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The government has recently announced new measures to tackle a rising number of coronavirus cases. Here we review the employment-related changes being brought in and consider what they might mean for charities and organisations with staff and volunteers.

For information and commentary on the new Job Support Scheme announced by the Chancellor on 24 September, see here.

1. What changes have the government announced?

Since May, the government has been encouraging a gradual return to the workplace. On 22 September, however, we saw a reversal of this position.

Now, in its guidance Coronavirus FAQs: what you can and can’t do, the government is advising that:

  • Office workers who can work effectively from home should do so over the winter.

  • Where an employer, in consultation with their employee, judges an employee can carry out their normal duties from home they should do so.

  • Anyone who cannot work from home should go to their place of work.

  • Employees who are in the clinically extremely vulnerable category can go to work if it is COVID-Secure, but should carry on working from home wherever possible.

There is specific government advice for charities and organisations providing home care, supported living services and education and childcare. The Charity Retail Association has also produced detailed guidance for charity shops on how to re-open. We do not consider these situations in detail here, although the considerations below will still be of use.

2. Does this mean employers must stop their return to the office plans?

Not necessarily; the government’s change in position does not (at this stage at least) make any legal changes to what employers can and cannot do – it’s expressed as guidance, rather than a legal obligation.

In particular, there is scope within the guidance to allow some employees to continue working from their workplace. For a start, it permits those who are unable to work from home to return. Even for those who can work from home, the guidance talks about doing so if it can be done “effectively” or if they can carry out their “normal duties” (this is in contrast to the position during lockdown, when employees were told to work from home if possible).

Employers should also continue to be mindful of their health and safety obligations and the employment rights of their staff. Employers should therefore review their return to office arrangements to determine if they are in line with the guidance, or if any changes should be made to either current or future plans. It may be that a different approach is required for different employees, depending on their circumstances and particular risk factors. Croner have produced a useful Back to Work Guide that discusses these issues.  

3. Does the position differ for different employees?

The guidance emphasises that decisions should be taken “in consultation with their employee” (this discussion should be carried out on an individual level). Here, we look at some of the ways in which different approaches may be required:

  • If employees still want to come into the office, can we allow them?

This will now to a large extent depend on their reason for wanting to come in. If they can carry out their normal duties effectively from home, then the guidance says that they “should do so”. 

However, “effectively” is not defined in the guidance and it is likely that employers will be able to interpret it relatively widely. So employers should be able to allow employees to return to the office for reasons relating to wellbeing, lack of childcare, inadequate workspace or reduced productivity etc. This is likely to remain a fluid situation for some employees, especially given that the instruction to work from home is set to last “all winter”.

Before allowing any employees to return to the office, employers should ensure that the workplace is COVID-Secure in line with government guidelines. NCVO have produced a useful information hub with information and links about how employers may go about this.

  • Can we insist on employees coming into the office?

The Employment Rights Act 1996 gives employees protection from detriment or dismissal if they have a reasonable belief that their workplace poses a serious and imminent risk to health, and so refuse to attend as a result.

If employers are satisfied that their workplaces are genuinely COVID-Secure, and can demonstrate that staff are not able to carry out their normal duties effectively from home, theoretically there may come a point where they can insist that employees return to the workplace and potentially take disciplinary action if they fail to do so.

However, the government’s latest announcement has raised the stakes for this particular course of action and it’s not one which we would recommend lightly, unless in exceptional circumstances. If an employee can work from home in some capacity (even if perhaps not as effectively as in the office), then employers should allow this. Even for employees where home working is not possible, alternatives – such as unpaid leave or the furlough scheme while it is still running – are likely to be safer options at the current time.

  • What is the position for clinically extremely vulnerable employees?

The guidance hasn’t changed the position for employees who are clinically extremely vulnerable. As a reminder, the government’s advice on shielding for these individuals ended at the beginning of August. Since then, the government has said that they can return to their workplace if it is COVID-19 Secure, but should carry on working from home wherever possible.

4. Other changes affecting return to the office plans

The government has also made changes to other guidance which may have an effect on employment practices:

  • The rule of six – it is now against the law to socialise in groups of more than six, subject to various exemptions. One such exemption allows larger groups to meet for work purposes.

  • Legal requirement to self-isolate – it is now a legal requirement to self-isolate if you have coronavirus or have been asked to do so by NHS Test and Trace.

  • NHS Test and Trace – the guidance now makes is compulsory for employers to keep a record of all staff working on their premises.

  • Testing guidance – the Department of Health & Social Care has published new guidance for employers on coronavirus testing. There is no obligation on employers to run testing programmes, but this guidance sets out key considerations for employers considering doing so.

  • Face coverings at work – the government has introduced regulations making it a requirement for employees in specific workplace settings (eg hospitality, retail and tourism) to wear face coverings, with financial consequences for breach.

If you require further information about anything covered in this briefing, please contact Benjamin Pass, Kathleen Heycock, Amy Wren, or your usual contact at the firm on +44 (0)20 3375 7000.

This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.

© Farrer & Co LLP, October 2020

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