Employers and staff need government answers on post-Covid office arrangements

The government is no longer instructing people who can work from home to do so, but instead advising employers to “discuss a return to the workplace with workers and trade unions to make working arrangements that meet both business and individual needs.” ^[1] This is easier said than done. The government has issued some guidance, of course, which is helpful so far as it goes. But it does not supersede existing legal obligations relating to health and safety, employment and equalities. Employers are simply reminded that “COVID-19 is a workplace hazard. You must manage it in the same way as other workplace hazards.”

In many non-office environments employers have been navigating these issues throughout the pandemic and staff have largely accepted the unavoidable risks of turning up for work – albeit that the social inequality with which these risks are distributed is well known. But where it has now been proven that certain office work can be done without close contact, the question of what it is reasonable to expect of staff is more complicated and a consensus remains to be formed. Employers can specify a place of work contractually, but they may now need objectively justifiable reasons for continuing to do so post Covid-19 if they are to feel confident of their legal position.^[2] The prevailing uncertainty, as large numbers of individual employers each try to work things out as best they can, could be a drag on productivity at a time when the economy needs to grow. Government would do well to address this through more concrete guidance or, if necessary, legislation.

Employers lack clear legal parameters within which to operate

UK employers are now having to address a range of covid-related workplace dilemmas. Should staff vaccination be mandatory? ^[3] If not, should staff be required to work alongside unvaccinated colleagues? Should older workers be treated differently to younger workers? If booster vaccinations are not universally available in the autumn, should staff who do not receive them be allowed or encouraged to stay away from the office? Can people expect face-to-face service in the new normal (e.g. from doctors or university lecturers)? When is it reasonable for employers to require international travel?

The list goes on. Employers have a duty to make reasonable adjustment for special circumstances (e.g. for those particularly vulnerable to Covid-19) and to make workplaces as safe as possible. But there is also a more general question about how far the increased risk we all now face means that our collective risk appetite needs to change. This won’t be accepted by everyone as a matter of employer discretion or stakeholder negotiation rather than politics. If left to courts and tribunals, it could take them years to work out the borderline cases.

These debates are not specific to the UK and other countries illustrate some ways to modify the rules or increase clarity. France has introduced a mandatory “health pass” covering a variety of work contexts on a temporary basis. In Singapore, vaccination can be required of staff at higher risk of infection. The Australian Fair Work Ombudsman has provided detailed guidance on covid-related employment issues.^[4]

Political statements on the return to work are an unhelpful distraction

Previous attempts by government to encourage individual responsibility for pandemic risk assessment – for instance over Christmas 2020 – caused widespread confusion, with communications being fragmented as ministers were asked for their individual views. This scenario is no different, and reported comments by Dominic Raab and Grant Shapps supporting “no jab no job” policies, for instance, could be distracting for businesses whilst carrying no weight in law. ^[5]

The extent to which people return to offices after Covid-19 is important for the future of urban economies, transport infrastructure, and the socialisation of new workers. But government has limited levers, particularly in the short term, beyond urging workers to return. Businesses will need to look past any political exhortations to clearly consider what is practical and beneficial for them.

One possible exception is Whitehall departments, which are in the unenviable position of needing to respond to political pressure whilst working with the same limited guidance as everyone else.^[6] Their actions are being closely watched, perhaps because observers hope to divine clues as to what future rules or guidance government might issue, or what actions can safely be taken within the law.

It makes economic and political sense to clarify the rules as far as possible

The government has so far opted not to re-write health and safety legislation in response to Covid-19. But it is a stretch simply to add Covid-19 to the list of workplace hazards: no other hazard in recent history has had such a broad impact or led to a lockdown of the entire nation. Even if Covid-19 must be normalised eventually, we are still in a period of transition and a recalibration of office workers’ expectations around risks at work and employers’ expectations around office presence may be required.

The government could helpfully assist the transition by clarifying, where possible, the parameters within which employers can act more concretely. The Australian Fair Work Ombudsman’s guidance on vaccinations and the workplace offers a good example of what can be done without new legislation.^[7] But temporary or even permanent legislation should not be ruled out where clear guidance cannot otherwise be drafted in the UK context, because cumulatively this may be less burdensome than individual employers each trying to second-guess the emerging legal position.

Addressing at least some of the current ambiguities more directly, in guidance or in law, would show political leadership in support of businesses as the economy recovers. Failure to do so, however, would seem an abdication of government’s responsibility.

1. Department for Business, Energy & Industrial Strategy and Department for Digital, Culture, Media & Sport, ‘Working safely during coronavirus (COVID-19),’ GOV.UK, 17 August 2021, retrieved 20 August 2021, https://www.gov.uk/guidance/working-safely-during-covid-19/offices-factories-and-labs. Note that this guidance is for England; there is different guidance in a similar vein for the devolved administrations.
2. Mills E and West A, ‘Can employers insist on staff returning to the office?’, People Management, 6 August 2021, retrieved 20 August 2021, https://www.peoplemanagement.co.uk/experts/legal/can-employers-insist-staff-returning-to-office
3. Partridge J, ‘Bosses battle over rights and wrongs of “no jab, no job”’, The Observer, 8 August 2021, retrieved 20 August 2021, https://www.theguardian.com/law/2021/aug/08/bosses-battle-over-rights-and-wrongs-of-no-covid-jab-no-job
4. Cottin J-B, ‘The new French health pass and mandatory vaccination: what do employers need to know?’, Ius Laboris, 29 July 2021, retrieved 20 August 2021, https://iuslaboris.com/insights/the-new-french-health-pass-and-mandatory-vaccination-what-do-employers-need-to-know/; Pinsent Masons, ‘Singapore issues guideline on Covid-19 vaccination in workplaces’, Pinsent Masons, 9 July 2021, retrieved 20 August 2021, https://www.pinsentmasons.com/out-law/news/singapore-issues-guideline-on-covid-19-vaccination-in-workplaces; Fair Work Ombudsman, ‘Coronavirus and Australian workplace laws’, Fair Work Ombudsman, (no date) retrieved 20 August 2021, https://coronavirus.fairwork.gov.au/  
5. Neilan C, ‘Jabs for jobs is down to individual companies, says No 10’, The Telegraph, 29 July 2021, retrieved 20 August 2021, https://www.telegraph.co.uk/politics/2021/07/29/boris-johnson-news-travel-us-isolation-pingdemic-keir-starmer/; Forrest A, ‘”No jab, no job” policies set to spark deluge of employment tribunals, lawyers warn’, The Independent, 2 August 2021, retrieved 20 August 2021, https://www.independent.co.uk/news/uk/politics/covid-vaccine-work-offices-government-b1894009.html
6. Daniel H, ‘Civil servants working from home should be paid less than those in office, says Cabinet minister’, i, 9 August 2021, retrieved 20 August 2021, https://inews.co.uk/news/working-from-home-civil-servants-should-be-paid-less-1141794
7. Fair Work Ombudsman, ‘COVID-19 vaccinations: workplace rights and obligations’, Fair Work Ombudsman, 20 August 2021, retrieved 20 August 2021, https://coronavirus.fairwork.gov.au/coronavirus-and-australian-workplace-laws/covid-19-vaccinations-and-the-workplace/covid-19-vaccinations-workplace…