Post pandemic: a right to work from home?

It’s been confirmed that Government advice to work from home is to be removed but as employers open up offices in England again from 19 July 2021 there will inevitably be many who will be reluctant to revert back to the grind of a daily commute.

Faced with having to again attend the office at nine on Monday morning could cause anxiety and fear for some even though it may be welcomed by others. 

The question is whether an employee who has worked from home for over 15 months can now claim that they have a legal right to continue to work from home?

The simple answer is ‘No’. 

Despite headlines last month that suggested employees may be given the right to work from home forever, there is no current or even proposed legal right to work from home. The reports of ‘leaked’ documents disclosing this plan appear to refer to a proposed Government consultation to consider whether flexible working could become the default option putting the onus on the employer to show why it could not be put in place. This was a proposal originally set out in the Conservative Party’s 2019 election manifesto and subsequently included in the Employment Bill outlined in the Queen’s Speech that year. COVID put a hold on that progressing but even if passed it would certainly not give an absolute right for the employee to be able to insist that they should be allowed to work from home.

Discrimination claims

Whilst the statutory provisions that provide a right to request flexible work might not provide much threat of a claim in the Employment Tribunal the refusal of a request may lead to a claim of unlawful discrimination. 

There are a number of ways in which refusing an employee’s request for home working might be alleged to amount to discrimination. 

Only last month the Employment Appeal Tribunal* confirmed that there remained a childcare disparity between men and women that should be taken into account when assessing whether work arrangements indirectly discriminated against women on the grounds of sex.  

There is also the possibility that working from home could amount to a reasonable adjustment which would benefit a disabled employee. A requirement to attend the workplace might place those with physical or mental health issues at a disadvantage. This would be particularly relevant in the immediate aftermath of the relaxation of workplace restrictions as the number of infections appears to be still rising substantially which might place those with an underlying health condition at a greater risk despite having had the recommended double dose of vaccinations. 

Health & safety

The return to the office will need to be organised to take into account health and safety issues. Whilst restrictions are coming to an end on 19 July the pandemic is still with us.  There is special statutory protection for employees who object to attending the workplace if due to reasonably held belief that they would be in serious and imminent danger. 

It will be important that all the recommended steps are taken to ensure that the office is as safe as it can be in the circumstances. The guidance from the Health and Safety Executive will need to be followed.  Whilst mandatory social distancing rules will come to an end and there will be no legal requirement to wear a mask employers will still need to conduct risk assessments and follow sector specific guidance to mitigate the risk to their workforce, giving particular consideration to employees most at risk of serious illness from COVID-19. Increased ventilation of the workspace, frequent cleaning of common surfaces and providing more space between desks are examples of steps that most offices will be expected to take.