While the roadmap out of lockdown remains changeable and none of us know what restrictions will be lifted on the 21st of June, as an employer it is important that you have a plan in place to manage the return to the office regardless of the date it actually happens.
HR Consultant Lucy Cotterell answers some key questions being asked about the return to work in her latest article.
Can an employer force its employees to return to the office?
Employers will need to act with caution and treat each employee on a case-by-case basis when determining if it is appropriate for employees to return to work. Although the contract of employment will almost certainly require the employee to work at the company’s offices, the impact of COVID-19 has undoubtedly changed how and where we work forever.
Employers should be very hesitant about forcing an employee to return to the office when they are working productively at home and there is no real and important need to be in the office.
If an employee is reluctant to return to the office and their role requires them to be office based, they should be consulted to understand their concerns and options explored to help them return willingly.
Ultimately, if all options are explored, it may be possible (in some circumstances) for employers to require an employee to return to the office, but this should be the last option.
Will employers need to update their employment documentation and/or policies?
The impact of working from home for many has been a better work life balance and increased productivity and so it is believed that when lockdown restrictions ease many employers will opt for a blended working regime, or hybrid working, allowing an average of 2-3 days working remotely.
Employers may consider updating its standard employment contracts to cover some of the more practical considerations for homeworking arrangements, such as the normal place of work, hours of work, expenses, confidentiality provisions, data protection and monitoring to ensure that homeworkers and office workers are treated the same.
However, employers should view contractual changes with caution as things continue to change and so regularly reviewing contracts at this time until we know the long-term effects of the pandemic on the workforce in recommended.
Employers should also ensure they continue to meet their health and safety obligations.
Can an unvaccinated employee be prevented from attending the company’s offices?
If restrictions lift on the 21 June there will still be a substantial percentage of the working population that will not have had the opportunity to be vaccinated and therefore such an approach would be inconsistent with a policy of encouraging people to return to the office.
In addition, preventing unvaccinated employees from returning to the workplace could increase the risk of discrimination claims based on disability, age, or religious and philosophical belief for employers.
Employers should take appropriate measures with regards to encouraging vaccinations, such as allowing paid leave to have the vaccine [and recovering from any side effects]. ACAS guidance advises that employers should support staff in getting the vaccine but cannot force them to be vaccinated. The Equality and Human Rights Commission has said that a policy of compulsory vaccines is unlikely to be lawful.
Can an employer discipline or dismiss an employee who refuses to be vaccinated?
Although ACAS guidance suggests that a refusal to be vaccinated could, in some situations, result in a disciplinary procedure, this would depend on whether vaccination was necessary for an employee to do their job – for example, a care home worker. It is unlikely to be relevant to office workers.
Can an employer enforce a COVID-19 testing regime?
Employers should consider encouraging employees to undertake home testing and to avoid attending the office if they test positive. However, requiring employees to produce evidence of negative test results has data protection implications and is unlikely to be justified. The emphasis should be on implementing social distancing and related measures of ensuring a COVID-secure workplace.
Can an employer request vaccination or testing information from its employees?
To keep people Covid safe in the workplace, many employers will be keen to record who has and has not received the vaccination as well as records of any Covid testing. From a GDPR perspective, this creates its own challenges as the fact that someone has or has not received a vaccine, or any test results will constitute “special category data” concerning health.
The Information Commissioner’s Office has said that employers should have a “clear and compelling” reason for processing vaccination status data and the same would apply to test data. In other words, why retain vaccine data if it is not essential to have had the vaccine to attend the office?
In circumstances where it might be justified, employers would also need to ensure that the data was held securely and not held for any longer than is reasonably necessary. Employee Privacy Policies would need to be reviewed and updated accordingly.
Will employers be able to remove Covid secure measures from 21 June 2021?
Currently, this seems unlikely. Although widespread vaccination and other measures of control may eventually reduce, given recent comments from the government, the Covid secure workplace is likely to remain in place for some time.
What does the future look like?
Given the constantly changing landscape, employers need to continue to remain flexible. Government guidelines and legal requirements will continue to change. As the danger caused by Covid hopefully continues to diminish, this will mean that the steps needed for a Covid secure workplace will also change, along with people’s fears.
A successful return to the office is likely to be gradual and at a slower rate for some individuals than others. There will be some employees very keen to return full time to the office, while others will want to gradually ease themselves back and some will prefer to stay working from home.
Policies need to be adaptable to change. We expect to see a hybrid working environment operating from 21 June 2021 but with the ratio of working from home to working in the office changing as, over time, confidence in being in the office grows. A return to the working patterns that existed pre-March 2020 is unlikely. Flexible working is here to stay.
If you have any concerns about managing the return to the office for your teams or wish to have us review your existing policies, then please contact Lucy Cotterell today firstname.lastname@example.org or call 01225 750 000.