Legal

How firms can navigate the return to the workplace

8 Oct 2021 By Ian Tranter

Ian Tranter outlines what employers need to consider when making arrangements for staff going back to the office

The return to a more ‘normal’ way of working is heralded following the end of the government’s official work from home if you can guidance – but in the absence of a definitive policy, speculation and misinformation have caused issues for businesses.

In reality there is no right or wrong answer when it comes to deciding whether to allow people to continue working from home, introduce a hybrid model, or ask staff to return to the office full time. Whatever the set-up, the priority must be serving the needs of the business. 

For many firms, it may well mean all staff returning to the office and their pre-Covid working arrangements – some employees will embrace it, having missed the social aspect, while others will find the transition challenging.

Managing health concerns 

Vaccination is likely to remain a thorny subject – some people will feel vulnerable without a 100 per cent vaccination policy in their workplace, particularly the clinically vulnerable or those sharing their home with someone who is at risk. However, excluding a minority of roles that would warrant a requirement for employees to be fully vaccinated, such as some healthcare positions, businesses are not legally able to implement a ‘jabs for jobs’ policy. 

In cases where people cannot be vaccinated on medical grounds, or hold religious or philosophical beliefs that prevent vaccination, employers must avoid discriminatory practices. Where vaccination concerns play a role, businesses will need to continue to tread very carefully.

Many HR teams are working closely with staff to encourage people back into the workplace and provide support in managing any nervousness or worries, but there will inevitably be some who are unwilling to return. 

Ending temporary working from home arrangements  

Working on the assumption that an employment contract is in place, which should state the individual’s usual place of work, an employee is required to return to that workplace because the temporary working arrangement made necessary by the pandemic has now ended.

Those who have enjoyed working from home are entitled to request flexible working, but the needs of the business will dictate whether it is approved – it can be rejected on several statutory grounds, essentially business efficiency. For businesses with a large workforce, it may be problematic to allow all employees an infinite level of flexibility. 

Those refusing to return to their workplace could find themselves in breach of contract. Many of the concerns around the return to the workplace will be a matter of contract and determining rights and obligations for both employer and employee.

Altering terms of employment

During the pandemic, apparently thousands moved away from London and other busy cities to rural areas; some relocated to entirely different counties – those who are now required to return to their workplace must either resign themselves to a lengthy commute, find a new role or renegotiate their contract.

Despite recent media stories reporting big business seeking to cut salaries and introduce onerous terms for refuseniks, reducing pay may not be a priority for most – they may instead be focused on assessing productivity and deliverables, creating new initiatives and boosting human interaction. 

It’s important to note that any employment contract can only be readily revised with the consent of both employer and employee. I expect the renegotiation of terms will be the chosen course of action for a lot of people who have enjoyed working from home and have no desire to move back to London and resume their ‘old’ working patterns. 

But employers will also have to recognise that the landscape has fundamentally changed, and accommodating those seeking a hybrid working pattern is likely to prove increasingly important in recruitment and retention.

Loss of benefits and London weighting

Renegotiation may involve the loss of some previous benefits linked to their normal place of work. For example, where employees have opted to continue to work from home, employers would be entitled to consider removing associated benefits, for example London weighting (for those who have moved away) and loans and payments for season tickets for those no longer commuting. 

This will be an attractive development for some businesses – particularly those keen to reduce expensive office floor space – although others may have only limited flexibility.

Trialling new arrangements  

Despite open and transparent conversations, some employees will be concerned about the impact on productivity should staff be permitted to work from home. In these cases, a trial period is advisable, accompanied by KPIs. If expectations are met, the business will have the reassurance to move forward; if they aren’t, then the business cannot be accused of not trying to be flexible. 

The return of the workforce after such a long period of time will be challenging for businesses of any size, but open and clear communication, and the mutual recognition of commercial reality, will be the key to an effective transition period.

Ian Tranter is an employment partner at JMW Solicitors

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