Legal Matters Q&A: Homeworking and a Cautious Return to Work

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As the lockdown is gradually lifted, some knotty employment law questions are posed by Richard Gvero as we embark upon the journey to normal working.

What if an employee wants to continue homeworking but you want them in the workplace?

Normally, you could refuse homeworking for business reasons. But given the current pandemic, the primary question is whether working from home is possible and not whether it is as productive or effective. Generally, it will be difficult to justify insisting on a return, particularly where the work is done in front of a computer screen and on the telephone.

With homeworking hurriedly implemented in most cases and set to continue in many businesses, focus on health and safety implications is needed going forward. Whilst homeworking should not present special dangers, workstation assessment is prudent nonetheless.

How do employers need to approach health and safety for the return to work?

Employers have a duty to take all reasonable steps to provide employees with a safe place to work. The Coronavirus crisis is unique in that it has an impact on the safety of every workplace in the country and all employers will need to develop specific responses to it. In the first instance, as required by Government guidance, this means carrying out a risk assessment designed to identify the risks of the transmission of Covid-19 and identify the steps that can be taken to reduce that risk. Employees must be fully informed of the results of this risk assessment and the employer must consult with the appropriate health and safety representatives or the employees directly over any new safety measures that are to be introduced. Central to these will be handwashing and hygiene procedures and, of course, social distancing will remain a key requirement. If distancing does not work, there will need to be barriers or screens to separate people, staggering arrival and departure times and personal protective equipment.

If an employee refuses to return because they are frightened about the health consequences, does this amount to misconduct?

This is of course a very fact sensitive question but the respective reasonableness of the employer’s and employee’s positions would involve assessing the safety of the workplace and the employee’s safety concerns and balancing conflicting interests. A flexible approach on the part of the employer is advisable and the proper consideration of whether the work can be done from home or whether there are any extra safety measures that can be taken.

What are the risks regarding equality and discrimination?

Equality and discrimination issues also arise because the risks of Covid-19 do not fall equally. For example, different age groups, pregnant employees and those with various underlying conditions are more at risk from the disease. This means that a requirement to return to work especially when full social distancing is not practicable could amount to indirect discrimination, disability discrimination or trigger the duty to make reasonable adjustments. And there is also the practical difficulty employees may face in being asked to return to work when their children are still not back at school.
So, the best way to navigate these issues is to be flexible about homeworking, scrupulous in creating a Covid-secure workplace and to listen to reasonable individual concerns. Easier said than done!

Published in Hertfordshire Chamber of Commerce Inspire magazine, issue 39, July-August 2020.

If you need employment advice for your business, contact Richard Gvero, Joint Senior Partner and Head of Employment.

Please note the contents of this blog are given for information only and must not be relied upon. Legal advice should always be sought in relation to specific circumstances.

NLA article not to be reproduced