Can employers require staff to return to the office? Kate Palmer, HR Advice and Consultancy Director at Peninsula, explains employer and employee rights now COVID-19 restrictions are lifted in England.

Return to office guidance

The global pandemic has resulted in a lot of ‘firsts’ for employment law in the UK. Many employers will have implemented remote working for the first time or had COVID-secure measures in place, such as facemasks and social distancing. Others will have had to tackle major communication and conduct issues.

When it comes to returning to the office, employers will have a lot to think about. Here we answer some FAQs now national restrictions have been lifted.

Can you require your employees to return to the office?

Although a change in homeworking guidance only applies in England for now, there may be reasons why employers across the UK will have to bring staff back to work. However, employee safety must be the priority during the initial return to work period.

Where it’s required that they return to work, employees will need to be reassured that the necessary measures have been put into place to ensure their safety. Requiring employees to work in an environment that puts their health/safety at risk could breach an employer’s duty of care.

Some employees may be cautious about returning to the workplace for fear that it puts them at a greater risk of contracting COVID-19, especially if they are clinically vulnerable. This may be fuelled by news reports from health officials warning of the risks of easing restrictions too early.

Employers may wish to explore requiring their staff to return to the workplace. However, while this is an option, employers should be careful about doing this as it could lead to a decline in staff retention and/or morale, or even cases of automatic unfair dismissal if health and safety issues are raised and the employer is found to have acted unlawfully.

Rather than requiring employees to return (and stating that an employee will lose their job if they don’t return), it’s important to first determine why the employee is reluctant. Once this has been established, the right kind of conversation can then be had with them, keeping their specific circumstances in mind, as well as government guidance and the needs of the business.

It may also be helpful to prioritise returning reluctant employees to work after they have had their second dose of the COVID-19 vaccine, if this is something they wish to take up.

Can you require your employees to get vaccinated?

When it comes to vaccines, arguably, the biggest question that many employers will have is whether they can legally oblige their employees to take the vaccine before returning to work. The government has not chosen to make COVID-19 vaccines mandatory, except for workers within the care sector.

For most employers, the most appropriate course of action will be to encourage staff to take the vaccine. Enforcing vaccinations, and disciplining employees who refuse to get vaccinated, could lead to costly constructive dismissal or even discrimination claims – unless such action is justifiable. Discrimination may arise where employees have valid reasons for their refusal which are connected to a protected characteristic under the Equality Act 2010.

Can you make your employees wear masks around the office?

Employers have a duty of care to safeguard the health, safety and wellbeing of their employees and this has not changed despite the government’s change in guidance.

When deciding whether to enforce face masks, employers should consider the nature of the workforce and listen to individual concerns. If employers decide to make face coverings mandatory in the workplace, they should remember that some employees may continue to be exempt. Employers should also be prepared for some resistance from whichever side of the facemask/no facemask argument has not gotten their preferred outcome. Dealing with this should be on a case by case basis.

Employees should be expected to comply with workplace rules. However, to manage any such resistance, employers are advised to listen to individual circumstances and explain how these have been considered in risk assessments.

Do you need to pay staff if they are quarantined after returning from abroad?

The requirement for employers to pay their staff if they must quarantine for 10 days after returning from abroad will depend on how the quarantine period is managed. Employers are not obliged to pay staff for quarantining if the reason for doing so is travel. This rule applies both when employees are working from the office and when they are working remotely.

However, if employees work from home during their quarantine period, they should be paid as normal. They should also receive full pay if they take annual leave during this period.

Summary

Homeworking and social distancing rules have changed in England, and it is hoped that Scotland and Wales will soon follow. However, this does not mean that employers should not be cautious.

Employers should carry out the appropriate risk assessments to determine:

• how quickly staff should be brought back to the office
• who should be brought back to the office
• the safety rules that should be in place, for example facemasks
• whether it is appropriate to wait for most employees to be vaccinated before filling up offices

About the author

Kate Palmer is HR Advice and Consultancy Director at global employment law consultancy at Peninsula.

See also

Working from home: what are the pros and cons for your business?

What to know about the Flexible Working Bill

How to combat post-lockdown anxiety in your workplace

What are Gazette company profiles?

Find out more

Equality Act 2010 (Legislation)

Image: Getty Images

Publication date: 2 August 2021

Any opinion expressed in this article is that of the author and the author alone, and does not necessarily represent that of The Gazette.