Legal

How to keep up with moving goalposts

18 Jun 2021 By Adam Lambert and Peter Summerfield

With the full lifting of lockdown delayed, Adam Lambert and Peter Summerfield provide tips for employers trying to plan a return to work in these ever-changing times

The prime minister announced on Monday (14 June) that stage four of the lockdown roadmap will be delayed for up to four weeks. It means that the final lifting of restrictions is now expected to go ahead on 19 July and reports indicate that Boris Johnson is “determined” for this to happen. 

It has been speculated that the work from home guidance may remain in place beyond stage four of the roadmap, but the government’s intention at present appears to be for all restrictions to fall away on the 19 July. Employers should also be aware that the government has stated it will be continually reviewing the position and could proceed to the final stage of the roadmap on 5 July 2021 if the data allows, but this appears a remote possibility.

This announcement comes at a time when employers, particularly those with an office-based workforce, have been considering the approach they will take in return to work policies. That will continue, but implementation will be pushed back by a period of up to four weeks. Employers, quite understandably, want to be ready for an influx of people coming back to the office and, more often than not, have been steering towards a policy that allows the workforce to continue working from home to some degree. 

Since the onset of the pandemic in the UK last March, one thing we have known for certain is unpredictability. It was only in September last year that the government launched a short-lived advertising campaign to encourage workers to return to their workplace – a campaign that was abandoned as a second wave grew in strength. 

Employers remain at the mercy of the pandemic but also the law and government guidelines. The 14 June announcement underlines that, and highlights the importance of employers ensuring they remain adaptable to change.

In addition, employers need to be respectful of public opinion and the mood of the labour market in general. No employer wants to be seen as the worst place to work, but also they don’t want to have an arrangement that on paper looks good, but means that service delivery will suffer. Employers will be to some degree dependent on the requirements of customers, clients and suppliers.  

Also, employment law has an ongoing theme of the importance of employers being reasonable. This applies to almost all types of claim that may arise in an employment tribunal. The idea of reasonableness is influenced by government guidelines but also public opinion; in this ever-changing environment what may be seen as unfair or unreasonable now may be fair and reasonable in six months’ time.      

Therefore, employers need to continue to act with caution and ensure flexibility when implementing policy changes in respect of the return to the workplace. There has to be an element of ‘wait and see’. The end result, once the pandemic ceases to be a major factor, should be a productive and adaptable working environment, but it will take time before employers will really know how it looks.    

Tips for employers

  • Don’t try to change contracts of employment yet. Keep the default place of work as the office. Any hybrid working policies should be non-contractual.

  • Retain the ability to require an office worker to come to the office at a particular time. However, this needs to be exercised carefully, bearing in mind business need, government guidelines as well as individual circumstances which could lead to discrimination issues.

  • Closely monitor the latest updates in respect of stage four of the lockdown roadmap, especially as the government has kept an option to proceed with it on 5 July, if the data allows; make it clear policies are open to review and change at any time.

  • Communicate and consult with the workforce to ascertain their objectives but also to give transparency on decisions.    

Adam Lambert is a partner and Peter Summerfield an associate at international law firm Bryan Cave Leighton Paisner

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