So the Prime Minister has announced that most restrictions in place due to the coronavirus pandemic will be lifted on19 July, despite acknowledging that the pandemic itself is far from over and that case numbers are expected to continue rising.
Details of exactly what the lifting of restrictions will mean (including new guidance) are to be announced on 12 July. However, what we do know is that the guidance that those who can work from home should do so will cease to apply, as will social distancing rules and the legal requirement to wear face coverings.
No doubt some employers will be relieved that they will finally have discretion to require their staff to return to the office, although it is not unfettered. Some of the US banks including JP Morgan and Goldman Sachs have already made clear they are impatient for this moment. Others, however, are advising caution. The CIPD issued a statement to the effect that “Freedom Day shouldn’t signal a mass return to workplaces” and that employers “should consider greater freedom and flexibility in how, when and where people work when Covid restrictions ease”. Frances O’Grady, the General Secretary of the Trades Union Congress, also cautioned employers against issuing blanket requests for staff to return to the office and encouraged them to consult their workers about continuing flexible working patterns and location.
Notwithstanding the changes in the Government’s stance, the legal position and rights of employees being required to return to the office (explained in our article in January), remain the same.
Potential key issues:
- Unfair dismissal: An employee who refuses to return to the office and is dismissed, or who resigns because they feel they have no other option following an instruction by their employer, may bring a claim for unfair dismissal (provided they have over two years’ continuous service for an ordinary unfair dismissal claim – two years’ service is not required if, for example, the dismissal is due to raising health and safety concerns). The key question will be whether the employer’s instruction is “lawful and reasonable” and this will depend on the facts.
- Health and safety and whistleblowing: Employers have a duty to take reasonable care of the health and safety of their employees. If an employee refuses to return to the office asserting a reasonable belief that the risk of infection is a “[circumstance] of danger” which is “serious and imminent”, or “that the health or safety of any individual has been, is being or is likely to be endangered” they may, depending on the circumstances, be protected from dismissal or being subjected to a detriment (such as a disciplinary sanction) as a result of doing so, regardless of their length of service. Damages are uncapped for such health and safety claims, as they are for whistleblowing claims.
- Flexible working requests: There is no legal right to have such requests granted, but the employer is required to consider them if the employee meets the qualifying criteria and may only reject them on certain specified grounds. The rights in relation to flexible working may also be extended in the future.
- Grievance: Employees who feel aggrieved at being forced to return to the office may raise their concerns via a formal grievance. Depending on the nature of their concerns, the grievance could constitute a “protected disclosure” entitling them to protection under whistleblowing legislation.
- Discrimination: Employers will need to be mindful of whether requiring all staff to return to the office full-time, or favouring those in the office when it comes to opportunities and progression, may leave employees with a certain “protected characteristic” (disability or sex, for example) at a disadvantage. In a recent highly publicised discrimination case, the Employment Appeal Tribunal determined that the Employment Tribunal should have taken judicial notice of the fact that women bear the greater burden of childcare responsibilities than men and that that can limit their ability to work certain hours (the “childcare disparity”). That principle could also apply to working in the office, which can cause difficulties for working mothers, and it remains to be seen whether it will be applied to workers in the City who have been performing their role equally well from home and wish to have a more flexible working arrangement post-lockdown.
Ending lockdown restrictions will no doubt be a relief to many, but it will also be an unnerving experience which employers will have to manage carefully. After over a year of working from home and other flexible working arrangements (which clearly did “work” since most City institutions are still alive and functioning), the cat is now well and truly out of the bag, and it is far too simplistic (and unrealistic) to expect that life in the City – and the daily commute into the Square Mile - will simply revert to the way it was before February 2020. It is clear that we are now entering a new normal which employers and employees will have to work together to define in the interests of all concerned.
Natasha Forman (Senior Associate) and Özlem Mehmet (Professional Support Lawyer) are members of the Employment Team at Kingsley Napley LLP
Photo by Kid Circus on Unsplash