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Volume XI, Number 212

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Future of the Workplace webinar 18 March – follow-up questions answered, Part 3 (UK)

Here are answers to two more of the questions which came up at our webinar last week, this time dealing with employee resistance to workplace Covid testing and the wisdom or otherwise of agreeing to post-lockdown WFH without formal changes to terms of employment.

  • If an employee refuses to be tested at work, how should we deal with this?  Should we refer to it in a Covid policy?

  • I presume that we can informally agree WFH without changing terms and conditions if we have no issues with people remote working?

5. If an employee refuses to be tested at work, how should we deal with this?  Should we refer to it in a Covid policy? 

As to dealing, I think that “unsympathetically” is probably the best starting point.  There are arguments which may justify resistance to being vaccinated in limited circumstances, mostly medical, but it is hard to see for the most part how those could translate to Covid testing, especially assuming that (i) the testing is administered by someone trained and (to cater for religious and other sensitivities) by someone of the same sex if required, and (ii) he is paid at least the NMW for the time it takes to do the test and get a result.

Requiring a regular test (the Department of Health suggests at least twice per week per employee) is clearly a reasonable management instruction.  It goes a long way to protect both staff and visitors, and it is not relevant that testing may not be 100% accurate or effective.  Your health and safety duties as employer are to reduce those risks to their lowest practicable level, not to eliminate them or nothing.  A request for the employee to take one of the government-issued tests is the equivalent of requiring him to use safety guards on machines which may otherwise fling out sparks or shrapnel of some sort and injure others.  No one would argue that that was not reasonable, even though the employee himself might be tempted take a more cavalier attitude on the grounds that the statistical risk is small and the procedure irksome.  Not only is your employee under an express or implied contractual duty to comply with your reasonable management requests, but he is also obliged under the Health and Safety at Work Act to obey instructions you issue in reasonable pursuit of compliance with your own health and safety duties.  Given that the tests are free and the official advice is very much in favour, it would seem unlikely that an employer could say that it has done all it could to reduce those risks unless it implements a fairly rigorous testing regime.

Therefore your reluctant employee should not be allowed into work (that would undermine the whole point) but should be sent home on pay briefly while he re-evaluates his career options.  If he is still resistant after your position has been made clear to him, then he should probably be dismissed. While employers deliberately getting up employees’ noses is not generally recommended, this is a very clear case of the interests of the majority (other employees, visitors, the public) legitimately overriding the personal preferences of the individual.

You can have a policy about this if you wish, though there is no legal need and it would obviously be short to the point of terse. Much better simply to state your position in the communications you are going to be having with staff over the next few months around the return to work, perhaps at the same time as you repeat that the vaccination programme does not allow you any scope at this stage to relax the physical precautions you have taken and expect them to take (screens, social distancing, etc.) to stop the spread of infection.

6. I presume that we can informally agree WFH without changing terms and conditions if we have no issues with people remote working? 

You can agree informally to extend WFH as a matter of law if you want, but I really wouldn’t.  That does not mean that you have to go through the full formal flexible working application process or to issue a whole new contract, but the fact remains that permanent WFH is a change in terms and conditions even if the employee has been remote working for the last year.  At present, his contract probably says that his normal place of work is the office.  That term has effectively been superseded by the temporary variation imposed by the pandemic, i.e. that for so long as he has to WFH (while government guidance is to do so), that is okay.  I do not see that emergency condition automatically lasting beyond the point where your employee can lawfully return to the office.  At that stage, his proper place of work becomes the office again and remaining away from it after that requires your consent.

Therefore you will need somewhere to recognise that change at least.  Section 1(4)(h) ERA 1996 requires the employer to state in writing the employee’s place of work or any “other places where he is required or permitted to work”, and section 4 requires any change to that to be communicated in writing within a month.

But the real issue with an informal acceptance of homeworking is that you don’t have any real control over what the employee will say that the agreement between you actually was, particularly around the edges.  Even if his duties are fundamentally the same, extended WFH generates administrative and management consequences for both you and your employee which it is far better to have nailed down at the outset.  The “outset” for these purposes is the point where you could have required the employee to return to the office (the end of WFH guidance from the government) but are willing not to do so.

For example, how often does the employee have to come in?  For what purposes?  On what sort of notice?  Who pays for his travelling? How do you get your kit back if he leaves?  Who pays if WFH impacts his home insurance or council tax?  How are you going to measure his input and output if you can’t actually see him at work?  What obligations does he have not to allow interference by family members with his work or IT equipment? Ae you going to revisit his duties to make it easier to accommodate WFH, and does that have any knock-on effects on pay or reporting lines?  These are just the little practical issues which employers tend to take as read or not think about at all, but the reality is that they do need to be expressly agreed — no term will be implied into an employment contract about such things merely because it would be sensible or you think it should be obvious.

There is no need for a whole new written contract, as I say, but you could do a great deal worse than a simple sign-and-return letter or email setting out a full list of the additional conditions or provisos on which you agreed to the WFH.  Have a hard think about this first, since if anything is missing that you later decide is important, you may not then have the ability to add it without being in breach of contract. We do not recommend allowing WFH arrangements to become contractual through a handshake or simple inertia.

© Copyright 2021 Squire Patton Boggs (US) LLPNational Law Review, Volume XI, Number 85
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About this Author

David Whincup Employment Attorney Squire Patton Boggs Law Firm
Partner

Following 10 years at a Magic Circle firm, David has been head of our London Labor & Employment Practice since 1994.

His expertise gained from over 30 years as a specialist employment law practitioner cover a wide variety of employment-related issues, including 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 confidentiality and...

+44 20 7655 1132
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