Can employees be forced to work from the office?
Employers are putting staff under pressure to return to the office despite restrictions and an official roadmap. Barry Ross answers legal issues raised by this question.
The Government has now announced its roadmap to reopen the UK. While this varies according to sectors and industries as a whole, nothing has yet been said about a general return to the workplace – just that ministers “will consider whether to lift the ‘work from home’ guidance” before the fourth step is implemented by 21 June 2021.
There is already confusion about what is expected of employees and whether they should or should not be going into their workplace and without any firm guidance in the current roadmap this is no more clear than it was before. But what is the actual legal position?
The key for employees and employers in the accounting sector is understanding what you are and are not allowed to do. The best reference is the guidance laid out by the Government which provides the permitted work and social reasons for individuals to leave their home. At the moment, the instruction is to still work at home if you can, and the Prime Minister has indicated that this is unlikely to change before 21 June.
The general rule of thumb was probably best put by TUC’s general secretary Frances O’Grady who said that “no one should be forced into the office or another workplace if they can do their job from home. Bad bosses are needlessly putting workers at risk and increasing transmission in local communities.” While the rules are in place to help contain coronavirus, they do not mean that businesses cannot be open and have employees attend work.
Is a business permitted to open?
The first thing to consider is whether the business is one that is permitted to remain open. The government produced a list of those businesses which fall under this category, which includes businesses which provide services such as accountants or solicitors.
In theory, this means that employees of these businesses can leave their homes if they cannot effectively do their work from home. What this actually means in practice is more open to interpretation and how effective employees are able to actually be whilst working from home. For example, if an employee is unable to work from home because of poor facilities, or there is something that stops them from working effectively, they can travel to work.
These arguments may not receive much sympathy if staff have worked effectively from home for months and employers are now insisting that they are required to attend the office without a significant change in circumstances. An employer should still let office employees work from home if they can.
As employers, accountancy businesses and their clients must also ensure that they review their coronavirus risk assessments and put in place measures for the safety of their staff and any clients. This will include things such as PPE, hand cleansing facilities and ensuring policies are implemented to ensure social distancing in the workplace.
The government’s guidance on what is expected should be your reference point but do listen to your staff and their recommendations too. Remember also to plan and put in place precautions for those employees that may be required to stay away from their homes overnight for work.
As part of a review of safety measures, it is important to bear in mind those employees that fall into the category of being extremely vulnerable and are required to shield. If they genuinely cannot effectively do their roles from home, then it may be necessary to consider whether they are eligible for furlough or another type of leave.
If accountancy businesses and their clients find themselves faced with an employee who refuses to come to work because they do not want to spread the virus, they want to work from home for health and safety reasons, or they must work from home because of their own high level of risk, then it is important to take a step back and analyse whether or not those employees genuinely are unable to work effectively from home.
If employers cannot justify their approach then it is likely to result in a variety of potential claims being brought against them, as well as possible penalties from the government.
For example, the financial penalties for employers who encourage employees or workers to attend work when they should be self-isolating are significant, ranging from a sliding scale of fixed penalty notices at £1,000 for the first offence and increasing to £10,000 for the fourth and subsequent ones.
It is also extremely important for employers to avoid making snap decisions about disciplining or dismissing those staff who refuse to attend the workplace. Otherwise, employers could very quickly be facing potential automatically unfair dismissal claims, claims for detriments relating to protected disclosures or possible discrimination claims. As with the Government’s roadmap, employers should proceed with caution.
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Barry Ross, Director, Crossland Employment Solicitors, has been practicing Employment Law since 2006 when he worked in-house for major legal expenses Insurance provider, DAS. There, he provided employment law advice across a whole spectrum of issues to commercial and individual clients. Barry provides commercial advice on all employment issues...