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Back to the office? With this new beginning also comes a changing legal landscape in terms of employment law
As working from home guidance is relaxed many employers will be welcoming their workforce back to the office. However, what employers may not realise is that new legislation imposed during the pandemic has changed some of the rules around office-based working.
Now is the time for employers to plan for any issues which may arise, so that any potential legal risks associated with a return to the workplace after long periods of remote working or working from home can be identified and positively managed.
Latest Government Guidance
Employers are advised to talk to their workers to agree arrangements to return to the workplace, consulting with workers and trade unions where appropriate. Businesses should be responsive to workers’ needs and consult with them on any health and safety measures put in place to reduce the risk of infection, with extra consideration given to people at higher risk of severe illness from COVID-19, and to workers facing physical and mental health difficulties.
When considering workers’ return to the office employers should:
Hybrid Working
Many employers are now more conducive to contracted hybrid working arrangements, where employees will split their time in between the office and working at home or remotely. In these circumstances, to remain compliant with the law employers must consider the safety of their employees while working from home and employers may wish to consider implementing homeworking policies. Find out more about this here.
Refusing to Return to Work
What if an employee refuses to return to the workplace? An employee could still wish to carry on working from home for a number of reasons. For example, this could be because they still feel unsafe using public transport during their commute. And while employers have a statutory duty to provide a safe place to work, this obligation does not extend to an employee’s commute. However, employees do have a statutory protection from dismissal or being subjected to detriment if refusing to attend work if they have reasonable belief that they are in “serious or imminent danger . In such cases, staff would need to evidence reasonable belief of such danger, which may prove difficult if, as an employer, you have taken stringent measures to follow COVID-19 government guidance.
Long COVID
Long COVID symptoms could affect someone’s ability to work or cause them to take sickness absence. Employers should be aware that the effects of long COVID can come and go, with potentially intermittent time off work. The usual rules for sick pay will apply in these cases. Employers should offer support by agreeing when to make contact during any periods of absence, ensuring that individual’s workload is shared out appropriately and discussing ways to support them upon their return to work.
If an employer feels that an employee is taking too much time from work or is not able to do their job, they can arrange an occupational health assessment. Before any potential dismissal you should at first conduct a full and fair capability procedure, otherwise the employee could make a claim of unfair dismissal to an employment tribunal.
Testing and Vaccinations
On 31 January 2022 the government announced their plan to review the vaccination law for care home and health and social care staff in England. This change is subject to consultation and Parliamentary approval. The government’s current advice is that employers should not issue any new dismissal notices to staff because they are not fully vaccinated. As an employer, if you began a formal dismissal procedure on or after the 31 January 2022, you should discuss with the employee whether the procedure will continue or not. If the employee has a representative, they should be included in any discussions. As an employer it would be prudent to seek legal advice in this scenario.
Sick Pay and Self-Isolation
From Thursday 24 February, people in England who test positive for Covid-19 will no longer legally be required to self-isolate. Guidance will remain in place until April and anyone testing positive is advised to stay at home and avoid contact with others for five days. However, if an employee chooses not to do this, there is no legal penalty.
If someone at work suspects that they have COVID 19, the usual sickness absence process applies to staff who need to self-isolate and cannot work from home.
Holiday Issues
In 2020 the government introduced legislation allowing employees and workers to carry over up to 4 weeks’ statutory paid holiday into their next 2 holiday leave years. This law applies for any leave or holiday the employee could not take because of COVID-19. This rule also applies to those employees who were on furlough and were unable to use all their quota of annual leave.
Are you an employer who needs advice on any issues surrounding COVID-19 and employment law? Or are you an employee looking to clarify your position upon your return to the workplace?
We can assist with clear, targeted advice. Contact our Employment Law expert Clare Thomas on 01782 200500 to find out how we can help.
Please fill in the form below and we will call you to discuss your needs.
