Director at Crossland Employment Solicitors
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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.

8th Mar 2021
Director at Crossland Employment Solicitors
Columnist
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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.

Risk assessments

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.

Replies (8)

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By Paul Crowley
09th Mar 2021 22:34

I had a shock today
A furloughed worker arrived at office to work
Kids back at school
Her choice, not mine

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Replying to Paul Crowley:
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By Paul Barclay
10th Mar 2021 10:28

If they are furloughed, then they are furloughed by the company - not their choice whether they come in or not!

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Quack
By Constantly Confused
10th Mar 2021 09:06

My employer has not closed their doors since the Pandemic started. Technically we are allowed to work from home, but there is a huge stigma attached to it and people act like you are laid watching TV all day, even when you do longer hours than you would in the office.

So yes, employees can be forced to work in the office.

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By seventax
10th Mar 2021 09:57

There is a difference between employers who insist people come in and those who leave it up to the employee but keep the office open, go in everyday themselves and let anyone who wants to go in do so with no procedures to monitor how many are in at any one time. The definition of what 'effectively' work from home means is being stretched very thinly at times. Those who wish to stay at home become a minority and there is a stigma attached, it may be unspoken but it's there and you are just waiting for the other shoe to drop and for someone to throw it back in your face, even though you are in a job that can be done perfectly well from home and you are just following the rules. Times are changing and the professions need to move with them in terms of technology and home working or risk staff going to businesses with a more progressive outlook..

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By M3lissa
10th Mar 2021 10:09

Employees do not have a choice, they have to do as they are told.

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Replying to M3lissa:
RLI
By lionofludesch
11th Mar 2021 18:26

M3lissa wrote:

Employees do not have a choice, they have to do as they are told.

Up to a point.

Employers have obligations too.

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By mbee1
11th Mar 2021 08:37

We're still all largely working from home and have no plans to change it at the moment. One staff member goes in twice a week to collect the post and scan it. Any books or records that come in or anything that can't be scanned are couriered out to the staff member who needs them. Clients can only drop stuff off on those two days per week when someone is in the office and only by prior arrangement and always socially distanced.

We have taken steps to make the office Covid secure. It's open plan and desks are generally in twos so each desk is surrounded by plastic, there is a supply of face masks, visors, plastic gloves, sanitiser, etc largely still unused. I suspect we will never go back to how it was pre Covid. Our productivity has increased tremendously and it suits staff, particularly where they have children.

We've always had a flexible working policy so don't mind if someone needs to pop out to pick children up from school as, to us, the important thing is that the work gets done whether that is 9am to 5pm or 9am to 3pm with another couple of hours in the evening. We've given going back some thought and whilst the admin staff may go back to a degree, most other staff will probably go back one or two days a week on a rota or as they think fit.

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Replying to mbee1:
RLI
By lionofludesch
11th Mar 2021 18:28

mbee1 wrote:

We have taken steps to make the office Covid secure.

Jeez - is "one employee at the office at any one time" not Covid secure enough ?

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