October 28, 2020

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The joy of six – but cold comfort for UK employers in latest pandemic measures

So what price now,  your long-planned initiative for returning your workforce to the office?  How much of your RTO plan is still standing among the smoking wreckage of the Government’s message only two months ago that employees should “start to go back to work now” if they can?  What does Michael Gove mean by the statement yesterday that “if you are in a Covid-secure workplace then you should be there if your job requires it”, but that otherwise you should work from home?  And with the Rule of Six still drying on the paper, is it true that you can now have 30 people at a funeral but only 15 at a wedding because you can only go to a person’s funeral once and there is less likely to be a disco?

Let us start with the basics.  The Government’s change of tack does not alter the law in any way.  Therefore:-

  • You can require someone to RTO if you can show a good business reason for doing so and you have taken all the physical precautions required to make your premises officially Covid-secure, i.e. to reduce the risk of infection there to its lowest reasonably practicable level.
  • If your employee has a reasonable belief (as distinct from a belief which is real and understandable, but not objectively reasonable) that the workplace is not Covid-secure and so poses a serious and imminent risk to his health, he will be entitled to stay at home, working there if he can but even if he cannot, still protected against retaliation (dismissal or suspension of salary) by the employer.
  • The best practical test of whether you have a good business reason to require a return to the office remains to assess the employee’s role against the 8 permissible reasons for saying no to a flexible working request, as set out in Section 80G Employment Rights Act.  If you can establish one or more of those reasons then you should legally be entitled to insist on a return to the workplace.

But in making that assessment, the context has suddenly changed.  The stakes are very much higher.  We have gone overnight from go back to work if you can, to go back to work if you have to, where the gap between can and have to is much bigger than it looks.  Almost everyone can go back to work, but the evidence of the last six months is that not many have to.  The difference that makes in practice is not in terms of legal exposure.  If you have made your work place Covid-secure and have a half-way decent business reason for requiring RTO, then you do not have any material risk on that front.  Instead the concern is emotional – by making your employee come back to the workplace, it will be said, you literally killed him, his parents or other family or friends.  Never mind that it may not be true, that proving it may be next to impossible or that the employee brought it on himself by floating your social-distancing guidelines.  It will always be that the company required an RTO in the face of Government guidance and as a result someone is dead.  That is a fantastically unattractive starting point for a brisk afternoon’s cross-examination in the High Court.

So while the Government’s reversal of its earlier advice does not change the law, it will place business leaders, line and HR managers under much greater pressure to deal with all aspects of WFH correctly.  That means being sure that you have a concrete and demonstrable reason for requiring the employee to attend the office.  It may or may not have been deliberate, but note that Gove referred to the job requiring physical attendance at the workplace, not to the employer’s doing so.  No more blanket dismissal of home working as damaging to collegiality (as I recall, a principal plank of the Government’s RTO campaign of really not very long ago), the preserve of the uncommitted or a poor precedent for others.  You will need hard facts based on hard evidence of hard experience, because without it, you are no longer sailing with the wind but directly into it.

Not only is that assessment being made under threat of the emotional cosh above, but it will also be tested hard by any Employment Tribunal considering a claim for breach of the flexible working rules.  In a perfect world, your corporate striving for the last few percent of efficiency through a fully-present workforce is one thing, but in such an imperfect world as we now have, ETs will inevitably expect employers to put up with more than they would have tolerated before.

This does not mean that the employer must lose all control of whether or on what terms its employees WFH.  Now that it seems here for the foreseeable, it is more than ever important for employers to ensure that WFH is on terms tolerable to them, not just where initial expediency and later inertia have left it washed up.  A decision or request to work from home is in effect a flexible working application.  Treating it as such gives you the opportunity to scrutinise each individual role, to consider what evidence you do and do not have of its feasibility done remotely, to introduce any new conditions you require to address that and to issue the appropriate contract variations to record those changes.

© Copyright 2020 Squire Patton Boggs (US) LLPNational Law Review, Volume X, Number 267
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About this Author

David Whincup Employment Attorney Squire Patton Boggs Law Firm
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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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