Director and partner at Crossland Employment Solicitors
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Accountants navigate wide-scale office return

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Barry Ross explores the employment law implications of a wide-scale return to the office, including current legal obligations.

31st Aug 2021
Director and partner at Crossland Employment Solicitors
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On 19 July 2021, the Government moved England into Step 4 of the “roadmap” and lifted the majority of the coronavirus restrictions. One change was the removal of guidance to work from home and now employers should look to ensure a “gradual return to the workplace”. 

While some accounting businesses will have had staff working from the office throughout the pandemic, many staff have still not returned to the office since March 2020. What in practice does the Government mean by “employers should look at a gradual return to the office”? The first step is to ensure that obligations to staff are met in the workplace and in particular under the Health & Safety at Work Act 1974.  

Accounting businesses need to undertake (or review existing) coronavirus risk assessments and put measures in place for the safety of their staff and clients. This will include things like PPE, hand cleansing facilities, providing adequate ventilation, and putting in place rules to turn away people with COVID-19 symptoms etc. 

The government has updated its workplace guidance as your starting reference point, but it is crucial to speak to staff about what they believe is important. This will allow them to be involved in the process, but also ensure that they are satisfied with the measures taken to allow them to return to work. 

Once this has been done, be sure to keep the safe systems of work under review and updated regularly as needed.

Employees seek unfair dismissal

Understandably, a number of employees will be reluctant to return to the office. An employee who believes that they are in “serious and imminent danger” could legitimately refuse to return to work. And if their employer dismisses them, they could seek to claim automatically unfair dismissal. 

A number of cases have already started to find their way to the employment tribunals. Currently, the pattern shown is that if employers have taken all reasonable precautions, engaged with staff and if the employee has not actively engaged with the process to try and find ways to manage concerns, then it is unlikely that their claims will be successful. 

It is important to remember that concerns about safety have to be realistic and unless there is a significant health reason or disability to consider, this may be difficult to justify taking into account how effective vaccines are, reducing the risk of serious illness and death by over 90%. 

Current self-isolation requirements 

 Accounting businesses should also be aware of the implications of the vaccine. This includes what it means for employees and what the requirements are in respect of self-isolation, particularly bearing in mind the severe impact of the “pingdemic” in a number of sectors. 

The rules around self-isolation changed on 16 August 2021 and any employees who are under 18 or have been double vaccinated (with the second dose being at least two weeks ago) will be advised to take a PCR test if they are contacted by Test and Trace, but they do not need to self-isolate unless they return a positive test. 

Given this, accounting businesses also need to know which employees have been vaccinated to ensure that they are complying with the law. There are significant fines and penalties for not doing so, and it is likely, therefore, to be reasonable to ask for this information. 

It is essential to remember that this information is sensitive personal data and must be processed in line with your obligations under the Data Protection Act and GDPR.

Can vaccinations be forced?

One question often asked is whether employers can insist on staff being vaccinated before returning to the office? This unfortunately will need to be dealt with on a case-by-case basis and treated carefully. 

Accounting businesses and their clients clearly don’t come into the same categories as care homes and hospitals, where the government is seeking to implement this as a law, so it is all about assessing the risks and looking at whether there are alternatives to requiring a vaccine that are suitable, such as lateral flow tests.

There will be a number of considerations on both sides, such as businesses seeking continuity of workforce and the fact that vaccines can reduce transmission by 50% and so help protect staff in the workplace. It should also be considered whether the implementation of such a policy could be discriminatory because of pregnancy, age, disability, or philosophical beliefs and whether that can be objectively justified. 

Our advice to accounting businesses, in the first instance, would be to try and educate staff and discuss the benefits of the vaccine for the business and all its employees.

Replies (2)

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By Moo
01st Sep 2021 11:02

I am surprised that this article does not mention that:
'All employees have the legal right to request flexible working - not just parents and carers.
This is known as ‘making a statutory application’.
Employees must have worked for the same employer for at least 26 weeks to be eligible. '
https://www.gov.uk/flexible-working
A webinar for ICAEW in June by a leading employment lawyer suggested that after a year of working remotely employers might find those requests difficult to refuse.

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By Hugo Fair
01st Sep 2021 11:23

Sorry, but this ducks the only three practical issues that confront most office-based employers:

1. Employer's right to know the vaccination status of each employee.
"accounting businesses need to know which employees have been vaccinated to ensure that they are complying with the law."
Leaving aside what data is required (which vaccine?, which batch?, dates?, need for booster? - all of which have impacted on international travellers for instance) ... which law requires this?

2. Protecting confidentiality of employee's status.
"It is essential to remember that this information is sensitive personal data and must be processed in line with your obligations under the Data Protection Act and GDPR."
But in reality it's not the storage & processing of the data that's the issue ... it's the fact that it's easy to work out (via behaviour of staff & attitude of managers) a person's overall vaccine status.

3. Employer insistence on vaccination for employees.
"One question often asked is whether employers can insist on staff being vaccinated before returning to the office? Our advice .. would be to try and educate staff and discuss the benefits of the vaccine for the business and all its employees."
Doh?!

If you want to know the degree of agitation and animosity (almost vitriol) engendered by these topics, you only have to look at several threads on here over the last 3 months or so - such as https://www.accountingweb.co.uk/any-answers/return-to-workplace-vax-and-... or https://www.accountingweb.co.uk/any-answers/discrimination-on-the-basis-...

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