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Boris Still Awaits His Finest R (UK)

There are four main moving parts to bringing people back to work, only two of which were mentioned by the Prime Minister in his speech last night.

He made clear very properly the continued focus on health (particularly the R factor – the rate at which one person with the virus is likely to infect others) as the determinant of steps out of lockdown and that those steps would not be dictated by mere hope or (slightly less credibly) financial pressures. He could not say anything else. But before his words were even cold, commentators had seized on the tension between his suggestion that workers who cannot work from home (especially construction and manufacturing) should be “actively encouraged” to return to on the one hand, and his advice that they avoid public transport on the other. Walk or cycle if you can, he said brightly, surely aware that for the vast majority of commuters this suggestion is at best of academic interest and at worst, borderline insulting to their intelligence.

This was very clearly not the VE-Day/Liberation address which the press had teed us up for, but which was obviously never going come while the R value hovers just shy of 1.0, hundreds of people a day are lost to the virus and a cure remains so elusive. Earlier in the day, Communities Secretary Robert Jenrick had told the BBC that the shift of message in England from Stay at Home to Stay Alert still basically meant Stay at Home. Unless You Can’t Work From Home, obviously. This is therefore not in any sense the end of lock-down for businesses and their employees. ACAS guidance still encourages employers to allow to staff to work from home where they can. However, it has amended its guidance over the weekend to replace with the heading “Staying at Home” with “Working Safely” and to add a new section entitled “Planning to Return to the Workplace”, so the overall direction of travel is unmistakable. The new section stresses the importance of consultation with the unions and staff representatives and of taking into account (though without saying how) individuals’ anxieties and other personal circumstances in the return process.

The first of the missing moving parts was the Job Retention Scheme, currently due to expire at the end of June. We will need to know within the week whether it is being extended again if employers are not to restart collective redundancy consultation. If it is not, then the suggestion of “active encouragement” to return to work will potentially be bolstered by a starker alternative for many from 1st July – unpaid leave or redundancy.

But even if the employer has done all it can to allow for social distancing in the workplace and spent thousands on Dettol and PPE so that the risk there is minimised so far as possible, how can an employee be blamed from not turning up in circumstances where the Prime Minister himself has told him not to use public transport?

In addition, we learnt that it is at least another three weeks before any schools go back, and longer for some. Therefore even if it were possible in principle for the employee to travel in, he may not be able to leave the kids anyway. Boris’s advice for those who cannot work from home is all well and good for those without children or with non-working partners living within an easy hop of the work place, but a gathering storm of employer pressure and possible loss of income on the one side and children and public transport woes on the other may still await everyone else.

This takes us to the fourth moving part, possibly the question at the heart of the Prime Minister’s explanation – what degree of success or efficiency is required to allow an employee to say that he “can” work from home or an employer to say that he cannot. This goes beyond whether it is physically possible to do the work at home to some adequate degree on an emergency basis to whether it is possible to do it well enough to justify its continuation beyond the point where absolutely necessary. The experience of the last six or seven weeks will have moved the needle in relation to what employers and employees accept is practicable. However, in the end, competitive success could be said to require that businesses perform at 100% not 90%. If the employer believes that it is working from home that causes that 10% deficit, is that enough to warrant its requiring staff to return to workplace? Potentially not. Remember that the workplace itself may be significantly less efficient than it was once social distancing measures are adopted, so the comparison may not be as clear as might once have been the case. The underlying rules around the flexible working regime have not changed. The onus will remain on the employer to prove the non-feasibility of home working but now with the potent added “jury point” that the driver for it in these cases is not “mere” work-life balance or childcare but a serious and understandable fear of a potentially fatal infection.

© Copyright 2020 Squire Patton Boggs (US) LLPNational Law Review, Volume X, Number 132

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About this Author

David Whincup Employment Attorney Squire Patton Boggs Law Firm
Partner

Following ten years at a Magic Circle firm, David has been Head of our London Employment practice since 1994. His expertise gained from twenty-five years as a specialist Employment Law practitioner covers a wide variety of employment-related issues, including in particular individual and team recruitment issues, policy and contract drafting, disciplinary and grievance procedures, individual and collective redundancies, the defence of employee discrimination and dismissal claims and other litigation, whistleblowing, employee health, data protection and matters surrounding...

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