England is currently enduring a third national lockdown that has been in operation since 6 January 2021. On 27 January the Prime Minister announced that the current measures will remain in place at least until 8 March, after which date the “economic and social restrictions” may be eased. The Government’s plan for “taking the country out of lockdown” is currently due to be published in the week commencing 22 February 2021. The third lockdown has brought with it a new set of government Guidance and amended Regulations for employers to grapple with. In this alert, Partner Merrill April and Senior Associate Louise O’Connor look at how employers can interpret the current Covid restrictions to ensure that they meet their obligations in respect of the government regulations, as well as fulfilling their duty of care towards their employees.
For some employers, especially those with predominantly office-based operations. who closed their doors in response to the country’s first lockdown in March 2020, the new lockdown will have meant little change if they had been maintaining the working from home status quo over the course of 2020.
Difficulties, though, have arisen for employers who had been allowing or requiring some employees to attend the office on the basis that they could not “effectively” work from home in accordance with the previous Guidance. In conjunction with this, the government’s COVID-19 Winter Plan recognised that there may be “specific reasons why attendance in the workplace may be needed”, citing mental health issues or concerns as an example.
However, the latest government Guidance has changed the working from home messaging for the current lockdown: it is clear that individuals should not leave or be outside of their home except where necessary, such as to go to work but only “if you cannot reasonably do so from home”. Notably, the Guidance omits the word “effectively”.
The statutory position under the Regulations is that no person may leave or be outside of their home without a “reasonable excuse”. A “reasonable excuse” includes to attend work, where it is not “reasonably possible” for an employee to work from home. The Guidance corroborates this legal obligation, stating that individuals must not leave home without a reasonable excuse, with work classed as such an excuse only “where it is unreasonable for you to do your job from home”. Therefore, employees are at risk of breaching the Regulations by leaving their home to attend the workplace in circumstances where it is in fact reasonable for them to work from home.
Unhelpfully, neither the Guidance nor the Regulations expand on what is meant by “reasonably possible” and “unreasonable” in the context of performing a role from home. By excluding the word “effectively”, it could be construed that any element of a preference to work in the normal workplace (that might previously have been permitted) has now been eliminated.
As a hypothetical example, previously, a business that conducted daily meetings with their sales team, to go through sales figures from the previous day in order to determine appropriate working plans for the team for the rest of the week, might have been able to carry out such a meeting virtually via Microsoft Teams or Zoom. However, that business may have considered it to be more effective to have the meeting in person, for instance, to avoid internet connection hurdles and generate a better team spirit and healthy competition. Under the previous Guidance, such a hypothetical business may, therefore, have required attendance of those employees in the physical office, on the basis that part of their role could not effectively be performed from home.
The current position is much narrower because the Guidance only permits attendance at the workplace if it is not reasonably possible to perform the role from home. By restricting attendance in the physical workplace to circumstances where it is not reasonably possible to perform the role from home, the types of office-based work that require (even if it is not the preference) attendance at the workplace are starkly limited. Taking the hypothetical business example again, because it is reasonably possible for the meeting to take place virtually, albeit potentially less effectively, physical attendance should not be required in the office.
The Guidance encourages employers and employees to discuss their working arrangements, noting that employers should take “every step possible” to facilitate employees working from home, including providing suitable IT equipment and mental health support. Whilst the Guidance is not the law, prudent employers should, nonetheless, take it as the minimum that needs to be done in order to be compliant with the law. Employers must also be mindful not to overlook their legal obligation to consult with staff in good time on matters relating to health and safety at work.
Those employers with office-based operations who were not adopting a wholesale working from home approach before the third lockdown, in order to keep the business functioning as normally as possible, now face major disruption and must review those working arrangements. Employers should consider every role within the organisation and determine whether it is “unreasonable” for that person to work from home and whether there is anything that can possibly be done to enable each group of staff to work from home. It will help to consider the essential components of the usual, daily tasks performed by various roles and consider whether these can be performed virtually.
Understandably, a significant number of employers are growing impatient with the lockdown measures, but impatience should not cloud employer judgment, and this important role analysis exercise, and consultation with employees, should not be ignored or truncated. Nor should employers attempt to interpret the Guidance/Regulations in a way that manipulates what they are designed to achieve. Estate agents, for instance, are permitted under the Guidance to continue to operate during the lockdown, however, many roles within an estate agency will be entirely screen/desk-based roles that can reasonably be performed from home: no employer can circumvent the obligation to discuss working arrangements with staff and should take every possible step to facilitate home working arrangements where appropriate.
Employers should document this analysis and consultation exercise and explain to relevant staff the decision reached with justified reasons.
If employers do continue to require staff to attend the workplace, health and safety risk assessments should be reviewed and “COVID-secure” working practices must be implemented and genuinely enforced. It is not enough to put in place health and safety systems if employee behaviour is not monitored, and rapid and effective interventions made when non-compliance takes place. The importance of this is heightened given that data from a recent ONS survey has revealed that more people are travelling to work now than during the first wave of the pandemic, with 48% of UK workers travelling to work during the preceding seven days in the week ending 17 January 2021, in contrast with 35% in mid-May 2020. Also in the headlines, are reports of the DVLA encouraging staff with COVID symptoms to return to work and requesting staff to turn off the test-and-trace app to limit hits, and of a well-known luxury clothing retail company pressurising staff to attend the office and take unpaid leave if they feel uncomfortable doing so.
If employers fail to operate on a COVID-secure basis, or fail to follow the latest Guidance and Regulations on working practices during lockdown, there are potentially far-reaching and serious ramifications, such as costly and time-consuming legal action and reputational damage. Examples include (in very brief summary):
• Whistleblowing complaints which may be raised, requiring detailed investigation into alleged breach of employer health and safety legal duties if employees reasonably believe such wrongdoing is taking place
• Employees refusing to attend the workplace on the basis that they reasonably believe themselves to be in serious and imminent danger. In such circumstances, employees would be protected from suffering detriment, such as non-payment of salary or disciplinary action/dismissal.
• Employers being reported to the local authorities (who deal with offices, schools and other sectors) or the Health and Safety Executive (who deal with factories, building sites, hospitals and other types of premises) for alleged breach of health and safety regulations. The HSE is carrying out spot checks and inspections on all types of businesses in all areas and speaking directly to employees. They can issue enforcement notices, stop work being done and bring criminal prosecutions.
• Directors or Senior Managers facing prosecution if they have caused a business to breach safety legislation owing to their consent, connivance or neglect. Director duties may also have been breached, risking investors withdrawing support and major business disruption.
• A mass exodus of employees (including to competitors) once the present crisis abates, if employees believe their employer should have done more to support them during the pandemic, including by allowing them to work from home.
Employers are facing immense pressures whilst operating during the pandemic and the repeated plunging in and out of lockdown, with new sets of Guidance and Regulations each time, serves to heighten the challenges employers continue to face.
If you are currently assessing your working arrangements or facing challenges in light of the current national lockdown and would like to discuss what would be considered reasonable in the individual circumstances of your business, or any other questions arising from this alert, or for specific legal advice on particular circumstances, please contact our Partner Merrill April or Senior Associate Louise O’Connor, both of whom specialise in employment and partnership issues for multinational employers, senior executives, partnerships and partners.