The Government’s announcement last month of its plan to ease lockdown, and the publication of the COVID-19 Response Spring 2021 (the “Roadmap”), has understandably been the subject of much debate amongst the press and the wider public. The Roadmap is based on four tests which, if satisfied, will lead to us taking four “steps” out of lockdown, each with provisional dates (see our earlier update here for more details). However, whilst business will welcome the timescales set out here (albeit provisional), many employers are left with a simple but vital question – when can employees return to the office?
The current legal position
From a legal perspective, the answer is not particularly straightforward. Legislation (which came into force in January 2021 and is still in force now) provides that no person can leave or be outside of their home without a “reasonable excuse”. A “reasonable excuse” includes where it is reasonably necessary for a person to leave or be outside of their home for the purposes of work (or to provide voluntary or charitable services), where it is not reasonably possible for them to work (or to provide those services) from home. Current Government guidance states that employers should, therefore “take every possible step to facilitate their employees working from home”. The police can take action against individuals if they leave home without a reasonable excuse (issuing fixed penalty notices starting at £200 for a first offence and increasing up to a maximum of £6,400).
The position under the Roadmap
Under step 1 of the Roadmap, from 29 March 2021, the Government will make certain limited changes to the lockdown rules, including the re-introduction of the rule of six for meetings outdoors. The Roadmap states that: “As a result of these changes, people will no longer be legally required to stay at home” and that “Guidance will set out that people should continue to work from home where they can”. This suggests that it will no longer be a legal requirement to work from home from that date since the legal obligation will have been replaced with government guidance.
From that point onwards, it could be argued that it is not unlawful for employees to return to office working. However, if an employer were to attempt to compel employees to return to the office in direct contravention of government guidance, those employees would have an obvious basis for refusing. If both employers and employees wanted to return to office working, this may be possible, subject to the workplace being COVID-secure.
However, if you and/or your employees are in the position of wanting to get back to office working as soon as possible, we would strongly recommend taking advice about your specific situation before reopening offices, whether on a compulsory or voluntary basis, at this stage of the Roadmap. If anything went wrong (e.g. a COVID-19 outbreak occurs and can be traced back to your office) you would want to have as strong a case prepared as possible to explain why you had chosen to act contrary to clear Government guidance.
Under step 2 of the Roadmap (which is no earlier than 12 April 2021), the Roadmap states that “people should continue to work from home where they can”, and by step 3 of the Roadmap (which is no earlier than 17 May 2021), “the Government will continue to advise the public to work from home where they can”. Whilst there appears to be a small change of language at that point, from the Government telling people that they “should work from home” to “advising” people to do that, it is difficult to see that this significantly changes the situation from where it was under step 1.
It is not until step 4 (which is no earlier than 21 June 2021) that we believe that the position is expected to change substantially. The Roadmap states that, prior to step 4, the working from home guidance will be reviewed as part of a complete review of social distancing measures and other long-term measures and as more is understood about the impact of vaccines on transmission and a greater proportion of the population has been vaccinated. We are told that the review “will … inform guidance on working from home – people should continue to work from home where they can until this review is complete”.
However, whilst 21 June 2021 may look like the earliest possible date for employees to return to the office, our view is that this may be further complicated by a number of factors:
1. The progress of the Roadmap is closely linked to the continued successful rollout of the vaccination programme, and even if this runs to schedule, it will be the third week of August before the whole adult population has received at least one jab and it has achieved full effectiveness, with the second dose running three months behind that;
2. Might different rules need to be in place for those employees who have not received the vaccine by that point (in particular younger employees who are ‘at the back of the queue’ and those who cannot, or have chosen not, to have the jab)?
3. There are complex employment law issues at play surrounding employers’ approaches to vaccines which may take some time to play out (see our earlier update on this topic);
4. The continued use of lateral flow tests to provide reassurance that your office is ‘COVID free’. Note that the current free testing regime will end on 30 June 2021, just around the time that, according to the Roadmap, many workplaces might be expecting to reopen;
5. The need to retain a COVID-secure office (i.e. hands, face, space). However, we anticipate that the details of what is required will change as more employees receive both vaccinations. We shall update you on the practicalities of achieving a COVID-secure office when further details are known.
If the return to office working remains linked to the vaccine rollout, we may not see a full-scale return to the office until September 2021 which, coincidentally, takes us to the date that the Government has announced for the closure of the Coronavirus Job Retention Scheme, which will now end on 30 September 2021.
Of course, before bringing your employees back to the office, whenever that may be, employers will need to give very careful consideration to their employment, health and safety and other legal obligations, as well as to relevant logistical and practical issues. You will want to plan ahead in relation to the following:
1. How will you handle lateral flow testing and your policy on COVID-19 vaccinations?
2. What COVID-secure measures will be needed by this point and how/when will you implement them?
3. What staff will you want/need to return to the office? Will staff want to return to the office? What will you do if they do not?
4. What amendments will be necessary to employment contracts?
5. What agile/flexible working/home working policies will you need to put in place and how will you manage these?
6. Will you need less office space than you did before and how will this be managed?
Our teams of Employment, Regulatory and Real Estate experts can assist you with any of the issues raised here. Please do get in touch.