Many of us have been working from home (in whole or in part) since the UK’s first national lockdown in March 2020. Whilst the success and productivity of home working has rightly (and perhaps belatedly) removed some taboos about remote working, the longer term consequences on how, when and where we work are less clear.
In part, this is because we are all operating in a restricted life. The long term success of home working at the levels we have seen will be tested as people begin to return to the office. However as the lockdown restrictions ease, there will be some key issues facing employers both in the short and longer term.
Refusals to return to an office?
There has been speculation that many will refuse to return. Whilst recognising the long term impact of the pandemic and the recent outbreak of a COVID variant will make many nervous, many others who have worked at home for 18 months will be keen to return to an office. This may be more so among groupings disproportionately affected by the lockdown for whom working from home has, frankly, been extremely difficult.
Likewise, in one of the first cases to emerge from the first national lockdown, an employment tribunal ruled that an employee had been fairly dismissed for refusing to come to work. In that particular case, the employer had adopted measures to make the workplace safe and the employee’s main concern was that the risk of coronavirus posed everywhere, rather than any specific concerns at work or concerns relating to their own health.
What this case highlights is the importance of risk assessments and following government guidelines in dealing with refusals to attend work, particularly on health and safety grounds.
It also shows it will be important to listen and understand the reasons any employee is unwilling to return to work. For example, it is unlikely employees will be entitled to refuse to return to their usual place of work once the recommendation that staff work from home changes simply because they prefer not to or because of a general concern about coronavirus. It is unlikely that an employee can argue that working at home remotely during the pandemic has changed their normal place of work.
In contrast, those struggling with mental health issues that relate to the outbreak or disabled staff whose journey to work is further disrupted by changes to public transport should rightly be treated with more sympathy and care from an equality perspective given the duty to make reasonable adjustments for disabled employees.
Responding to flexible working requests
Employers that operated with some staff working remotely are likely to face any number of requests for flexible working if they seek to go back to how we worked pre-pandemic. Employers can prepare for this relatively simply.
Firstly, to avoid being deluged with requests, employers considering adopting hybrid working need to communicate this is under review or set out what the plan will be. Most are likely to wish to trial arrangements, as they gain a better understanding over time of how the model impacts productivity, teamwork and collaboration. As part of this, developing a remote or home-working policy will be key, both dealing with expectations and any limitations as well as the very practical questions about equipment, health and safety and expenses.
The approach taken to issues like expenses and equipment need to balance a range of factors including an organisation’s values, the extent this is necessary to do a job safely and productively, and the extent this is employee or employer led.
Secondly, employers will need to bear in mind formal flexible requests for remote working may be harder to refuse, more so if this is for only part of a week. The grounds for declining flexible working requests are limited and the most likely to be relevant include detrimental impact on performance, inability to reorganise work amongst existing staff, and the burden of additional costs. This may therefore mean that employers consider trialling requests, rather than saying no, as a way to allow the full impact of the working arrangement to be tested in a truer setting.
Thirdly, employers should consider their limitations and what is/is not possible. For those companies that require customer facing staff, do you require geographic limitations on where an employee lives to avoid staff refusing to come in when meetings arise at short notice? Given the significant tax and legal costs arising when staff work abroad, do you make clear this is not permitted?
Fourthly, in a world where we are keen to harmonise and be consistent, the level of remote working is unlikely to be something you can be entirely consistent with. The degree of home working will vary depending on what you do, your level of autonomy and responsibility for others and the equipment you need to perform your role. Since this could trigger feelings of inequality, employers need to be open that not every employee will be able to work in the same way.
Positively embracing hybrid working
Whilst many have been quick to comment on the demand of employees for remote working permanently, equally employers attracted to reducing overheads and office space may wish to force a move to hybrid or fully remote working. This may allow employers to attract candidates who would not travel to their offices, which may also increase diversity.
As this will result in a change in an employees’ place of work, this will need employee consent. This may be possible to obtain voluntarily but if not, then employers can impose this by dismissal and re-engagement, albeit this may necessitate collective consultation first.
As ever, communication, reassurance and understanding are going to be key in re-opening all of our workspaces. But crucially, it will also require a clear plan and strategy for incorporating the best of remote working with office work.
Andrew Secker is a Partner and Employment Lawyer at UK law firm Mills & Reeve, who heads up the London practice. He supports national and international businesses operating in a range of sectors, and covers all aspects of employment law, from Tribunal litigation to director severance, the employment aspects of IPOs and beyond. His particular expertise is in outsourcing, TUPE transfers and restrictive covenant disputes.
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