In the Government’s Covid-19 Response – Spring 2021 (the “Roadmap”) published on 22 February 2021, and Boris Johnson’s announcement on the same date, the Government set out its plans to “cautiously” ease the current national lockdown restrictions in England which have been in place since January 2021. This will be implemented in England in four stages, with the first stage having commenced on 8 March 2021 and the second stage having commenced on 12 April 2021.

Although the position in relation to homeworking where possible continues for the time being and there is little specific information in the Roadmap on the issue of the eventual return to the office, employers should now start to consider their approaches to the return of employees to the workplace once this is permitted and appropriate. This is likely to involve finding an appropriate balance between the commercial, operational and strategic requirements of the business, the realistic expectations of their employees, and what is reasonable and practicable in light of evolving Government guidance and the possibility of localised further waves of Covid-19 infections in the short and medium term.

In this article, Michelle Chance (Partner) and Chris Warwick-Evans (Associate) consider some of the different approaches employers are taking on the issue of the return to the workplace. They also identify some of the key considerations for employers to start addressing now to increase the likelihood of their workforce understanding and accepting their proposals and minimising the risk of unnecessarily damaging employee relations and wellbeing in a challenging economic environment, and minimising the risk of claims for discrimination being brought by their staff.

The Roadmap 

In the absence of significant regional disparity in Covid-19 infection rates and transmission, the Government intends to use the Roadmap to ease restrictions at the same time across the whole of England. However, the Roadmap makes it clear that local variations may be introduced if this is justified.

The Government has been explicit that its approach to easing lockdown in England will be guided by the data in order to avoid a surge in cases which would put unsustainable pressure on the NHS. Given that it will take around four weeks for the data to reflect the impact of the previous step and the Government’s decision to provide a further week’s notice to individuals and businesses before making changes, the Roadmap therefore sets out indicative “no earlier than” dates for the steps which are five weeks apart.

  • Step 1 – 8 March 2021: Now Completed. Although schools, colleges and childcare reopened, Government advice remained clear that employees should continue to work from home and employees should only leave home for work purposes where it is unreasonable (or not possible) to do their job from home. Employers were required to continue to take “every possible step” to facilitate their employees working from home, including providing suitable IT and other equipment to enable remote working.
  • From no earlier than 29 March 2021, “stay at home” was replaced by “stay local”. The Roadmap suggests that the legal requirement to work from home would remain until 29 March 2021 and that Government guidance thereafter will be for people to continue to work from home wherever this is possible.
  • Step 2. On 12 April 2021, retail, personal care premises, indoor leisure and outdoor hospitality re-opened, though staff should continue to work from home where they can.
  • Step 3. From no earlier than 17 May 2021, although indoor hospitality will re-open, Government advice will continue to be that staff should work from home where possible. Depending on the conclusions of the Global Travel Taskforce, international travel may be permitted from 17 May 2021 (at the very earliest).
  • Step 4. From no earlier than 21 June 2021, the Government will remove all limits on social contact and this date is the earliest likely change to Government guidance permitting a significant return to the office or other workplace. Ahead of Step 4, the Government will review its guidance in respect of working from home, social distancing and the use of PPE in the workplace. It is important for employers to note that 21 June 2021 is not an official date as to when staff should return to the office. Given that many workers will not have been vaccinated yet by 21 June 2021 or will be awaiting their second vaccination, and that individuals typically need to wait three weeks for the second vaccination to be fully effective, in our view, it seems unlikely that there will be a significant return to the office until August or early September.

These Roadmap dates (as above) are wholly contingent on satisfactory Covid-19 transmission and infection data, and subject to change if the four tests (below) are not met. To this effect, before taking each step, the Government will review the latest data on the impact of the previous step against the tests below:

  1. The vaccine deployment programme continuing successfully;
  2. Evidence shows that vaccines are sufficiently effective in reducing hospitalisations and deaths in those vaccinated;
  3. Infection rates do not risk a surge in hospitalisations which would put unsustainable pressure on the NHS; and
  4. The Government’s assessment of risk is not fundamentally changed by new variants of concern.

A mismatch of expectations?

Boris Johnson has dismissed predictions of both the death of the commute after months of working from home and the idea that lockdown will lead to a shift to permanent home working, stating recently that workers will be “consumed with desire” to get back into the office in a few months’ time. However, it has become clear to us during the most recent lockdown that staff expectations of what work should look like, and how this is balanced with caring responsibilities and leisure has changed dramatically over the last 12 months.  It is also clear to us, that to recruit and retain the best talent, many employers are going to have to carefully balance their own operational and commercial requirements with the (reasonable) preferences and aspirations of their own employees.

Even of those staff who miss the office environment and their colleagues, many will wish to retain the flexibility to work from home for at least some of the time, and we expect that only a minority of staff will wish to immediately return to the office on a full-time basis or remain working from home on a full time basis indefinitely. Our prediction is that most staff and employers will adopt a hybrid working arrangement with the intention of giving all parties the best of both worlds.

Although working from home has some significant challenges, many employees have adapted well and risen effectively to these, and it is undeniable that some employees (although by no means all), when provided with the right IT equipment and other support, are as productive when working from home as they are in the office (and in some cases, more productive), often working harder and for longer hours. On the other hand, we are aware that some staff are becoming less motivated and disengaged from their employers and are starting to underperform partly as a result of a prolonged period of time spent working from home. There are also legitimate concerns about the loss of training and mentoring as a result of prolonged working from home, particularly of junior and mid-level staff who will be missing out on experience, exposure and networking opportunities which are important for their development and progression, and often happen spontaneously in an office environment and which are often difficult to easily replicate when working remotely.

What are the preferences of some leading employers?

Employer proposals on what the return to the workplace will look like reflect their own commercial drivers and those of their sector, and their culture and ethos, including the weight they attach to staff preferences and wellbeing.

On the one hand, some employers, such as Goldman Sachs, have made it clear that their strong preference is for a prompt return to business as usual whereby full-time staff work from the office 5 days a week, and that home working should be regarded as an aberration which the bank will seek to correct as soon as possible. In particular, David Solomon, the bank’s CEO, has recently made it clear that home working is not well suited to the bank’s working culture and makes it harder for new recruits to get the mentorship they need to succeed. Similarly, Canary Wharf Group’s head of strategy, Howard Dawber, has recently made it clear that he is expecting a significant number of staff to return to the office over the summer. The Group expects Canary Wharf to be back at full occupancy with the eventual return of 120,000 office workers, even if some employees are working from home for one or two days a week.

Contrastingly, other leading businesses, such as Microsoft, Facebook and Twitter have announced that their employees will have the option of working from home permanently, and others have announced hybrid arrangements. The popular music streaming company Spotify has gone so far as to say that it will offer its employees the option to work from home, or anywhere, permanently.

What are the key issues for employers to start considering now?

Although we await specific guidance as to what the eventual reopening of workplaces will look like, we recommend that employers start to consider their back to work planning, and have therefore set out some key points for employers to consider below.

It will be important for employers to bear in mind that a flexible and pragmatic approach to easing lockdown working arrangements, including consultation with staff in some circumstances, is likely to be the most successful approach. This is particularly important given that Government advice will evolve and further waves of Covid-19 infections are possible, and (as above) there is no guarantee that all of the Roadmap dates will be adhered to.

Businesses which start addressing the key issues now will also have the benefit of a longer period in which to communicate and engage with their staff, many of whom will be anxious and concerned about their health and that of their families and job security in an uncertain and challenging economic environment. It will be particularly important as the requirement to work from home is relaxed in line with the Roadmap, for messaging from the business to be consistent. This will require buy in from senior staff and leaders and it will be important that messaging from the business strikes the right tone. Employers with internal communications teams are likely to be well placed in this regard, though other employers may wish to start planning to obtain specialist communications advice over the coming weeks and months.

Employers will also need to carefully monitor the Roadmap for changes and updates and to look out for the publication of further Government advice and guidance in respect of Covid-19 over the short and medium term.

  • If an employer has yet to decide where it would like its staff to work once the lockdown restrictions are eased and staff no longer have to work from home indefinitely, employers should start to consider on a role by role basis what the employer’s preferred approach is regarding where their employees will work.
  • Some employers will decide that they wish all staff to work from the office and return to their pre-pandemic arrangements where this is possible, and will need to think about which staff should come back first, or whether it is appropriate for all staff to return at the same time. Other employers may seek a combination of home based and office based working (agile working), potentially with split teams initially so as to help protect against workplace infections, and a minority of employers are likely to adopt as much working from home as possible in future. The employer’s decision making process should ideally involve speaking with its managers and other leaders to objectively consider what has and hasn’t worked well during the last 12 months and to map out the future plans of the business, and which (if any) of the current homeworking arrangements it wishes to retain going forward. It is also worth checking employees’ contractual terms of employment to ensure that implementing the business’ plans will not inadvertently put them in breach of these.
  • Although we would expect that only a minority of employees will prefer to work exclusively from home post-lockdown and that the majority of employees will want to retain some flexibility in how and when they work, from a productivity, labour relations and employee wellbeing perspective, we recommend employers consider consulting with their employees as to their preferred place of work (where this is practicable), and their (reasonable) preferences are factored into employer decision making where possible.
  • Given the change in employee attitudes to work over the last 12 months, in our view, employers who try to insist on a prompt return to fulltime work in the office are likely to receive multiple flexible working requests. Employers should ensure that their HR teams are adequately prepared and trained to deal with these requests and that they have policies in place which comply with the statutory scheme. Such employers should also consider documenting now for their own purposes why working from home isn’t working well for their business (bearing in mind the statutory grounds for refusal of flexible working requests), as this may be useful when refusing a future request for flexible working or dealing with an appeal of the refusal of such a request.
  • Employers should be aware that agreeing to a flexible working request constitutes a permanent contractual change and so they should ensure that there is a trial period. Further, they may less formally permit work to be undertaken in line with an agile working policy so that such changes would be less likely to constitute a permanent contractual change. Employers should not be quick to reject out of hand agile or flexible working requests though should remember that working from home during a pandemic is very different to working from home in ordinary circumstances.
  • In any event it is likely to be time well spent for all employers to clearly identify (and document) the reasons for their decisions as to where they would like their staff to work once the lockdown restrictions are eased and when staff should return to the workplace. In particular, in the event of an indirect discrimination claim (for example on the basis that an employer’s approach to reopening the workplace or future working arrangements puts those with a protected characteristic, such as sex, race or disability, at a particular disadvantage and cannot be justified), it is likely to be helpful to point to this in order to try to defeat such a claim.
  • Whatever working arrangements are put in place once lockdown ends, employers should continue to bear in mind their health and safety obligations to their staff (including the proposed extension to workers of the statutory protection employees have against detriment as a result of their reasonable belief that being at work would place them, or someone else, such as a household member, in serious, imminent danger). We also recommend that employers consider whether it is appropriate to conduct new risk assessments to ensure that staff (wherever they are working from) are adequately protected and not exposed to risk unnecessarily. In particular, employers will need to consider how they will continue to support vulnerable employees, many of whom are likely to experience anxiety as workplaces start to reopen, and what arrangements they will put in place for these employees.
  • It will be appropriate for some employers to implement re-orientation or re-introduction processes for returning staff once lockdown ends (particularly if they have been on furlough from the outset) and introduction and orientation training for those staff members such as both authors of this article who have joined a new employer during lockdown. Employers should consider holding one to one or group meetings depending on the employer’s size with some or all of their staff to cover off health and safety and employee well-being issues and to signpost any relevant internal and external sources of support which may be helpful for staff.
  • Employers who wish their staff to promptly return to the office when this is permitted (at least for some of the time) should also start to consider how they will engage with, help and manage those employees who are not happy to return as requested. This will include HR and/or managers exploring with such employees what their concerns are and considering if there are ways in which these can be mitigated. For example, if the commute is the concern, employers may wish to explore staggered start or end times or if the provision of a car parking space would be helpful. If the reluctance to return to work is because of a medical issue or disability, it might be appropriate (or a legally required reasonable adjustment if they are disabled) to keep the employee on furlough leave for as long as this continues, have them work from home, put them on sick leave or agree to unpaid leave. Disciplinary action should be a last resort after having explored all reasonable concerns employees may have (and having taken legal advice), and it is now an opportune time for employers to make sure that they have comprehensive sickness and disciplinary policies in place.
  • Employers should also start to address how they will deal with any Covid-19 diagnoses of staff who have returned to work once restrictions have ended and how it will process data it receives or generates as a result of on or off-site testing of staff for Covid-19. Such information will be special category data and subject to more rigorous safeguards as a result. This will include consideration of how and which employees should be notified that a colleague has Covid-19 bearing in mind both the employer’s health and safety duties to its staff and its data protection obligations under the Data Protection Act 2018 and guidance from the Information Commissioner’s Office (ICO).
  • Given that domestic holidays in the UK were permitted from 12 April 2021, it is advisable for employers to start to address how they will manage the likely increase in holiday requests if they have not already done so. With the possibility of foreign holidays by no earlier than 17 May 2021, albeit to a limited number of currently unconfirmed destinations, employers will also need to consider how they will deal with the likely surge in requests once foreign travel is possible and whether they will require and need records of which foreign destinations are travelled to. This will also require addressing in good time the employer’s approach to employees who are required to quarantine, including at short notice or potentially in hotels on arrival in the UK where they are unlikely to have access to IT and other equipment necessary for their work. Other employees will no doubt require reminders to take holiday regularly so as to avoid the accrual of large amounts of untaken leave (which can be particularly costly for employers on termination of employment when making a payment in lieu of accrued untaken holiday), and to ensure employees get the rest and relaxation holiday is intended to facilitate.
  • Employers should also be alive to the fact that some employees who have “Long-Covid” may be disabled and therefore be protected from disability discrimination. To this effect, it will be important for employers to ensure they do not discriminate against employees who are disabled as a result of Long-Covid and should ensure they comply with their duty to make reasonable adjustments for disabled employees.
  • Employers should also start to carefully consider their approach and position, including their communications strategy with staff, as to whether they require or recommend staff vaccination against Covid-19 and the employer’s use of, or requirement for, Covid-19 lateral flow testing once their offices have reopened. In particular, employers should bear in mind employee access to Covid-19 vaccination and testing to ensure their proposals are practicable and should be alive to the risks of various forms of discrimination claims and how and when they will securely and lawfully process, store and delete special category data relating to vaccination and testing. Employers will also need to consider in good time the details and potential implementation of any certification regime brought in for staff and customers.
  • Employers should also start to consider the relevant health and safety precautions to take on return to the office, and future guidance issued by the Government in this regard. This is likely to include (re)consideration of Covid-secure workspaces, including arranging appropriate cleaning and disinfection, provision of sanitiser, implementing and enforcing rules on social distancing and ensuring adherence to guidance on the use of PPE at work (and how to deal with those staff who do not comply), and ensuring adequate ventilation and fresh airflow etc.
  • Employers may also need to consider whether redundancies are or may be required with the proposed end of furlough on 30 September 2021 (though this may be extended again), or before, bearing in mind the thresholds and potential requirements for collective redundancy consultation. It is also likely to be helpful for some employers to consider alternatives to redundancy as these may help to avoid having to make redundancy payments and incurring recruitment costs when the economy recovers.
  • Employers should consider how hybrid working arrangements will work in practice, as we see this as being the most popular working arrangement going forward. Managers will also need to be mindful that most staff meetings will have some staff attending physically and others virtually. Managers need to be mindful to give equal work opportunities to those staff members working from home, so that “out of sight, out of mind” does not become a reality. The journalist, Harriet Minter has warned of the dangers of a new ‘old boys network’ being formed on the return to the workplace if more senior men than women (due to primary caring responsibilities) choose to return to the office full time.
  • Employers also need to be mindful of the risk of sexual harassment if there are fewer employees in the office post-lockdown and more senior men and junior staff choose to return to the office more regularly or full time.

There is undoubtedly a lot for employers (and employees) to think about as the current Covid-19 restrictions slowly start to be eased. In our experience, it is clear that employers who take time to plan effectively early on and engage with their staff in a flexible, open and consultative way are likely to have a relatively smooth transition to the new normal. We expect particular challenges will be faced by those employers which do not adequately explain their plans to their staff in good time and which do not listen to and take reasonable steps to try to address their employees’ concerns. In particular, we expect those employers which try to impose prompt rigid return to work policies without good reason are likely to be faced with flexible or agile working requests and appeals if these are refused. In a more limited number of cases, we expect such employers to be subject to indirect discrimination claims from their staff which they are likely to find time consuming and expensive to defend (or settle), and in some cases, unlikely to successfully defend.

We regularly advise on all employment law and employee relations aspects related to Covid-19 including use of the furlough scheme, home working arrangements, performance management, sickness absence, redundancies and alternatives to redundancy, and have recently been advising employers on their initial steps when formulating their back to work plans. Please do not hesitate to get in touch if your business would like to discuss any of these issues or if you are a senior executive or senior professional looking for practical and strategic employment law advice on your own situation.

Authors: Michelle Chance, Partner and Head of Employment and Chris Warwick-Evans, Employment Associate at leading City law firm, Rosenblatt Limited.

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