28 August 2020

Whatever the ’new normal’ is, there are many employment law and Health & Safety issues to consider.

Finally, after months of lockdown, things are beginning to open up and employers are having to decide what is next for their workforce. The government’s position is that home and flexible working remain the “default” position for now, but hopefully that will change soon. 

Currently, staff may be working from home, or on furlough, and employers may be looking at a return to the workplace, or ongoing homeworking. Some employees will have got the taste for homeworking and may be reluctant, or concerned, to return to the office...

Do staff have a right to work from home?

Check your contract. It is unlikely that it gives employees the right to work from home. Certainly there is no freestanding legal right to do so.

Can staff ask to work from home?

They can ask informally, and there is a legal right to request flexible working, which could include homeworking. A formal request can be made by any eligible employee. Employers must deal with the request reasonably within 3 months, including any appeal process.

An employer can refuse the request, but there are only certain reasons that are valid: For example

• extra costs that will damage the business
• flexible working will affect quality and performance.

A flawed process or decision could lead to tribunal claims including constructive dismissal issues or discrimination issues if the request is due to childcare or disability issues.

What if homeworking is agreed?

Contractual changes may be needed and it is also important to have a homeworking policy dealing with the various issues which arise, including:

• Risk assessments of work stations and equipment
• Provision and ownership of equipment
• Will employer pay for phone, heating, lighting etc.?
• Any remote monitoring to ensure productivity
• Information security
• Will there be a review period? Who can terminate the arrangements?

What if homeworking is not possible?

For many employers, homeworking is simply not feasible and staff need to be at the place of work. Provided it is not contrary to government guidance, it is generally not unreasonable to expect employees to come to work, with the appropriate safety measures having been implemented.

Can employees who won’t return be sacked?

You may argue that your employee is refusing to comply with a reasonable instruction and that could be a disciplinary matter, but there is a need for caution in many scenarios including those below.

What if employees have childcare commitments?

This should become less of a problem as childcare facilities open up and schools return, but with the possibility of future local lockdowns, it may be that an employee cannot attend work as there is no childcare available or the school is closed. The UK government has said that it would expect employers to treat a lack of childcare as a good reason for not attending work. Assuming the issue is likely to be short term, there is little the employer can do. And if, due to the pandemic, there are no childcare options, it is likely to be unreasonable to take disciplinary action/dismiss the employee for failing to comply with an instruction which could not reasonably be complied with.

What if an employee is fearful of infection?

The virus is still being transmitted in the community, and there may be those who are genuinely fearful of returning to work, especially those with underlying health conditions. Can the employer argue that such an employee is ignoring a reasonable instruction? It will depend on all the facts – public health advice at that time, nature of the job, the particular vulnerability or disability of the employee, whether there is a known local outbreak. It will be vital for the employer to show that it has assessed the risks, taken all appropriate steps and communicated them. It may well be unfair to dismiss in such a case and may be discriminatory.

Note in particular that the law gives unfair dismissal protection (with no upper limit on compensation) to employees, of any length of service, who refuse to attend work due to a genuine and reasonable fear of serious and imminent danger to health. Whether a fear is reasonable will depend on all the circumstances.

Health & Safety

When all non-essential workplaces shut down abruptly at the start of lockdown, remote working became the default position often with very little planning or preparation. Despite the hasty retreat to kitchen tables and makeshift workstations, there has been no change to the duties of an employer under health and safety legislation. An employer’s overarching duties under the Health and Safety at Work etc Act 1974 remain – they must ensure, so far as is reasonably practicable, the health and safety of employees and those affected by their undertaking.

Planning for a Return to the Office

1. Risk assessment

For many businesses, the established approach to risk assessment based safe working practices went out the window along with any plans for summer holidays.

An employer must carry out an appropriate risk assessment for COVID-19, just like any other health and safety related hazards. If the company has 5 or more staff, this must be in writing. Control measures should be identified to address those risks and to form the foundation of a safe system of work. It is not obligatory to take every possible measure to eliminate the risk of the spread of Covid-19, only what is reasonably practicable.

Bearing in mind that the virus is known to be highly infectious and is transferred during contact between people, hard surfaces or in droplets in the air, employers must consider what adaptations may be required to premises and the behavior of staff to reduce the risk to its lowest level.

2. Devise, revise or update your policies and practices to include COVID-19 risks

Once the risks and control measures have been established, an employer must draft and/or revise existing policies and practices. Employers should consider whether updates to sickness, health and safety, accident reporting, fire evacuation and disciplinary policies are required. Protocols will also be required for visitors to ensure compliance with updated practices.

3. Communication is key

Consultation with employees who are working from home is essential to ensure an effective approach to assessing and addressing COVID-19 risks. Many employers have chosen to create and circulate a return to work questionnaire and many examples can be found online for reference.

New or updated policies must be communicated to staff via training which should be delivered prior to their return to the workplace. The message should be simple and clear to ensure understanding.

4. Review and monitor

The risk assessment and control measures in place should remain under review to take account of updated government guidance. Employers should also monitor the effectiveness of new policies and procedures so that they can be adapted as necessary. Feedback from the staff about what is working (or isn’t) could really help employers monitor compliance and the effectiveness of the rules in place.

Homeworking

Many employees will not have been set up to work from home pre-March 2020. Whilst it may not be an issue to work from a less than ideal workplace for a very short task, the risk of accident or injury increases the longer homeworking is required.

Again, communication is key to ensuring the home working environment is suitable and safe. You must take steps to obtain information about the home working environment and, where computer equipment or screens is being used, the correct use of that equipment should be considered. The HSE provide helpful guidance on Display Screen Equipment set up and a checklist for employers to review with staff.

What is the best advice for employers?

In short, explain to staff what steps you have taken to assess and reduce the health risks, deal with any concerns as they raise. Be very wary of the risks where employees suggest their health and safety is compromised. Take expert advice.

EMPLOYMENT

Douglas Strang, Senior Associate: E: dst@bto.co.uk T: 0141 225 5271

HEALTH & SAFETY

Lindsay MacNeil, Associate lmn@bto.co.uk T: 0141 225 4833

This update contains general information only and does not constitute legal or other professional advice.