It is no longer a criminal offence for an employee to leave home in order to go to the office if their job can be done from home. However, the latest guidance states that office workers should continue to work from home if they can, until at least step four of the roadmap (pencilled in for 21 June 2021). This is unless home working is not appropriate because of mental or physical health difficulties, or a particularly challenging home working environment. This means that, in general, office workers should continue to work from home and it would be unlawful to discipline or dismiss an employee for continuing to work from home in accordance with the guidance.
However, it is advisable for employers to start thinking about the steps that they will take in relation to employees currently working from home once the Government guidance permits a return to the office. Many employees have been working from home continuously for more than a year. Some employers and employees will have had a positive experience of this and others will not. Other employers and employees (as numerous surveys suggest) will see the benefits of both ways of working and wish to have a more flexible approach to the location in which they carry out their work going forwards. Some employees may be feeling anxious about a return to the office, particularly if they have not left or rarely left their homes. Employers should take time to understand the concerns and wishes of their employees and put a plan into place at an early stage to reduce employee relations issues and to also take into consideration the following employment law implications:
- Changes to terms and conditions of employment – despite the requirement for employees to work from home during the pandemic, it is highly probable that the office remains their contractual place of work on a permanent basis. If an employer wishes to change the place of work of its employees such that they work from home, it will need to either obtain agreement from its employees or consult with employees in relation to this change to their terms and conditions of employment. If an employer is considering changing the terms and conditions of employment or 20 or more employees, the consultation will need to last for a minimum of 30 days (45 days for 100 or more employees), the employer will need to consult with elected representatives and an HR1 Form must be submitted to the Government.
- Flexible working requests – an employee with more than 26 weeks’ service is entitled to apply for an amendment to their hours and/or their place of work. If an employer requires all employees to return to the office once the Government guidance permits this, it is possible than an employer will receive many flexible working requests from employees who wish to work from home either wholly or in part. An employer is only able to refuse a request on certain grounds. As long as employees have been working from home successfully (and if they haven’t, this should have been raised with them previously), it could potentially be difficult for an employer to successfully show that it has sufficient reason to refuse the flexible working request.
- Equality Act 2010 – employers should consider whether requiring all employees to either come back to the office or work from home permanently could lead to potential discrimination claims. For example, a requirement to work from home on a permanent basis could be discriminatory on the grounds of sex given the childcare related concerns that could arise from this. If an employee is suffering from either a pre-existing or pandemic-related mental health condition which is causing them to feel anxious, will requiring them to suddenly return to the office be discriminatory on the grounds of a disability? If so, should an employer be considering making reasonable adjustments such as a phased return to the office (following discussion with the employee about any adjustments that may assist)?
Many of the employment law implications referred to above can be addressed and the risk either avoided or minimised if employers start to put plans into place now and also engage with employees to understand their concerns and wishes.
There are also health and safety considerations in relation to employees working from home and Covid-19 which need to be continuously reviewed by employers, the detail of which are outside the scope of this article.
For further advice in relation to the above, please contact Tom Evans at tom.evans@dtmlegal.com
