Legal

Return To Office Working Or Not?

Nick Hine and Ben Payne, 8 October 2021

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Employment law experts examine some of the challenges and questions for employees, their employers and other parties as more organisations wrestle with post-pandemic work arrangements.

Hopefully, as life returns to more normal times (or whatever passes for “normal" in these benighted times), companies, employees and, for that matter, self-employed people will have to confront how and whether to use offices again. It is not just a simple matter of what is most efficient or effective in melding a team together, mentoring younger staff, etc. There are employment law issues to consider. What happens to people who, for various reasons, don’t want to be vaccinated? What happens if people become ill? And then there is the old “work-life” balance question to consider. Wealth managers, for example, know that a more family-friendly work environment makes it easier for them to retain staff, for example after a spell of maternity/paternity leave. On the other hand, with certain occupations flexibility will always be more difficullt: as we know today, being a lorry driver isn’t like “working from home.” Farmers, industrial welders and plumbers are rarely mentioned in such conversations. (The pandemic really has opened up the divisions between those in “white collar” and “blue collar” occupations). 

To discuss the terrain are Nick Hine, employment partner, and Ben Payne, solicitor, at Constantine Law. (Constantine Law has spoken to this news organisation in recent months on this subject.) We hope readers find these insights useful. The usual editorial disclaimers apply to views of outside contributors. Join the debate! Email tom.burroughes@wealthbriefing.com and jackie.bennion@clearviewpublishing.com

One of the increasingly tricky situations for employers in financial services businesses to manage has been the return of staff to the office, following the mandatory home working that was introduced for many in March 2020 at the outset of the pandemic.

Employers now find themselves in a situation where some employees are often reluctant to return to the office full-time and some even part-time. This could be for a multitude of reasons, including a desire to work more flexibly, a preference for homeworking or due to health and safety concerns.

Below we consider the steps employers can take to ensure that staff return to the office. However, it should be noted that under the recently announced COVID Winter Plan, the government has indicated that it may require homeworking again should COVID cases continue to rise. Employers will therefore need to weigh up whether now is the time to require people to return, given the uncertainty over the coming months.

Step 1 – the contractual position
For the majority of employees who were office based before the pandemic, it is likely that their contract will confirm that they are to be based in the office. Therefore, in the majority of cases, it is likely to be a reasonable instruction to require the employee to return to the office, as long as the correct process is followed.

Step 2 – ensuring work compliance
However, employers will need to ensure that their offices are COVID secure before requesting people to return. Employers will therefore need to familiarise themselves with and keep on top of the latest government guidance. It will also be important to undertake a risk assessment and share this with staff to be clear on what steps have been taken.

Step 3 – giving reasonable notice
It is unlikely to be a reasonable instruction to return to the office if only short notice is given to return. Whilst there is not necessarily a minimum amount of notice which must be given, it would be reasonable to infer that the longer the period of notice, the more difficult it is to challenge. The exact amount of time will be for the employer to decide. It often happens that when an employer gives such notice, employees begin to raise objections/queries and/or want to only return part-time to the office. If that is the case, it is sensible for employers to advise employees that if they do not want to return to the office full time they should make a flexible working request in writing (step 4).  Employees may also raise issues of vulnerability either in respect of their own position or in respect of someone they live with. These issues need to be considered carefully to avoid claims.

Step 4 – how to respond to employees who do not want to return
Inevitably, employers will face a situation where employees indicate that they do not wish to return or only return on a part-time basis. The reasons for this are likely to vary, and employers will not be able to take a one-size-fits-all approach. Should an employee indicate that they do not want to return, the employer should encourage them to make a flexible working request. This request could be for permanent or temporary homeworking and could be for all or part of their working week.

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