After rising COVID-19 cases and the emergence of the new Omicron variant, the government has implemented its Plan B strategy. As part of this strategy, from Monday 13 December, the government advised that employees in England should start working from home again, if they can. With the difficult winter months ahead, this creates somewhat of a predicament for employers given that many have spent months gearing up to transition their workforce back into the office on either a 3:2 flexi-agile basis or in some cases, on a full-time basis.

Whist the working-from-home guidance has not been mandated, it is government guidance and employers owe their employees a duty of care and have continuing obligations to protect their health and safety. Therefore, the onus is very much on employers to put in place steps and measures to ensure they comply with their obligations.

In this article, employment law partner Angharad Harris explains what the new guidance means for employers and the key considerations for employees working from home.

What does this mean for employers?

The starting point is for employers to revisit their COVID-19 risk assessments and ensure that any risks are reasonably mitigated against. If employees can work from home, they should, but for those who need to be in the office or workplace, this may include re-introducing a form of social distancing within the office, minimising visitors, mask wearing, increasing hand sanitisation stations, additional cleaning and/or improving ventilation.

Employers should think about putting in place an “outbreak” procedure that would inform managers of the steps to be taken in the case of notified cases occurring in the workplace. Employees should also be informed of the process to be followed if they display any COVID-19 symptoms. This would include being very clear with staff that they must not attend work if they are told to self-isolate.

Another precautionary step may be for employers to rethink whether their staff should be required to have regular lateral flows before attending the workplace and/or any steps that would support and encourage staff being vaccinated. However, both of these options need to be approached carefully given the employment law issues that need to addressed.

Can some employees continue to work from the office?

During previous lockdowns, it was a legal requirement for employees to work from home. However, after the recent announcement, the current guidance states that anyone who cannot work from home should continue to go to the workplace. Some employers are also giving employees the option of choosing whether to come in or not, mindful from the previous lockdown that for some employees working from home has been detrimental to their mental health and in other cases their home working environment has made working from home very challenging.

Whilst it is not now a legal offence to continue to work in the office, employers still have a duty of care towards their staff and they will need to decide whether they can continue to provide a safe working environment during this time in line with their underlying health and safety obligations.

If an employer insists on its employees working from the office at all times during the Omicron period of the pandemic, there are multiple issues that they need to be able to address depending upon the employee’s grounds for refusing and the actions that the employer has taken. All employees have a statutory right not to be subjected to any detriment or dismissed for refusing to come to work in circumstances where the employee has a reasonable belief that they and others are in “serious and imminent danger”.

If the employee refuses to come into work, then an employer will need to investigate their concerns with the potential for disciplinary action and the risk of constructive unfair dismissal claims. Therefore, any employer that insists on staff working from the office during this time needs to be in a position to justify such a requirement and have robust systems and controls in place to mitigate against the various legal claims that could arise as a result.

Communication with staff

During this turbulent time, employers need to maintain an open dialogue with staff so that concerns about working locations and health and safety risk can be raised and dealt with as flexibly as possible in all the circumstances. It is also going to be important for employers to clearly convey the plans and processes for working, whether that be at home or in the office. Managing expectations is also important, with many employers having worked hard to facilitate a safe return to the office. As such, employers might want to ensure that their messaging to staff remains that their expectation is that they will be resuming working from the office in the short term and that this will be determined in line with government guidance.

If you have any questions on the new government guidance or on your obligations as an employer during this time, please contact our employment law partner Angharad Harris.

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This article is for general information purposes only and does not constitute legal or professional advice. It should not be used as a substitute for legal advice relating to your particular circumstances. Please note that the law may have changed since the date of this article.