Laura Robinson assesses the “new normal” – what does that mean for the return to the office?
In March 2020, to most people’s utter disbelief, life as we knew it changed beyond recognition when the Government announced that due to the emerging Covid-19 pandemic we should stay at home and only leave our homes for essential purposes. Essential purposes included travelling to a place of work but only if that work could not be undertaken from home……and so it began. Millions of us set up makeshift home offices on dining tables, ironing boards and wallpaper pasting tables. The refrain, “you’re on mute” became widespread as we all struggled with the technology. It was a strange new world where you had to Google the rules to decide whether you were allowed to do……well, anything normal at all!
Gradually, the rules lifted, and we entered a tentative period of masks, social distancing, stripping the skin from our hands with copious amounts of hand gel and crossing the road to avoid walking past strangers in the street. Businesses were issued with Government Guidance about how to keep people safe – hand gel at entry and exit points, screens, only one person in the lift, ‘up in the lift and down the stairs’, in fact myriad ways to keep people from coming into close contact with others. So, the announcement on 19th July 2021 that all legal restrictions had been lifted and that the guidance that we should work from home where possible no longer applied, was met with joy. It was announced with fanfare – freedom day! We could all just go back to normal, right? Back to the office? I’m not so sure. In fact, doesn’t it put employers and employees in a rather difficult spot?
Employers are left in a position where they cannot simply (as many previously did) follow the Government Guidance to the letter regarding the measures in place in their offices and businesses, in the hope that if a problem arose, they could simply say that they did all that they had been asked to do by Government, and therefore that should be enough to absolve them of any liability.
Employees may be genuinely concerned about returning to the office and whether it is safe to do so if restrictions have been lifted.
Sections 2 and 3 of the Health and Safety at Work Act etc 1974 require an employer to ensure the health, safety and welfare of employees and to conduct their undertaking such that as far as reasonably practicable the employees are not exposed to risk. Regulation 3 of the Management of Health & Safety at Work Regulations 1999 provides the mechanism for the assessment of risk to the workforce.
Section 44 of the Employment Rights Act 1996 (as amended) provides that an employee/worker must not be subjected to detriment when, in circumstances of danger which the employee/worker reasonably believed to be serious and imminent and which he could not be expected to avert, left, proposed to leave, or while the danger persisted, refused to return, to his place of work or any dangerous part of his place of work. Section 100 protects employees (but not workers) against dismissal in the same circumstances.
Many employers are currently encouraging their workforce to return after the summer break – some are suggesting a return to full time working in the office, some are suggesting a hybrid working model and others are simply saying do what suits you best. So, what should employers be considering before they request that people return to the office? And what can employees do if they are concerned about returning?
It seems clear that businesses and organisations should be conducting risk assessments within their workspaces to ascertain the risk of a Covid-19 outbreak in circumstances where the office is full, there are no social distancing measures and no other Covid-19 protection measures i.e. what the risks would be if we all just returned to “normal”. From that starting point they should then be looking to mitigate the risks they have uncovered and be assessing the risks for different groups of the workforce i.e. the clinically extremely vulnerable, the clinically vulnerable, pregnant women, older employees, the unvaccinated and those with underlying health conditions etc. The risk to each category is likely to be significantly different i.e. it might not be safe to ask those that have been shielding because they are clinically extremely vulnerable to return to a full office and be shut in a badly ventilated conference room with twenty others for a team meeting once a week. What can be done to mitigate that risk? Is it necessary for them to attend in person at all?
Different activities within the workspace might also require a separate risk assessment – team meetings, entry and exit to the building, movement around the office, use of toilets and kitchen areas – is the risk the same in all areas and can it be mitigated?
Travel to and from the place of work might also need to be considered – is it safe to suggest that the workforce should travel to the office every day in rush hour on public transport in circumstances where there are no social distancing rules in place on public transport and people are not legally obliged to wear masks? Might that carry more risk for some categories of the workforce than others? Might that risk change if there is an increase of the prevalence of Covid-19 in the general population i.e. if the cases spike when the children return to school or a new variant emerges?
What if employers are met with resistance from their workforce? The ERA 1996 makes clear that it would not be prudent to insist on a return to work for all staff without ascertaining the reason why they are loathe to return to the office – if employees reasonably believe there to be serious and imminent danger they can refuse to return to their place of work or any dangerous part of their place of work and should not be subjected to detriment or dismissal as a result. Again, different employees might well have different considerations – living with a clinically extremely vulnerable family member, living with a pregnant woman, being a carer for an elderly relative or having their own underlying health condition, to name but a few possibilities. The danger to each employee might therefore be different – that risk should have been uncovered by the risk assessments conducted.
The sensible way forward seems to me to be good communication and planning. An employer must have carefully considered all of the risks associated with what they are actually asking their employees to do, and have asked the important question whether, from a business point of view, it is actually necessary to ask their employees to take that, or any, risk. If the answer is yes, the employees must return to the office for some or all of the time, then the employer must have assessed all the risks, in all the categories of circumstance carefully, and have put into place measures to mitigate that risk. That risk must be regularly reviewed in light of changing circumstances. Therefore, we might not yet have seen the end of limited occupancy in the office, masks when moving around the workspace or ‘up in the lift and down the stairs’ type safety measures.
Communicating to employees the risk assessments made and the measures put in place to mitigate risk might go some way to alleviating any concerns. However, if employees have their own circumstances which mean that they remain concerned and feel that they would be in danger if they were to return to the office, these should be flagged to the employer and an explanation provided of why they have particular concerns and what the ideal solution would be for them. An employer would be sensible to consider the employees circumstances carefully, carry out a bespoke risk assessment, or explain the current appropriate risk assessment to the employee, discuss the concerns and any accommodations that might be made with the employee and be mindful of any discrimination issues (particularly concerning disability) that might arise before making any decision that an employee must return to the office regardless.With appropriate risk assessments, good planning and communication and a measure of goodwill and common sense, let us hope that we can achieve a “new normal” that we might just be able to live with.
employment & discrimination 