The Prime Minister confirmed last week that the majority of the outstanding lockdown restrictions will be lifted on 19 July 2021. The UK Government is moving away from legal restrictions, and instead of expecting people to make their own “informed decisions.” This means that the current government guidance on working from home will no longer apply.
The future of working from home (“WFH”)
The guidance has been, for over a year, that an employee should work from home unless it is not possible to perform their role at home. This guidance will end; employers will be able to require a return to the office in two weeks. Employers should give consideration to this change though and consider the upheaval it may cause, and the difficulty employees may have in adjusting. Employers could consider a phased reopening to manage people’s anxieties about returning to work. Overall, it is important for employers to be completely transparent with their staff about what they should expect when they return. Employers should ensure management communicate with their teams and conduct meetings to ensure all concerns are addressed. What we have learnt in the past year is that no one way of working suits every person, therefore employers should consider having conversations with staff about how they work best and most productively whether, that’s in the office, at home or having some flexibility with both.
Employers should also expect to receive more flexible working requests than they may have historically; many employees may seek to maintain at least some of their working from home arrangements. If an employee has more than 26 weeks’ service, they are entitled to make a statutory request and it can only be refused for one of eight specified reasons.
- planned structural changes
- the burden of additional costs
- quality or standards will suffer
- they won’t be able to recruit additional staff
- performance will suffer
- they won’t be able to reorganise work among existing staff
- they will struggle to meet customer demand
- lack of work during the periods the employee proposes to work.
Previously, employers could rely on concerns surrounding costs, quality, or customer demand to refuse applications to work from home. But now, employers will struggle to refuse a flexible working request to work from home as they did before if they have successfully implemented working from home in the last twelve months and put that infrastructure in place. Employers won’t be able to argue that they will not be able to accommodate home working, presuming there was no impact on quality, performance etc as a result of the pandemic (or that any impact was overcome whilst the government work from home guidance was in place). Employers could be putting themselves at risk of claims if they refuse such requests without a justifiable reason and should ensure they objectively justify any refusal in writing. There is more on flexible working requests in our blog here or in our recent online Q&A session with Tom Stenner-Evans here.
When considering the return to work, there are still particular groups of whom employers should be particularly considerate at the moment:
- Those who are vulnerable but unable to be vaccinated; some people are making the decision to “re-shield”.
- Parents of clinically vulnerable children, who have not yet been offered a vaccination. Those parents may also be making the decision to temporarily “re-shield”
- Parents of children where they are still required to isolate in school bubbles. Whilst guidance on this will change soon, previous orders to isolate will likely remain enforceable. Some schools have now taken the decision to close until the end of the school year.
The End of Social Distancing and Masks?
Whether businesses and workplaces wish to continue such precautions as part of their procedures remains in their remit; they should bear in mind that they still have a duty of care to their employees to ensure everything is safe. There will be no legal requirements for face coverings, although they will be advised in some settings (hospitals, healthcare and crowded spaces), and employers may be able to reasonably request that their employees continue to wear masks unless they are exempt.
Any specific policies or procedures should be communicated to employees and employers should ensure there are no discriminatory aspects to those with a protected characteristic, like someone who is disabled and may not be able to wear a face covering.
The Future of Test and Trace
Testing and contact tracing (and self-isolation) will continue and will remain a legal requirement after 19 July.
This means employees will continue to be entitled to sick leave where they are ordered to self-isolate or where they contract Covid-19. There was a further announcement last week, and it was confirmed by the Health Secretary that, after 16 August, people who are “double vaccinated” and those who are under 18, will no longer be required to self-isolate for close-contact cases. For a positive test, regardless of vaccination or age, people are required to isolate.
The guidance for school bubbles and contact isolation (which has caused chaos for working parents) has also been changed; bubbles will end in school after 19 July, and children with close-contact cases will no longer be required to isolate after 16 August. Moreover, in respect of overseas travel, there will be no need for fully vaccinated people to self-isolate on return from “amber list” countries.
The Future of Vaccination
It was added that there would be no legal requirement for “Covid certificates” on the NHS App (which show either a recent negative test or vaccination status) to be required for access to any venue or event. Interestingly, though, the Prime Minister did mention that venues could consider those certificates if they wished. This is an interesting comment; it appears to leave Covid-status certificates and access in the hands of the venues themselves. Our blog on Covid-status certificates and the legal difficulties are here.
The reality is that some people will be excited and positive about these changes, whilst for others, it brings up feelings of anxiety or concern and may be unsettling. The important thing is to try and be a communicative and reasonable employer, considering how your employees feel but balancing that with your own business requirements to reopen and perhaps resume some form of “normality”.
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Please note this blog is for reference purposes only and is only accurate at the date it was published. It does not constitute legal advice and should not be relied upon as such. Specific legal advice about your specific circumstances should always be sought separately before taking or deciding not to take any action. Please contact us if you have any questions at firstname.lastname@example.org