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COVID-19: home working and new restrictions

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On 22 September 2020, the Government announced new workplace restrictions in response to increasing numbers of Coronavirus. 

One of the measures was to once again encourage ‘working from home’.

The Cabinet Office publication that announced the changes states that "office workers who can work effectively from home should do so over the winter."

Whereas "public sector employees working in essential services, including education settings" should attend work as necessary and "anyone else who cannot work from home should go to their place of work."

There is the qualification that in this regard "extra consideration should be given to those people at higher risk."

These changes were confirmed in the Government guidance "Coronavirus outbreak FAQs: what you can and can't do."

Is it mandatory for employees to stop attending the office?

As the return to work advice issued on 1 August 2020 no longer applies to offices, it has led to some uncertainty in relation to whether office employees can be asked or even allowed to attend work.

The new guidance does not prevent either.

It is not mandatory that the employer stop employees attending the office. In addition, it qualifies the guidance in respect to where the employee can work "effectively from home." 

That reference appears to allow for a large degree of subjective assessment.  

How will “effectively” be measured?

In some roles where an employee fails to meet specific targets, it may be relatively easy to show a good business reason as to why they are required to return to the office. 

Where an employee wishes to work from the office the test will be easier to meet as the individual’s representations that they cannot effectively do the work from home will be extremely difficult to dispute.

The more difficult cases will be where the employee says they can work effectively from home, but the employer disagrees. If there are no specific targets being missed what business reasons can the employer put forward to justify the requirement to attend the office?

One means of addressing the issue is to consider the factors relevant to a request for flexible working.

There are prescribed reasons why an employer may refuse a request to work from homemade under the statutory flexible working provisions. Those reasons include where there will be a negative effect on performance, the quality of work or the business’ ability to meet customer demand.

Whilst the change in Government guidance does not require that employers put in place home working, showing that one of these reasons apply might at least prepare the grounds for a response to any formal request for flexible working.

COVID secure workplaces for those attending

In every case where the employee is required to attend the office, it will be important to show that the workplace is COVID secure and that the Government guidance in respect of social distancing has been followed. 

In this respect, a risk assessment will have been carried out which should take into account the individual’s circumstances including as referred to in the latest guidance whether they are in a higher risk group.

Where possible those in the higher risk group should be allowed to work from home or extra measures taken to ensure their ability to retain social distancing.

In all cases, it would be better to reach an agreement with the employees regarding their attendance or non-attendance at work as otherwise grievances may result in disruption and lost management time.

Where employees have returned to the workplace and with that have had full pay reinstated, employers may need further express consent to enter into a new period of reduced pay whilst homeworking if that is the employer’s preference.

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