Earlier this month, prime minister Boris Johnson announced that the government’s guidance stating that people should work from home if they can would change with effect from 1 August in England and that, from then onwards, it would be left to the “discretion of employers” to decide whether staff could safely return to the workplace.
The government guidance on working safely during coronavirus, covering various types of workplace, has now been updated to reflect this. Whereas previously the guidance simply stated that people who can work from home should do so and employers should decide, in consultation with their workers, whether it was ‘viable’ for them to continue working from home, it now provides: “In order to keep the virus under control, it is important that people work safely. Working from home remains one way to do this. However, the risk of transmission can be substantially reduced if Covid-19-secure guidelines are followed closely. Employers should consult with their employees to determine who, from the 1 August, can come into the workplace safely taking account of a person’s use of public transport, childcare responsibilities, protected characteristics and other individual circumstances.
“Extra consideration should be given to those people at higher risk. When it is decided that workers should come into their place of work then this will need to be reflected in the Covid-19 risk assessment and actions taken to manage the risks of transmission in line with this guidance. It is vital employers engage with workers to ensure they feel safe returning to work, and they should not force anyone into an unsafe workplace.”
This updated guidance does not change the underlying position on the potential legal liabilities for employers around returning to work, including travel to work. However, the drafting is confusing and unhelpful.
The new guidance appears to give employers the choice of having employees continue to work from home or return to the workplace. However, a return is stated to be conditional on “close” compliance with Covid-19-secure guidelines and employers “consulting with employees” – but not necessarily reaching agreement with them – about various matters, some of which relate to whether or not they consider their workplace to be safe (as employers “should not force anyone into an unsafe workplace”) and others that relate to their personal circumstances (use of public transport, childcare responsibilities, protected characteristics and “other individual circumstances”).
While it is clearly not the intention, this guidance is likely to make it more, rather than less, difficult for employers to get reluctant employees back into the office. This is because of the new emphasis placed on specific individual circumstances, including use of public transport – even though health and safety legislation does not generally require an employer to protect its employees’ safety during their travel to work. The new requirement to “ensure [workers] feel safe returning to work” also appears onerous, not least because whether someone feels safe is necessarily a subjective matter. The HSE’s guidance on working safely during the coronavirus outbreak also continues to provide that everyone who can work from home should do so.
In contrast to the position in England, guidance published by the Scottish government last week provides that organisations should make every reasonable effort to make working from home the default position and, where a worker can perform their work from home, they should continue to do so. The indications are that this will remain the position in Scotland across any sector where home working is a feasible option for both workers and businesses for the foreseeable future.
It remains vital that employers continue to engage with their workforces about their return to work plans. But for those businesses that had planned to take a bullish approach towards requiring staff to start returning to the office, the updated Westminster government guidance is not that helpful.
Melanie Lane and Catherine Taylor are employment partners at CMS