What does the latest government announcement mean for employers and staff?

On 22 September 2020, Boris Johnson announced tighter restrictions in England (with similar measures being taken across the UK) to counter the recent increase in COVID-19 cases, so that once again employees are being encouraged to work from home.

What is changing?

As well as the restrictions on pubs, bars and restaurants opening times and the requirement for shop workers and waiters to wear face masks at work, the government has also changed its stance on returning to work and is now advising that people should work from home wherever possible.

What does this mean for employers?

In two words, more uncertainty. Just as employers and employees were starting to adjust to returning to workplaces, we have yet another new normal to get used to - and it looks like this one is here to stay, at least for the next six months.

When COVID-19 first arose, few employers would have anticipated working arrangements changing so seismically. Over recent weeks many employers have had to manage the slow and gradual re-opening of workplaces. For many it has proven far more difficult to get employees back than it was to get them out when employees were first asked to work from home. Tuesday’s announcement is almost a step back in time - it will be interesting to see how many employers adhere to the latest government request and what employee reaction will be particularly where an employer does not ask them to work from home when they could do so. It is unclear as to whether the extension of the penalty regime will extend to employers who fail to encourage employees to work from home where they can.

Should employees be working from home?

In a word, yes, if they can.

However, whether they can is likely to be open to interpretation with different approaches seen across different sectors. As mentioned above, it will be interesting to see what the employer reaction is to this latest government guidance. With many employers either ignoring the initial request entirely or bringing employees back before the guidance changed in order to resurrect and/or save their businesses, will employer and employee reaction be different second time around? The impact of being cut off from a mental health perspective, not to mention the need to supervise and develop staff, will all be factors for employers to consider as to whether they now try and stop employees returning to the workplace. Many employers are likely to look to see what others do particularly in their own sector. For many it will be a careful juggling act of balancing potential damage to reputation vs economic drivers. At least this time around employers can use their experience from the previous lockdown to inform and justify their approach.

Can an employee be asked to go into work?

In one word, yes, if it is not possible for them to work from home, for example because they do not have the requisite equipment, because the nature of the work they perform just cannot be done at home or simply because there is a need for supervision / team collaboration.

In more than one word… an employer can always ask. The government guidance does make clear that if an employer has made the workplace COVID-19-secure then employees can continue to go into work if their job requires it. However, as has been the case throughout this process, employee reaction is likely to vary from one person to another, depending on their own particular circumstances. Employers will need to be aware of how difficult it is to manage employees who refuse to come into work. There may be genuine reasons why the employee is reluctant to return to the workplace, whether that is because of concerns about travelling on public transport, the fact they have an underlying health condition and therefore are at greater risk if they contract COVID-19 or because of on-going childcare issues, particularly now we are seeing more year groups being sent home from school to self-isolate. Get it wrong and employers are likely to be exposed to costly discrimination claims - the last thing employers need.

One thing is for certain - HR teams and employment lawyers are likely to continue to be busy…for the next six months at least.