So here we are all again and, says the Government’s latest guidance, able to leave home to work only where it is “unreasonable for you to do your job from home“. This is the umpteenth permutation of the same underlying message about working from home if you can, and was almost certainly meant to say where it is “not reasonably practicable” for you to work from home, or where you “cannot reasonably be expected” to do so, rather than where your doing so is unreasonable in itself, which is basically a nonsense. Is this a deliberate dilution or softening of robust earlier messages about WFH unless “absolutely necessary” or “where the job requires it“, or not?
Almost certainly not. Those would be semantic shades of grey far too fine for the average government draftsman, let alone his/her intended readership. Therefore if you set off to the office to work in circumstances where you could feasibly do it from home, you will not have what the new guidance calls a “reasonable excuse” and may be subject to a £200 fixed penalty notice if stopped by the Police, doubling for each further offence up to £6,400 a go for those particularly slow to take the hint.
It is apparent immediately that this takes the middle stump out of almost any moves by employers to bring people back into the office for the time being. We know equally that the Regulations around the new lockdown will not go so far as to penalise employers which allow employees to return, except where aware that they have been told officially to self-isolate. There won’t yet be the sort of requirement imposed in Belgium, for example, where you can only come in if your employer has issued a certificate declaring the need for you to do so (though that might be a fair bet for a Tier 5 measure in due course). Therefore we are left with the same old question for this new lockdown – when is it not reasonably practicable for the job to be done from home, and who decides?
In many cases this is quite obvious – manufacturing, construction, critical national infrastructure, etc., as referred to in the latest guidance. Those who work in other’s houses (cleaners, plumbers, etc.) can still do so. In other situations it will be a much more nuanced judgement, depending not just on the role but potentially also on the individual. Take solicitors as an example. Some do very paper-heavy work, for example litigation disclosure beyond the capabilities of the average domestic printer, and some do not. Some need more access to hard-copy files than others. Some have much worse IT skills than others, such that their WFH becomes an extended ordeal of inadvertent errors, irretrievable deletions and mis-filings, teetering on the ragged edge between inefficiency and negligence. Surely that would be enough to make it not reasonably practicable for that solicitor to WFH, even if others could? Probably not. The Acas guidance on WFH during the pandemic includes reference to the provision by the employer not just of any equipment required by the employee to WFH, but also of any training required to use it. In the circumstances it is unlikely that the Police would accept as a reasonable excuse for your heading off to the office that your enduring inability to amend Word documents means that you need professional help only accessible onsite. Anyway, enough about me.
What else does the prospect of up to another 3 months locked down mean for employers?
- All the Prime Minister’s Churchillian references to triumphing over Brexit and the Coronavirus, darkest hours, keeping calm and carrying on, etc., show a man living firmly in the long summer of 1940. By contrast, it is possible to suggest that the wider UK population is close to exhausting not just its Dunkirk Spirit and its Blitz Spirit, but also the Spirit of ‘66 and its fabled GSOH, and is now just bored, depressed and more than a little scared. Repeated false dawns, government vacillation around everything from schools to scotch eggs and the obvious inadequacy of the measures taken so far all point to an increased threat to employee mental health. A new round of employee communications will be appropriate, not necessarily to say anything professionally useful (though see below), but at least to let your staff know that you are thinking of them in difficult times and that you are still there if they need you.
- We wrote last year about the need for employers to think in advance about their intended stance on WFH once the lockdown ends. Every day that goes past without obvious problems weakens their ability to refuse any WFH flexible working requests at that time, formal or not. The prospect of another three months at least of this (it could be more) should encourage those employers to raise now, not then, any problems or issues they are experiencing with any particular individual’s WFH. There may be little you can do about this in the short term – we consider that the Employment Tribunals will expect employers to share some pain here – but if you do not at least flag the issues with the employee now, no-one will believe that they are material enough to justify refusing such a request later on.
- Attitudes to WFH may have changed over time – those formerly resistant may now have come to terms with it, even enjoy it, while those previously gung-ho to stay at home may have missed the intangible benefits of contact with colleagues more than they initially thought. To the extent that you conducted any sort of vox pop or questionnaire among your staff on this point last year, you might now wish to reissue it as part of your planning and communication process.
- What will your stance be on requiring returning staff to have been vaccinated? If that is something you intend to insist upon where you can, best start telling people now.
- It may be wise to keep in mind also the probable final expiry of the CJRS at the end of April. The resilience and mutation of the virus suggest that the economic position then may still be worse than could have been anticipated. If you believe that you will need to make hard staffing decisions at that time, some initial (and obviously expressly provisional) planning now may make that easier later. If you have unions or an established staff representative body, probably best to include them in that. No-one is blind to what is coming in job-loss terms at that stage so better to greet it in co-operation with those representatives than not.
- The new lockdown means that many parents will be going Back to School with even greater reluctance than their children. This will almost inevitably have an impact on their ability to WFH effectively. The law here is not changed by the new lockdown and so you should continue to consult with them about what they can still do for you and between what hours, and/or look at periods of holiday, furlough or unpaid leave where appropriate.
- At the same time, do be seen to take another look at your workplace health and safety precautions to see if they adequately reflect the additional risk of transmission of the new-variant Covid. It may well be that you have already done all you can to comply with government guidance (e.g. back to 2 metre distancing, requiring 3-layer masks, etc). However, if there is more to do, do it and let your staff know. Think also about when it might be appropriate to re-do any of the cleaning/checks you had undertaken in anticipation of a return last year, for example Legionnaire’s tests in water tanks, and so on.
Overall, for all these reasons, we recommend that you stay in front-foot contact with your staff. You gain nothing (and can lose much) by putting off these conversations. Even if they are bad news or unwelcome in some other respect, and even if you are not yet able to make final decisions about some of these things, far better to start conversations now than try and have them all at the same time and be accused of hanging your employees out to dry when the WFH advice is finally relaxed. Your employees are not naïve – they will recognise (as they have to date) that much of this is outside your control – so the only proper course is to treat them as you would wish to be treated, i.e. as adults and with as much advance notice of things which may affect them as possible.