Back to the office - five considerations for employers

With the easing of pandemic restrictions this summer and the Government's strong emphasis on returning to some form of normality, employers have been grappling with a variety of difficult workplace issues. Here are five topical 'return to work' issues for employers, and some practical suggestions about how to navigate them.

1. Maintaining your COVID-secure workplace

   Employers have a general duty to take reasonable steps to protect their employees' health and safety. As a result of the pandemic, employers should be regularly reviewing and updating their health and safety risk assessments to take account of COVID-related issues.

   An employer should review its risk assessment to take account of the return in large numbers of staff to the office, as well as pandemic developments generally. If, for example, it turns out that certain areas in the workplace have a higher staff density than anticipated, an employer may need to consider introducing additional COVID-secure measures in that area. Similarly, at a time of material increase in the number of daily COVID cases generally, employers may wish to keep under review the robustness of their procedures requiring staff to stay away from the office should they exhibit symptoms. While certain people, such as those who are fully vaccinated, are exempt from the legal requirement to self-isolate if they’ve been in close contact with someone who has COVID, an employer who considers it appropriate from a health and safety perspective may decide to make it a workplace rule that such an employee should still self-isolate from the office.

2. Getting employees back to the workplace

   For employers who are still in the process of reopening their workplaces, it goes without saying that some employees will be keen to return while others will be reluctant. 

   Can employers compel employees to come back? Broadly, yes – in most cases requiring employees to return to the workplace is likely to be a reasonable management instruction. However, employers should recognise that employees may have legitimate concerns about returning to the workplace, particularly those who are vulnerable and have been shielding during the pandemic.   

   Start by consulting – speak to employees to understand and address their concerns, explain the health and safety measures that have been put in place in the workplace, and explain what will be expected of them. Provide as much flexibility as possible, at least in the early stages of the transition back to the workplace. "Soft" diplomacy may help too – incentivising attendance with things like free pizza or after work drinks has worked well in some businesses. Consider carefully before deciding to take disciplinary steps to deal with those who refuse to return.

3. Adjusting to hybrid working

   In a recent survey, 40% of employers said that more than 50% of their workforce will be continuing to work from home on a permanent or hybrid basis for the near to medium term. Whilst there are undoubted benefits to this, such as reduced overheads and environmental impact and increased positivity, remote / hybrid working comes with its own set of challenges. Effectively supervising employees, team building and monitoring employees' mental health and wellbeing can be more difficult where remote / hybrid working is the norm.

   Many employers are introducing formal hybrid working arrangements on a trial basis, so that they can see how it beds down and can flex arrangements accordingly. Employers might also consider updating their staff handbooks to include a hybrid working policy dealing with matters such as rules on attendance, use of equipment, breaks, and the ratio of home-to-office hours. Employers should also consider arranging in-office events (meetings, training etc.) so that there are times when the entire workforce is physically present (although be careful to vary the days that such events take place to avoid part-time workers always missing out).

   Employers should also examine their pay structures. For example, if "London weighting" has previously been applied, but employees are now working exclusively remotely outside London, a salary adjustment might be appropriate.

4. Dealing with unvaccinated employees

   Vaccination throws up a number of knotty issues. Employers may want a fully vaccinated workforce to reduce the risk of infection in the workplace (although current government guidance for maintaining a COVID-secure workplace doesn't include vaccination as a control measure). Some employees may be unwilling to work in close proximity to colleagues who have not been jabbed.  Other employees who have chosen not to receive the vaccine or who are unable to do so, may be highly sensitive to being singled out and subjected to special treatment.

   Employers who treat unvaccinated staff differently to vaccinated staff should tread carefully. If the different treatment is detrimental to the unvaccinated employee, and the reason the employee has not been vaccinated is related to a protected characteristic (for example disability or religion), the employer could be exposed to potential discrimination claims. If the differing treatment constitutes a breach of trust and confidence, employees may be able to claim constructive unfair dismissal.

   That being said, as an alternative to vaccination, employers may consider asking staff to carry out lateral flow tests on a regular basis before allowing them access to the workplace, or to otherwise provide proof of natural immunity using the NHS COVID pass. Provided the reasons for this are properly communicated to staff, we consider that this would help reduce the risk of claims.

5. Handling vaccination data

   Many employers have been asking employees to disclose their vaccination status. This raises significant data protection issues, as an individual's vaccination status is sensitive ('special category') personal data, and employers must ensure they are compliant with UK GDPR when asking for and using such information. As part of this, an employer should consider conducting a Data Protection Impact Assessment (DPIA) to confirm that it is appropriate for the employer to collect and use this data, and to ensure that appropriate data security and retention measures are taken. Such a DPIA can be informed by the employer's health and safety risk assessment. An employer will also need to ensure that its employee Privacy Notice properly takes into account the capture and use of this vaccination information.

   One way to avoid getting stuck in a data protection quagmire is to change the way checks are done so that the employer is not processing vaccination status data. For example, the ICO has confirmed in guidance that simply carrying out a visual check of employees' NHS COVID passes (and not storing the data) does not constitute data processing.

If you would like more information on return to work issues, please get in touch with your usual Mishcon de Reya contact or with a member of the Employment team.