burden and legal obligations. When flexible working practices are agreed with employees and a permanent change is to be affected, employee’s contracts of employment will need to be varied. An employer cannot unilaterally alter an employee’s contract, mutual consent is usually required in order to effect the change, but the statistics suggest this should not pose a significant problem with many employees. Where an employer cannot obtain mutual consent or agreement, they could potentially seek to introduce the change via appropriate consultation.

Employers should also be aware that an employee with 26 weeks service has a statutory right to request flexible working. It may be that there is an increase in requests following the pandemic if an employer adopts a strict return to the office approach that does not sit well with employees seeking greater flexibility. Therefore, employers may wish to consider how their return to work plan will operate in light of the changes introduced by the pandemic and how this may influence their handling of employees’ statutory flexible working requests.

Comment

Working habits of employees have dramatically altered as a consequence of the pandemic. It will be interesting to see how employers will adapt to this more flexible way of working life.

Collingwood Legal is a specialised employment firm, with extensive expertise in dealing with issues in the workplace and helping employers draft policies suitable for both parties. Collingwood Legal can advise and assist employers on their health and safety obligations, alongside drafting flexible working policies and contracts for employees.

We also offer in-house training on general employment law issues, including dealing with employees, managing change and changing an employee’s contract terms. Please contact Sue.Graham@collingwoodlegal.com if you would like to find out more.

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