Work from home if you can

Work from home if you can

Key Contact: Claire Knowles

Author: Dan Evans

In response to the omicron variant of COVID-19, the government has issued new guidance to help stop the spread of COVID-19. The guidance states ‘you should go to work if you must but should work from home if you can’.

In Wales, the delegated government has always maintained guidance to work from home if you can, but there has recently been a gradual return of workers to the workplace, as cases of COVID-19 have flatlined across the UK.

When workers can come into the workplace

The recent announcement from government raises questions on if an employer can request workers come into the workplace who can technically work from home, and if an employer should still permit workers to come into the workplace who don’t want to work from home.

The new guidance from government has strengthened the resolve for a worker to demand they should work from home if they can. There have been statements from government which suggest that a worker should only come into work if it is strictly necessary. However, the new guidance is not saying a worker must work from home. This does provide employers with a certain degree of flexibility to decide, on a case by case basis, whether a worker can work from home or not. This leaves the door open for an employer to confirm that a worker needs to come into the workplace because (i) certain aspects of the role need to be done in person; or (ii) to access certain equipment that can’t be provided at home. It may also be appropriate to require a worker come in a certain number of days to perform certain tasks which can’t be performed at home and permit the worker to work from home on the remaining days.

There is also the potential for an employer to request a worker comes into the workplace if it has concerns for their well-being or for their ability to perform and be productive at home. This means that an employer does not legally have to force workers to work from home if they decide that they don’t want to work from home. However, if an employer attempts to demand workers come into the workplace due to concerns for their well-being or productivity at home, and the workers want to work from home, it exposes itself to damaging working relationships and receiving grievances from unhappy workers. To pre-empt this, an employer should be prepared to present its business reasons in a clear and precise manner, which should place the worker’s wellbeing at the core of its reasoning. Alternatively, an employer may want to consider a more prudent approach of having workers work from home for a short-term trial period. The employer should maintain both an open dialogue and continuing to actively monitor the situation during any short-term trial period. The recent guidance is only currently set to be a limited period over the course of the next month (although the time duration is subject to change), so this has the potential to tie in well with any proposed trial period.

An employer also needs to be mindful to take extra precautions when dealing with workers who are disabled in accordance with the Equality Act 2010. Any policy which requires workers to return to the workplace, or any unfavorable treatment or less favourable treatment in connection with a worker’s disability is likely to give rise to potential disability discrimination claims. An employer is also under a duty to make reasonable adjustments, which could potentially include additional adjustments to permit a worker to work from home if a disability means that they are clinically vulnerable. It is recommended that an employer refers a worker who presents health concerns to occupational health, to fully understand what measure should be taken to comply with its duty of care.

COVID-19 risk assessments

Now is also an ideal time to revisit your COVID-19 risk assessment. It is likely that certain health and safety guidelines may have relaxed over the past couple of months, so it is important that you consider both (i) whether the risk assessment is still adequately managing the risk that COVID-19 presents; and (ii) whether the risk assessment is still being properly implemented in practice. The government has updated its guidance on working safely during coronavirus which can be read here. It is highly recommended that you consider the guidance that is relevant to your industry to support you in updating your risk assessment (if it is appropriate to do so). It would also be prudent for an employer to send around a memo to all staff, reminding them of the health and safety precautions in place and of their role and responsibility to follow the guidance to keep themselves and others safe.

If a worker considers the workplace to be unsafe and not adequately adhering to government guidance, they can raise concerns with their local authority or the Health and Safety Executive (‘HSE’). The HSE have extensive powers to prosecute organisations and directors who fail to protect workers from harm and injury at work (which includes contracting COVID-19). The HSE also have powers to inspect premises and impose prohibition or improvement notices which requires an employer to stop immediate activity or take immediate action.

A worker could also potentially refuse to come into the workplace if it reasonably believes it to present a risk of serious or imminent danger. The risk of this is much higher if COVID-19 secure measures have not been implemented and/or the worker is clinically vulnerable. If a worker established there was a risk of serious or imminent danger by coming into the workplace or raised other related health and safety concerns, it would be protected from suffering any detriment (e.g. not being paid, disciplinary action etc.). In the case of employees, a dismissal would be automatically unfair if the primary reason for the dismissal was raising such health and safety concerns.

It is therefore essential that your COVID-19 risk assessment is reviewed and updated to avoid and mitigate the risk of any formal action or potential employment disputes.

Concluding comments

We highly recommend that an employer takes specialist advice before considering any requirements to continue to request workers come into work who can work from home, as there are many issues that need to be considered to give definitive advice on the correct course of action. If a trade union is recognized, it should also be consulted with, to aim to agree appropriate measures and to see if it can help in alleviating any of the workers’ concerns.

If you require any support or assistance in considering your strategy on responding to the recent guidance to work from home, or want support in preparing communications to the workforce, our employment team are happy to support you.

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