The Prime Minister has confirmed that stage 4 of the government's roadmap out of lockdown will go ahead as planned from 19 July. This means the end of mandatory social distancing, mask-wearing, and the lifting of all restrictions on the number of people that can meet indoors or outdoors. The government's advice to "work from home where possible" will also end, although it has described the return to work as "gradual". It was also announced last week that from 16 August, the requirement to self-isolate would end for those that have been double-vaccinated, and they will not be required to quarantine upon their return from amber-list countries. Here we look at some of the immediate and longer-term issues facing employers as they respond to these significant changes.
Can we ask employees about their vaccination status?
The government will pass legislation shortly that will require staff in care homes to be vaccinated, but vaccination in all other sectors remains voluntary. Employees can be asked to voluntarily disclose their vaccination status as long as the employer has a legal basis for processing such information and complies with the conditions for processing special category data (i.e. health-related information) under UK GDPR. For example, the legal basis could be that you need the information to fulfil your health and safety obligations to those that remain vulnerable to Covid-19.
If they refuse to tell us if they have been vaccinated, can we discipline them?
In the vast majority of circumstances, it will not be reasonable to discipline someone for not disclosing their vaccination status and nor should you attempt to impose a mandatory vaccination policy. However, you may consider having a Covid-19 vaccination policy in place to encourage staff to be vaccinated and share that information with you upon request.
Does this mean we no longer have to concern ourselves with the Covid-19 risk assessments?
Not quite. Even though face masks and social distancing requirements have been scrapped, you still have health and safety obligations towards your staff. It will be necessary to speak with staff about the return to the physical workplace. Or, if they are already attending work, you should consult with them about any changes you are proposing to make concerning health and safety. You may have some employees who have not been vaccinated because they are pregnant (and specific risk assessments should be carried out for pregnant employees). Some employees may be medically exempt (e.g. because of severe allergies) or perhaps have an underlying condition that makes them more vulnerable to the effects of Covid-19. You will need to assess any risks to them and their colleagues and put reasonable mitigation measures in place. You may also want to consider what can be done to limit transmission in the workplace by maintaining and encouraging good hygiene standards, continuing to provide hand-sanitiser, ensuring good ventilation where possible and so on. We anticipate that the government will publish further guidance on the gradual return to work shortly.
Do we have to let staff continue working from home if they want to?
No, employees must follow your lawful instructions and return to their workplace when you ask them to, in line with their employment terms. If, however, an employee has particular needs that arise from a disability, or they have told you about a condition that makes them more vulnerable to Covid-19, you should think about whether you need to make any reasonable adjustments.
We’re not sure about hybrid working; what should we be thinking about?
Many businesses are considering offering hybrid working - a mix of working from home and in the workplace - for various reasons, such as uncertainty over the ongoing impact of Covid-19, employee retention and recruitment (particularly if competitors are offering hybrid working) or potential cost savings. You should bear in mind that once you have permanently built flexibility into your working patterns, it might be difficult to revert to requiring employees to attend the workplace five days per week. The needs of your business should determine the right practical and long-term arrangement for your organisation. Think about whether any regulatory considerations might apply.
We don’t want to introduce hybrid working but we want to phase in a return to the office full-time, can we do this?
Yes, consult with staff and let them know that they will be required to divide their working time between the workplace and their home during a stipulated transition period and that when this ends, they will have to return to the workplace full-time.
If we want to try out hybrid working for a while, can we or does it have to be a permanent decision?
If you wish to try hybrid working, we strongly recommend implementing this on a trial period basis only so you can be sure it will suit your organisation long-term. If you make permanent changes to employee terms and conditions from the outset, it will make it more difficult to require employees to revert to pre-pandemic arrangements. Always retain the right to require employees to attend the office at short notice and let them know there will be circumstances when individuals may not be allowed to continue working from home. For example, there might be issues concerning an individual's performance or a change in the business requirements. It is a good idea to have a robust homeworking policy in place.
Do we need to give everyone a new contract if we change their working pattern?
Not necessarily; it will depend on what their current employment contract provides and what changes you are looking to make. For example, you might look to see if you have a contractual right to require homeworking for part of the time. Even if you have a mobility clause, it is likely to be pretty general. The safest option would be to obtain the employee's express consent to any new arrangements. Any changes (whether temporary or permanent) should be recorded and agreed upon in writing.
What about flexible working requests?
Employees have the right to make a flexible working request if they have worked for you for at least 26 weeks. For example, they may ask for a change to their working pattern, such as working from home on some days or reducing or changing their working hours. It is a good idea to have a flexible working policy in place so that employees know the procedure they have to follow. Employees can only make one request in any 12-month period.
Can we reject a flexible working request?
Yes, there are eight statutory grounds on which you can refuse a request. These are:
a) extra costs that will damage the business
b) the work cannot be re-organised among other staff
c) people cannot be recruited to do the work
d) flexible working will affect quality and performance
e) the business will not be able to meet customer demand
f) there's a lack of work to do during the proposed working times
g) the business is planning changes to the workforce.
There is no statutory right of appeal, but offering an appeals process helps demonstrate you have handled the request reasonably. Be careful to ensure that your refusal does not discriminate based on a protected characteristic, such as sex, and be especially careful when responding to requests from employees who are either about to go on or return from maternity leave.
Can an employee take us to an employment tribunal if we refuse a request?
Yes, an employee can bring a claim based on procedural failings by their employer, such as a failure to deal with their application in a reasonable manner, failing to notify them of a decision on their application, if the rejection was based on incorrect facts and so on. However, a tribunal will not question the commercial rationale or business reasons behind your decision to refuse a request or substitute its own decision on whether the request should have been granted. The maximum compensation is eight weeks' pay.
We are ready to advise and support your business through these challenging times. Please get in touch with your usual 3CS contact for more information on how we can help.
