Our MD has told me to start to plan to get everyone back in the office asap and no excuses. I passed this along the line to the management team and I have had nothing but negative feedback. Surely we can tell people when they have to get back to work?
We understand the sentiment, and we suspect that there will be many Senior Managers wanting to make a similar statement to their workforce – “We are back to business as usual, let’s get back to the workplace.”
But unless Senior Management considers this carefully, we think this could be a very dangerous proposal. There is nothing simple about a return to work under Covid-19. The lockdown might have been rapid, as there was no choice, but we have had plenty of time to reflect on and plan a return to work.
The Government guidance is extremely clear, work from home where possible. We suspect that employers trying to go against it may be tested in Tribunals over the coming months.
To ensure that public transport, the roads and social distancing is observed, the Government does not want people physically back within the workplace who do not need to be. Underlying every piece of Government guidance, including the Covid-19 Secure Guidelines issued in the middle of May, is this advice “Staff should work from home if at all possible. Consider who is needed to be on-site”.
So, your MD should have thought about it more before issuing such an insensitive instruction. There is no strong argument that people have to be in the office, no mention of a risk assessment for Covid-19, no mention of the vulnerable.
Before anyone returns to work, you need to look at the Government Guidelines and to carry out these 5 steps, which the Government published on 19 May:
1. Carry out a COVID-19 risk assessment
This should be in addition to your existing workplace risk assessment, specifically addressing the risk from Coronavirus, and it should be shared with the workforce.
2. Develop cleaning, handwashing and hygiene procedures
Increasing the frequency of washing hands, surfaces and the workplace, providing the tools to do so, and establishing the right routines.
3. Help people to work from home
You should take all reasonable steps to help people work from home by discussing and providing the access and equipment necessary. And then, making sure they are communicated with, and their physical and mental wellbeing is looked after.
4. Maintain 2m social distancing, where possible
Putting up signs, laying down markings, reorganising the workplace, having a one-way system where possible and finally, limiting visitor numbers.
5. Where people cannot be 2m apart, manage transmission risk
Do everything practical to manage the transmission risk by deciding whether some activities need to continue, keeping the time in contact as short as possible, using barriers and screens, and staggering arrival and departure times.
Organisations are also encouraged to reduce possible contacts by establishing fixed teams and partners.
In addition to these measures, where you employ people that have needed to shield, or whose health still makes them vulnerable, then it would be wise to consider an individual health risk assessment.
This should be undertaken with their full involvement and active participation, to avoid potential discrimination issues. The individual health risk assessment may need to identify extra control measures before they can return, or, a recognition that at present it is mutually agreed that their return to the workplace is temporarily deferred.
All risk assessments should be regularly monitored in line with Government health advice on the gradual easing of the lockdown requirement.
When you are inviting staff to return to the office, it would make sense to ask for volunteers first. Some people would welcome the break from home, others the extra income it would afford if they are currently only being paid 80%. And finally, it helps alleviate any concerns if people have come back willingly.
And a word of caution, if employees have concerns over the safety of the workplace, be very careful. Threatening people over health and safety is a potentially automatically unfair dismissal, regardless of length of service. Where a claim is successful, claims could be very substantial as they are unlimited.
On a practical level, working from home is generally possible and is often more productive and safer than travelling into work on public transport. At the moment, many people still have children at home that they must look after until the schools are ready to take them.
And consider this, the threat of Covid-19 is still very real and imminent. If you only have, at most, half of your staff in the office then if they develop symptoms, you will still have half of your workforce who can cover for them.
In the current climate, employers will be judged favourably by employees, customers, and other stakeholders if they safeguard the physical and mental health of their employees. In today’s connected world, employers who refuse to recognise this will be exposed and could suffer considerable reputational damage.
Employers have to recognise that the past 8 to 10 weeks may have permanently changed the workplace. More people are working successfully and productively from home.
We think there is a very real threat that Tribunals will not look at employers favourably, if they have not considered all avenues before demanding employees return to the workplace. Even Judges have begun working from home, getting to grips with the technology and realising it can be effective. Employers are not going to be able to pull the wool over the Tribunal’s eyes, and claim they are different, unless there are very real circumstances that dictate that they are.
The genie on homeworking is out of the bottle. It will be very difficult for the workforce to rapidly forget that they can successfully work from home. It will also now be difficult for Senior Management to revert back to the outdated concept that “unless I can physically see them at work, they are not productive.”
And while everybody today may be grateful for whatever job they can get, going forward, as the economy recovers, the model of work may well change.
Employees can demand that a request for flexible working should be heard properly by an employer. Homeworking has always been one of those flexible options, and it is likely to become the most popular.
The guidance provided in this article is just that – guidance. Before taking any action make sure that you know what you are doing, or call us for specific advice.