Can Employees Continue to Work From Home After the Workplace Reopens?
From August 1, 2020, the U.K. government gave employers discretion on managing their workforce. How can employers make reasonable accommodations for employee concerns?
Since August 1, 2020, the U.K. government gave employers discretion in managing their workforce. For many businesses, this meant bringing staff back to the office. But many employees want to continue to work from home. So what are employees’ legal rights in the country? Can they continue to work from home if they prefer to do so? Georgia Roberts, solicitor, Clarkslegal LLP, answers these questions.
Place of Work
An employee’s place of work will be set out in their contract of employment. Unless they were home-based prior to the pandemic, it is likely that the workplace is listed as their normal place of work.
This means that employees are contractually obliged to attend the workplace. A refusal to do so will constitute a breach of contract which could warrant disciplinary action.
While it may not be beneficial from an employee relations perspective to initiate disciplinary proceedings against employees with genuine concerns for their health, if a workplace is “COVID secure” in line with government guidance, it will be difficult for an employee to refuse to return if the business output is suffering due to remote working.
Flexible Working
Employees that have worked for the company for 26 weeks or more have the right to make a flexible working request. Such a request could include changing their normal place of work from the office to home to suit their preference.
Employers can refuse a request for flexible working in certain circumstances, including where allowing the request will result in a cost to the business, or where the performance or the quality of work is negatively affected.
While some professions have seen little impact from home working, others have seen significant downturns in productivity and output.
As we are many months into the pandemic, the advantages and disadvantages of home working are now well understood by organizations. Where the disadvantages are more prevalent, it must be the case that employers can refuse requests to work from home where doing so is detrimental for the business.
Learn More: Remote Work Is the “New Normal” – Here’s How to Set Your Team Up for Success
Shielding
There are no additional requirements or duties on employers to protect employees that were shielding, but employers should be aware of employees who have conditions that meet the definition of a disability under the Equality Act 2010.
If an employee is disabled, there is a duty to make reasonable adjustments, if possible. A reasonable adjustment could be to allow an employee to continue to work from home. Despite this, the government has said that all staff can be brought back to a secure workplace, including those that were shielding.
Learn More: Remote Workforce: 4 Easy Ways To Create a Diversity and Inclusion (D&I) Communications Strategy
Employee Engagement
Many employees have genuine concerns about returning to work, especially with COVID-19 cases on the rise. Employers have a duty to ensure the health, safety, and welfare of employees at work, as far as reasonably practicable. Following government and Health and Safety Executive (HSE) guidance is likely to fulfill this duty, but it is impossible to mitigate all risks, just as it was in the pre-COVID world.
Employers should be transparent with employees, for example, by ensuring risk assessments are kept up to date and are available, inviting feedback, and listening to employee concerns. It is a stressful time in which organizations should be seeking to strengthen employee engagement, not weaken it.
Employee relations could be damaged where disciplinary action and dismissal are threatened against staff refusing to return. However, this may be necessary if remote working is having a significant detrimental impact on output.
Employee Concerns or Business Output?
A balance must be struck on how far a business needs to accommodate employee concerns, above its health and safety obligations, at the cost of business operations or output.
Our view is that with a COVID-secure workplace, the rest is down to employees themselves to ensure that risks are managed and mitigated. Employer obligations can only extend so far, and so this cannot include mitigating the risks of employees who are not following government guidance.
Employers cannot tell their staff how to behave outside of work, so trust must be exerted. However, employers should have a clear policy on self-isolation, including circumstances in where this is necessary and how much they will be paid, if at all, for doing so.
Which reasonable accommodations has your organization made for employees returning to work? Share your experience with us on LinkedIn, Twitter, or Facebook.
