A BBC report published last week suggested that office workers who still travel to work may be more at risk of catching coronavirus than many had previously thought.
Data from Public Health England showed that there were more than 500 outbreaks, or suspected outbreaks, in offices in the second half of 2020. This was more than in supermarkets, construction sites, warehouses, restaurants and cafes combined.
Those statistics may be startling for many office workers who have been happily travelling to work and will, of course, need to be taken into account by employers who are already required to carry out risk assessments and to assess whether home working is possible.
The current national lockdown restrictions mean that if it is reasonably possible for the employee to work from home they are legally required to do so.
The latest government guidance for England states that a person may only leave home for work if they “cannot reasonably work from home”. In Scotland the guidance states that “employers must support employees to work from home wherever possible and in turn employees must work at home when they are able to.”
Office workers would appear to be the most likely to fall within the category of worker who could reasonably work from home. After all, with the right IT equipment and software it is difficult to think of many tasks that could not be completed remotely.
Why are people in offices now?
Despite this guidance many employees still regularly attend offices.
The reasons for this vary but they will generally fall within one of two camps.
First where employers believe that the employee cannot reasonably complete their work out of the office. This may be due to the creative interaction that is sometimes necessary between employees or the type of equipment being used is only accessible centrally. It may also be due to better results being achieved from office based work for example in sales targets.
Second is where the employee wants to attend the office. This may be down to personal circumstances, like difficulties in relationships at home, maybe there is a lack of available room to work at home or possibly there is a temporary disruption to their workspace whilst home improvements are carried out.
In both scenarios the argument will be they are not reasonably able to work from home. The only difference is that if it is the employer requiring employees to attend the office there is a much bigger risk of this being challenged.
The police have powers to fine individuals who are breaching lockdown rules. The general rule is that everybody must stay at home unless they have a "reasonable excuse" to be outside.
However, going to work where you cannot reasonably carry out your work at home will be a ‘reasonable excuse’. If an employee is stopped and explains that they are travelling to work as they cannot do their job from home, it would appear unlikely that they will be fined unless the police have grounds to believe that they are lying.
The likelihood of the employer being fined is even more remote. Unless it is organising a staff party, the risk of a fine being imposed by the police seems small under the lockdown regulations.
Health and Safety duties
There is an obligation on employers to ensure the health and safety of employees at work.
They need to carry out a risk assessment and follow government guidance in relation to ensuring that the workplace is COVID safe. That guidance includes specific measures relating to those who work in or run offices, contact centres and similar indoor environments.
These requirements are enforced by the Health and Safety Executive (HSE) rather than the police. One report suggests that in just one week in January the HSE received 3,934 complaints relating to coronavirus and took enforcement action in 81 cases.
First stage of enforcement in most cases will be service of a notice. If there is further non-compliance, action may be taken which can include prosecution and a fine. There has so far been no reported cases of an employer prosecution during the pandemic.
Office workers who may now be fearful of attending work given the latest data may complain to their managers or possibly report the issue to the HSE. An employee who reports concerns relating to what they reasonably consider are breaches of the coronavirus restrictions or health and safety provisions will qualify for protection as being a ‘whistleblower’ whether or not there is any actual breach.
This will mean that they have protection from being subjected to any detriment or from being dismissed in relation to such disclosures regardless of their length of service.