This week’s update looks at where we are now (for the moment anyway) in terms of working from home in light of the latest guidance, which has changed from “employees should start to go back to work if they can” to “if you are in a Covid-secure workplace then you should be there if your job requires it, but otherwise you should work from home.”
We have also taken a quick look at the rules around face coverings and the latest update in track and trace regulatory requirements in the workplace.
What does the latest guidance on working from home mean?
The starting point seems to be that the Government’s change of tack does not alter the law in any way. This means that as an employer, if you have a good business reason for doing so, you can require someone to return to the office provided that you have taken all the physical precautions required to make your premises officially Covid-secure. What this means in reality is that you have reduced the risk of infection there to its lowest reasonably practicable level.
However, if an employee has a reasonable belief that the workplace is not Covid-secure and therefore could be a serious and imminent risk to his health, they will be entitled to stay at home, working there if they can but even if they cannot, still be protected against retaliation (dismissal or suspension of salary) by the employer.
What does the phrase ‘reasonable belief’ mean? Well, this has to be a belief that is separate from a belief which is real and understandable, but not objectively reasonable.
In practice, the best place to assess what a good business reason would be, should start with assessing the employee’s role against the 8 permissible reasons for saying no to a flexible working request, as set out in Section 80G of the Employment Rights Act. It runs then that if an employer could establish one or more of those reasons then they should legally be entitled to insist on a return to the workplace.
But in making that assessment, the context has suddenly changed. The reversal of earlier advice does not change the law, but it has placed business leaders, line and HR managers under much greater pressure to deal with all aspects correctly. Employers should make sure that they have a concrete and demonstrable reason for requiring the employee to attend the office.
It feels like this may be the norm for a while and as such, it is important notwithstanding the above, for employers to ensure that working from home is on terms tolerable to them. Please remember that a decision or request to work from home is in effect a flexible working application. Employers should take the chance to then scrutinise each individual role, to consider what evidence they do and do not have of its feasibility done remotely, to introduce any new conditions required to address that and to consider and if agreed, issue the appropriate contract variations to record those changes.
What are the rules on face coverings?
The starting point is a reminder of what we mean when we talk about a ‘face covering’. In this context, this means anything that safely covers the nose and mouth, including reusable or single-use face masks, scarfs, bandanas, religious garments or hand-made cloth coverings.
The rules on face coverings encompass both legal requirements and government guidance. These have changed a number of times since the start of the COVID-19 pandemic and differ throughout the UK, but currently include the following:
- Face coverings are mandatory on public transport for travellers in England, Scotland, Wales and Northern Ireland.
- Face coverings are mandatory for visitors in England, Scotland and Northern Ireland (but not Wales) to shops, supermarkets and shopping centres.
- Face coverings are mandatory for the public in other indoor settings in England and Scotland, but do not have to be worn where it would be ‘impractical’ to do so (e.g. restaurants, pubs and gyms). In addition, the government’s general guidance says that face coverings should be worn in indoor places where people will come into contact with others they don’t normally meet and social distancing may be difficult. In Northern Ireland, the rule includes ‘any other indoor place where goods or services are available to buy or rent… for example, a bookmakers, a food takeaway business or a dry cleaner’, whereas in Wales face coverings are advised in situations where social distancing can’t be maintained.
- Face coverings are mandatory for passengers boarding aircraft in England, Scotland and Wales, whereas Northern Ireland recommends their use.
There is a non-exhaustive list of people who do not have to wear a face covering, including people who cannot put on, wear or remove a face covering because of a physical or mental illness or impairment or disability and children under 11 years old.
What about face coverings in the context of the workplace?
From a return to work viewpoint, the starting point is considering the multiplicity of health and safety issues to consider when establishing a safe return to work plan, including what (if any) Personal Protective Equipment (PPE) or face coverings should be given to employees.
Employers should also look to follow the parts of the government’s coronavirus workplace settings guidance that are relevant for their particular type(s) of workplace. This does not however require employers to rely on face coverings as a risk management strategy so, for example, encourage the precautionary use of PPE. They should though look to support employees in their wearing of face coverings (which are not PPE) if they choose to do so.
It is worth considering in addition under the general guidance, that face coverings should be worn in indoor places where social distancing may be difficult and where people will come into contact with people they do not normally meet.
If an employer identifies in its risk assessment that face masks (and/or other forms of PPE) are one of the necessary measures to protect employees and visitors, then, as part of its an obligation to provide a safe work environment for employees, and general legal duties of care towards anyone who may be accessing or using their place of business (e.g. visitors or customers), it will need to take steps to ensure that the masks and/or PPE are provided and that employees are using them appropriately.
Given the potential then for liability for the negligence of their employees, employers must monitor how their employees are behaving and intervene quickly if they are not acting appropriately. They may also wish to set up a process for employees to flag concerns that the health and safety measures are not being observed or are not working. In the event of any reported non-observance by employees, after investigation, employers may wish to consider taking disciplinary action.
The risk though with any blanket policy requiring employees to wear face coverings, is the risk of unlawfully discriminating against people who have legitimate reasons for not wearing them. Employers must also make reasonable adjustments for disabled workers, which might include allowing an employee with a valid reason to forego wearing a face covering. Thought needs to be given to how policies are applied in order to avoid discriminatory outcomes. It might be that the employer would then need to consider implementing additional measures as reasonable adjustments to accommodate any disadvantage suffered by an employee: for example, providing a separate working area or other suitable work which could be undertaken remotely.
What about face coverings for visitors or members of the public visiting the workplace?
The government’s guidance requires that premises where face coverings are required should ‘take reasonable steps to promote compliance with the law’. However, the responsibility for forcibly removing non-compliant visitors (who do not have a valid exemption) lies with the police or public transport officials. In a similar vein to the above, visitors and customers may also have legitimate reasons for not wearing a face covering (for example, on account of their age, health or disability). While an exemption card, badge or home-made sign is helpful, this is not necessary in law and the government guidance states that people should not be routinely asked to provide written evidence of this. The consideration for employers should look at what ways there might be to provide employees with additional protection in this situation, and whether and how they might seek to enforce compliance by customers and customers as part of their duty to protect their staff.
Given the sensitive nature of the issue, if an employer asks their staff to enforce the wearing of face coverings by visitors and customers, any failure to deal with abuse of employees may be a breach of the implied term of mutual trust and confidence, which could lead to constructive dismissal claims, or a breach of the employer’s duty of care to protect employees’ health and safety. Employers will need to take steps to protect their employees from any resulting abuse, which could include posters warning customers that any harassment or violence towards staff will not be tolerated, discussing with exempt employees whether they would prefer to wear an exemption badge and training around avoiding putting themselves in personal danger etc.
What about the latest on track and trace regulations in the workplace?.
New regulations have been published to help track and trace people who are, or come into contact with someone who has been, diagnosed with Covid-19. From 18 September, businesses must collect contact details from anyone who enters their premises and deny entry to anyone who refuses to supply those details. From 24 September, businesses must also display a QR code at their premises for people entering to scan.
Conclusion
As Government guidance has changed, it feels like the stakes are that much higher. We have gone from go back to work if you can, to go back to work if you have to, the gap between ‘can’ and ‘have to’ is much bigger than it looks.
The situation is that almost while everyone can go back to work, the evidence of the last six months seems to say that is that not many have to. The difference that makes in practice is not in terms of legal exposure (if you have made your workplace Covid-secure and have a half-way decent business reason for requiring a return) but is emotional and it is this context that needs careful consideration. In a perfect world, working effectively and efficiently through a fully-present workforce may be the goal, but in such an imperfect world as we now have, employers may have to put up with more than they would have tolerated before.
We have a HR and employment specialist Lucy Churchill, who can assist with any queries on the above on either 01603 677077 or lucy.churchill@spiresolicitors.co.uk.
Please drop us an e mail or call if you need any further details and stay safe and well.
Roger
