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Do Employers Have To Follow The New Work From Home Order?

Questioning worker at laptop

No one could blame you, as an employer, for being confused about the Government’s ‘Plan B’ announced on Wednesday, 8 December 2021. Designed to slow the spread of the hyper-transmissible Omicron variant the Government advised, among other measures, that employees should work from home if they could. We have received several calls from employers asking whether or not these new measures are law or mere guidelines and if they are the latter, is there a penalty for demanding staff come into work?

Many business owners are concerned about the working from home guidelines

Business groups quickly jumped to the defence of business owners following the Government’s latest announcement. CBI chief policy director Matthew Fell said the new restrictions were a “big setback for businesses”. He added: “Omicron will quite likely not be the last variant. We need to create consistency in our approach and build confidence by reducing the oscillation between normal life and restrictions.”

Similarly, British Chambers of Commerce president Baroness Ruby McGregor-Smith stated: “Yet again, firms are now being asked to make changes at the very last minute. Many businesses have only just begun to get back on their feet and this move will inevitably damage business confidence.”

Fortunately, following the 2020/early 2021 lockdowns, many organisations have already transitioned to a hybrid home/office model of working. Others anticipated the likelihood of winter 2021/22 being unsettled and decided not to demand employees return to the office but instead opened up their premises for those who preferred to go into work.

 

Can I ignore the new work from home guidelines and tell my employees they have to come into the office?

Several large businesses have announced that their offices will remain open. PwC chairman Kevin Ellis told the media that the company’s offices “will remain open for our people who have a business or personal need to use them”. JP Morgan Chase has also told staff that its offices will be accessible for those who choose to come in.

Concerns around the mental health impact of working from home have led some businesses to make decisions aimed at carefully balancing the latest guidelines with the genuine need of some employees to leave their homes for work to protect their wellbeing. Leeds-based digital marketing and PR agency Wolfenden told Raconteur that it will be allowing individuals to come into the office, despite the move to Plan B with Managing director Daisy Wolfenden stating: “We are keeping our offices open for those who need to come in, whether for practical reasons or because their mental health suffers when working from home full time. This is something we learnt in the first lockdown as some of our staff really struggled mentally or didn’t have suitable setups at home to work effectively.”

The Prime Minister’s “go to work if you must but work from home if you can” appears to be less strict than the “work from home unless you are unable to” directive that was put in place in previous lockdowns. The stipulation, however, is essentially the same – unless you have a good commercial reason for your employees to come into work, they should be working from home from 13 December 2021.

Notwithstanding the latest guidance, employers, like ourselves, will no doubt be torn in some cases between ensuring the health, safety and welfare of their employees in the workplace given the risk of Covid, versus protecting their employee’s health, safety and welfare working from home in an often isolated environment, where the line between work life and home life is easily blurred, leading to longer hours and an adverse impact on mental health.

Health and safety obligations

A further consideration regarding following the Government’s working from home guidelines is that as an employer, you have a duty to your employees regarding their health and safety. If your business requires some or all of your staff to work in a specific location it is imperative that you ensure adequate measures have been taken to enable social distancing. These include:

  • Conducting a risk assessment centred around how easy it is for employees to maintain a certain distance from each other and hygiene procedures which can be implemented to reduce the risk of Coronavirus spreading.
  • For some employees, especially those who are customer-facing, facemasks are now legally required unless the employee is exempt.
  • Install screens or barriers to separate people.
  • Provide plenty of hand sanitiser and regularly clean workplace services.
  • Ensure the premises is well ventilated.
  • Consult your employees on the health and safety measures you plan to implement.

You will find a wealth of information regarding how to keep your workplace Covid-safe on the Health and Safety Executive website.

Wrapping up

Although the work from home guidelines seem less strict this time than at the height of the pandemic it is still likely to be in your best interests to encourage employees who can work from home to do so. Not only is there a risk of breaching health and safety regulations by insisting all staff members come into work, but you may also leave yourself exposed to discrimination claims from employees who are clinically vulnerable as they may be protected under the Equality Act 2010 as a disabled person.

If you are unsure whether or not you can ask employees to come into the office, please talk to one of our Employment Law Solicitors who can advise you on your options.

 

To discuss anything mentioned in this article, please call us on 02476 231000 or email enquiries@askewslegal.co

Please note that this article is for information purposes only and does not constitute legal advice.