So as Boris sits in his bunker and works on Plan C (early draft – “Go to Sardinia. Don’t come back“), employers in England are confronting the shoulder-sagging knowledge that all their prior work on cajoling people back to the office has been comprehensively torpedoed by Plan B. However, leaving aside the obviously deeply unworthy suggestion that the Government might find it easier to do that than answer questions about a party a year ago, what in practical terms does the renewed “WFH if you can” advice actually mean, and not mean, for those businesses?

  1. First, despite the headlines today (“PM orders return to working from home” —The Times), this is advice, not law. Employees who want to go to the office still can. It is not a new lockdown.
  2. However, whether law or not, this bit of Plan B will substantially undermine employer efforts to restore their “old normal” through pressure of varying degrees of subtlety on staff to return to the office for the majority of the week. We see little benefit to employers in fighting that conclusion – the emergence of Omicron makes it clear that even with vaccinations, Covid-19 still has the capacity to sidestep Government and medical expectations almost at will, and it would take a very brave politician or scientific adviser to say that Omicron is its last throw of the dice.
  3. What Plan B will undoubtedly do is feed the views of anti-vaxxers and those already reluctant to return to the workplace. It will not just put back the return to the workplace by many months (even if the Plan B regulations are initially time-limited to only six weeks, as proposed, the impact on such views will last much longer), but it will add moral and emotional weight to employee objections to RTO and to no-jab, no-entry policies. After all, it will be said, if Omicron can get past existing vaccines to some extent, what is the point of my employer insisting on them?
  4. By contrast, what Plan B will not do is mean that any of that is correct, or that the employer’s legal position has changed in any way. If you need people to be in the office you can still require it, at their ultimate cost should they refuse. If Omicron is as transmissible as billed, the need for precautions in the office (including masks, renewed emphasis on social-distancing and increased focus on entry conditions) can only be strengthened, not weakened. Nothing in the announcement of Plan B affects the operation of the flexible working rules or your ability as employer to decide requests for increased WFH based on the needs of the business, not the preferences of the employee.
  5. Plan B also requires employers to be seen to look again at their Covid-secure compliance measures. If you are going to require people to attend in the face of express Government advice that they should not, you will need to deny them every possible basis for concern that your workplace precautions are inadequate. Therefore in the light of what is now known about Omicron (and accepting that at present, that is basically nothing), it is worth having another run through your workplace Covid precautions and asking yourself if there was genuinely nothing more you can do to mitigate the risk of infection. Then tell your staff about this exercise in order to reassure them that so far as anyone is, you are on top of the situation. That should limit their ability to claim protection under Sections 44 and/or 100 Employment Rights Act (the right not to be subjected to detriment or dismissal for health and safety reasons). Their fears that Omicron poses a serious and imminent risk to their health in the workplace may be understandable and genuine, but that does not make them objectively reasonable.
  6. At the margins of feasibility employers should probably best roll with this particular punch and if not positively encourage it, then at least facilitate WFH where it is requested. However, if you can show a clear reason for what you need in the office and why, there is no need to do so at serious cost to the best interests of the business.
  7. Last, with the exception of employers in the sports and live entertainment arenas, it is probably not worth spending too much time on Plan B’s new “party rules”. First, no amount of effort will allow you to square them with whatever may have happened but almost certainly probably definitely didn’t in Downing Street last year, and second, our initial impression from clients is that the likelihood of your getting 500 or more of your staff together in one place these days is practically nil anyway. Our feeling is that Christmas events are likely to be heavily polarised this year – either restrained and slightly funereal affairs on the one hand, or on the other, something out of The Last Days of Rome, a final Bacchanalian hurrah before we move into an uncertain 2022. Enjoy!