Return to the office – some employment issues


25th October 2021

COVID-19 pandemic lockdowns have meant that many people have been working from home for much of the last 18 months or have been on furlough for long periods of time. Due to the easing of restrictions these employees are now returning to work, either to the workplace or working from home.

Some employees may have concerns returning to the workplace due to COVID-19 and about issues such as vaccinations or testing. Having open discussions with the employees directly may assist in alleviating those concerns. The best approach to concerned employees is being sympathetic to any concerns and trying and resolve them.

Complying with the current guidance applicable to the different parts of the UK can be a bit of a challenge but the key is ensuring that adequate safety measures are put in place and that risk assessments are regularly undertaken as this will increase the confidence of the employee in the employer’s ability to keep them safe. It is important to communicate these measures to the employees effectively and regularly, so they are fully aware of them and may be reassured by them.

Managing hybrid working – what are employers' responsibilities?

The coronavirus pandemic meant that many people started working from home for the first time with ‘make do’ arrangements put in place at short notice. The pandemic has now accelerated many employers’ longer term strategy to consider alternative ways of working.

Now that many staff are returning to offices on a flexible hybrid basis, employers have a responsibility to ensure that they are meeting their legal obligations including (amongst other things):

  • Updating contracts of employment to include the new hybrid working;
  • Ensuring that the procedure for dealing with requests for flexible working (where the employee wants to commence or continue homeworking) is being followed and that the employee satisfies the eligibility requirements;
  • Updating HR policies in relation to provision of equipment (including IT), payment of expenses, health and safety, data security, sickness, confidentiality and supervision;
  • Ensuring that working relationships are maintained and that there is frequent contact especially, for junior staff;
  • Ensuring that clear boundaries are set as to when homeworkers are expected to work (and when not), so that employees’ mental health and well-being are supported.

Covid vaccination status and mandatory vaccinations – advice to employers

A key question is whether employers can check their employees’ COVID-19 vaccination status. In principle the answer is a cautionary ‘yes’, but the employer must be clear on what they are trying to achieve and how receiving this information will help achieve this goal. In particular, employers will need to be open and transparent with their employees on why this information is required and what they are using it for.

A person’s COVID-19 vaccination status is ‘special category data’ for data protection purposes as it is their private health information. The employer’s use of this data must be fair, relevant and necessary for a specific purpose. The UK Information Commissioner’s Office has released guidance on whether employers need to collect this information and how to comply with data protection rules if they choose to collect it. Employers will need to decide on a case-by-case basis whether it is required, and consideration of the job circumstances and other factors will be necessary.

Employers must also give careful thought to the benefits and risks of requiring mandatory vaccinations or of requiring proof of vaccination, as they could face unfair dismissal claims from employees who are dismissed for not meeting a vaccination-related requirement. Employers must also be careful to avoid discrimination against those who have not been vaccinated, where (for example) those employees have a long-term health condition which means they cannot be vaccinated. In the UK, mandatory vaccinations are not required by law except for the care sector in England. In that sector, from 11 November 2021 it will be compulsory for all workers to be fully vaccinated in order to attend the premises of any residential care provider, unless there is a medical exemption preventing them from getting a vaccination. For all other employers the position is more complicated, as we have set out.

The ending of the furlough scheme – what options do employers have?

The furlough scheme ended on 30 September 2021 and, in principle, any employees who were still furloughed will have returned to work under their previous contractual arrangements. However, as at the end of July 2021, 1.6 million people were still furloughed. Although this was the lowest number since the start of the pandemic, realistically not all of those individuals will have had a job to return to at the end of the furlough scheme.

Employers must now consider their next steps, if they have not already done so. The employer’s current and future financial situation, the sector that they work in and anticipated future business opportunities will all be relevant to the decisions they make about what to do with their returning furloughed employees.

Some of the options open to employers include:

  • Bringing employees back on their pre-furlough terms and conditions;
  • Voluntary and/or compulsory redundancies;
  • Other alternatives to reduce payroll costs such as agreed reductions in hours;
  • Agreeing other changes to terms and conditions of employment.

It is essential to be open and transparent with employees as to why a particular course of action is being proposed, to consult appropriately about the proposals and to follow a fair procedure when implementing changes. Whilst employees may have concerns about any given proposal, they are more likely to accept it if they know the rationale behind it.

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