At the start of the pandemic, the Government told employers to encourage employees to "work from home if you can". That messaging was recently changed to one of getting "back to work", arguably primarily to support the local urban economy
Now, as the risk of Covid19 infection is increasing in various locations throughout the UK, the Government is once more advising people to “work from home if you can”.
The short-lived advice to return to office-based normality is no longer currently considered safe from a public health point of view. Offices and city centres will remain largely quiet as many employers and employees must now continue their remote working arrangements. So, does the traditional concept of office-based working being the norm fit with an employer’s duty of care towards its employees. Is a wholesale return to the traditional bricks and mortar workplace something that employers should be looking to achieve or even want?
Firstly, it is important to highlight that employers have a duty under health and safety law to ensure the health, safety and welfare at work of all of its employees, so far as is reasonably practicable. In order to comply with those obligations, employers will need to ensure that they carry out appropriate risk assessments relating specifically to the risk of Covid 19 infection, devise a safe system of work for employees and, importantly, ensure that this system is implemented. Employers may do this by introducing systems which comply with current Government guidance. However, following Government guidance does not automatically discharge these duties.
It is not enough just to say that “Government guidance is being followed” and this may be particularly relevant where a proposed return to office based working may not be possible where the workplace is at full capacity or where there is a local lockdown due to the increase in the “R” rate for infection transmission. An employer will always have to consider its legal health and safety obligations over the Government’s desire to encourage employees to get back to the office. Putting in place some form of testing regime for Covid 19 could be an example of a reasonable step to take for employers where there may be difficulty in accommodating enough space for employees to work in a socially distanced environment.
As for whether employers should be looking to facilitate a return to office based working for all employees before Covid19 is genuinely under control, if we have learnt anything from the circumstances arising from the pandemic, it’s that working from home has been demonstrated to actually increase productivity in some organisations. However, the long-term effects of remote working may have an impact on employees’ mental health and team morale when working in social isolation for an indefinite prolonged period. Where employees have the capability and technological equipment to enable them to work productively at home (which will not always be possible for many occupations), the answer to the question of home vs office working likely lies somewhere in between the two extremes, where a mixture of working from home and attending the workplace is encouraged and facilitated.
Adopting a creative and genuinely flexible approach to assessing the most productive (and safest) place to work may signal the endgame for the traditional belief that the office is the “best” place to work. The evidence does not automatically support that arguably outdated and old-fashioned view.
Efficient homeworking with some regular office contact could result in increased productivity and lead to the Utopian Dreamland of “Work Life Balance” becoming a reality for many more people. Factoring in the needs of modern family life in terms of flexible and remote working is vital to encourage positive outcomes for both organisations and human beings. Accessibility for clients and the provision of high quality services should always be a legitimate business priority, but does the client really care whether the person providing the service is doing so from an expensive chrome and glass tower in the city centre or from a tidy workstation in their spare bedroom? Encouraging a more flexible approach to working locations may not only be good for health and wellbeing it may also be very good for business.
At the time of going to print the Government has just issued the Health Protection (Coronavirus Restrictions) (Self Isolation) (England) Regulations 2020 which set out mandatory periods for selfisolation, and a duty to notify the Secretary of State of the names of people in the same household as anyone who has tested positive for Covid-19. Regulation 7 makes it an offence for an employer to knowingly permit a worker (including an agency worker) to attend any place other than where the individual is self-isolating. This includes individuals who are required to self-isolate because they live with someone who has tested positive. So, if an employer knows a worker has tested positive (or lives with someone who has tested positive), the employer is now responsible for stopping the worker from working (unless they can work from home). Any employer who fails to do so will face a fine, starting at £1,000.
There is also an obligation on the worker to tell their employer that they are self-isolating (reg 8). Any individual who breaches self-isolation will potentially commit a separate criminal offence (reg 11).
The requirement to work from home or stay at home if exposed to Covid 19 infection is becoming increasingly regulated to ensure that people comply not just from a personal health and safety perspective but also to protect the health and wellbeing of others from a public health perspective.
If you need any advice or assistance on facilitating employees' return to the workplace or any other employment law or HR advice, contact me at Paul.Johnstone@collingwoodlegal.com or on 0191 282 2870.
