Life after Lockdown 3 (continued): additional issues for a return to the workplace

As the UK continues to wind its way cautiously through the Prime Minister’s Spring 2021 Roadmap to ease lockdown restrictions, and as the COVID-19 vaccination programme continues apace, businesses across the country are turning their attention to planning for a return to the office.

In this article, we take a look at a number of key considerations for employers considering their plans for a return to normality as COVID-19 restrictions on office work are lifted, including:

• Whether employees may be able to resist a return to the office on health and safety grounds.
• Whether so called “long COVID” could give rise to discrimination risk.
• How employers should be communicating with employees at this stage regarding a return to the office.

When can offices re-open?

By way of recap, subject to some minor variances in the government’s guidance, UK employees have been required to work from home where possible since March 2020. As a result, remote working has become the norm for most office workers during the COVID-19 pandemic.

Following the most recent lockdown, the Roadmap set out plans for the re-opening of workplaces on a sector-by-sector basis from 12 April 2021. However, it is likely that the order to work from home where possible will remain in place during until at least “step 4” of the Roadmap, i.e. no earlier than 21 June 2021.

Can employers simply require employees to return to the office at that point?

Once any work from home guidance has been lifted, the basic position is that all employees who are contractually obliged to work from the office can be required to do so. However, there will still be a number of issues and potential pitfalls for employers to work through before requiring employees to return.

Can employees refuse to return on health and safety grounds?

Notwithstanding the lifting of lockdown restrictions, it seems clear that COVID-19 will remain a societal issue for some time to come and this will continue to affect employers’ workplace obligations, particularly around health and safety.

As with businesses who have remained open throughout the pandemic, offices re-opening after lockdown will need to remain mindful of their general health and safety obligations, including:

• their statutory, common law and contractual duties in respect of health and safety, including to take reasonable care for the safety of their employees and provide a reasonably suitable working environment;
• their duties to consult with employees on health and safety matters. The Health and Safety Executive (“HSE”) has published helpful guidance setting out what employers need to do to ensure they are complying with the law in this area; and
• their duty to carry out risk assessments, again in accordance with HSE guidance.

Where employees nevertheless refuse to return to work on health and safety ground, they may have a remedy in respect of any resulting detriment or dismissal under sections 44 and 100 of the Employment Rights Act 1996 (“ERA”).

These sections protect employees by providing that any detriment is unlawful and any dismissal is automatically unfair where the reason for the detriment or dismissal relates to certain prescribed health and safety matters. Of most relevance in these circumstances are likely to be:

• sections 44(1)(d) and 100(4)(d) ERA, which cover detriment and dismissal for refusing to attend a place of work “in circumstances of danger which the employee reasonably believed to be serious and imminent”; and
• sections 44(1)(e) and 100(4)(e) ERA, which cover detriment and dismissal for taking “appropriate steps” to protect oneself in those circumstances.

Perhaps unhelpfully for employers, the protection applies to “reasonable belief” (ie. the belief must be objectively justified) irrespective of whether the employee was in fact in serious and imminent danger.

The application of this rule to COVID-19 cases was tested recently in the Employment Tribunal case of Rodgers v Leeds Laser Cutting Limited. Mr Rogers worked for Leeds Laser Cutting Limited (“LLCL”) as a laser operator. Following the first national lockdown in March 2020, LLCL put in place measures to address the risk of COVID-19 infection and required employees (including Mr Rogers) to attend work as normal. Mr Rogers refused to attend work and as a result was dismissed by LLCL.

The Tribunal found that Mr Rogers had very significant concerns about the COVID-19 pandemic. However, it did not find that he believed there were circumstances of serious and imminent danger within LLCL’s workplace. Rather, his concerns related to the serious and imminent danger of the COVID-19 pandemic in the world in general as opposed to anything specific to LLCL’s workplace. The Tribunal was also content that LLCL had put in place appropriate measures, meaning any such belief regarding serious and imminent danger would not have been reasonable. Furthermore, the action of remaining away from work entirely did not amount to “appropriate steps” under section 100(4)(e) ERA, as Mr Rogers accepted that the workplace was for the most part COVID-19 safe and so he should have instead raised complaints about any specific tasks that he considered gave rise to particular health and safety risks.

The Tribunal stated that sections 100(4)(d) and 100(4)(e) (and presumably, by extension, the equivalent provisions in sections 44(1)(d) and 44(1)(e)) could potentially apply to the dangers arising from the COVID-19 pandemic. However, they did not give any employee or worker the right to simply ‘down tools’ on the basis that the virus is circulating in society. Rather, the case suggests that it is each particular workplace’s response to the COVID-19 pandemic and the measures that are put in place to address any risks this poses that will determine whether any dismissal or detriment in connection with health and safety concerns is lawful or unlawful.

It should be noted that the above case was a first tier Employment Tribunal decision only and so is not binding on tribunals deciding future claims under this legislation.

Could “long COVID” give rise to disability discrimination risk for employers?

On 1 April 2021, the Office of National Statistics (“ONS”) published a report regarding the prevalence in the UK of ongoing symptoms following COVID-19, known as “long COVID”. The report found that over the four-week period ending 6 March 2021, an estimated 1.1 million people in private households in the UK reported experiencing extended COVID-19 symptoms persisting more than four weeks after their first suspected episode. Prevalence rates of long COVID were greatest in people aged 35 to 69 years, and in females.

For the purposes of UK discrimination law, disability is defined as a physical or mental impairment which has “a substantial and long-term adverse effect on [a person’s] ability to carry out normal day-to-day activities” (section 6(1) Equality Act 2010 (“EA”)).

On the basis of the ONS report and other studies into long COVID, it seems feasible that long COVID could amount to a disability as:

• Physical or mental impairment. While there is no universally agreed definition of long COVID, the ONS report states that it is generally understood to cover a broad range of symptoms, including fatigue, muscle pain and difficulty concentrating. A recent report by the Department of Social Care also identified symptoms including cognitive impairment or ‘brain fog’. All of these symptoms potentially meet the requirements of physical or mental impairment under the EA.
• Adverse effect on day-to-day activities. The ONS report estimates that self-reported long COVID symptoms were adversely affecting the day-to-day activities of 674,000 people in private households in the UK.
• Potentially “substantial”. The ONS report estimates of these 674,000 people, 96,000 of these individuals reported that their ability to undertake their day-to-day activities had been “limited a lot”.
• Potentially “long-term”. For the purpose of the EA, “long-term” means permanent or lasting (or expected to last) at least 12 months. The ONS report estimates that 70,000 of those with suspected long COVID first had (or suspected they had) COVID-19 at least one year previously, which suggests that long COVID is potentially sufficiently long-term to amount to a disability.

This means that employers may be required to make “reasonable adjustments” under the EA to help employees and job applicants with long COVID to overcome any substantial disadvantage arising as a result of their impairment, including in connection with a return to office life. This could include adjustments such as altering duties, working hours or place of work, or modifying policies, procedures or other working arrangements to accommodate their condition.

Employees with long COVID that amounts to a disability would also be protected from other acts of disability discrimination under the EA, including direct discrimination, discrimination arising from disability, indirect discrimination, harassment and victimisation.

Clearly, a full medical understanding of COVID-19 and its long-term effects is still developing and the issue of long COVID as a disability has not yet been tested in the courts. However, given the statistics, it does seem likely that the long term effects of COVID-19 could become a material challenge for employers as they come to require employees to return to the office and thereafter.

Communicating with the Workforce

Communicating with employees about re-opening at as early a stage as possible is likely to be critically important to ensuring a smooth transition back to the office. It is not necessary to wait until plans have been finalised – rather, it will be beneficial to communicate with employees regarding the contemplated plans and invite any feedback from employees in the run up to the return to the office.

In terms of particular issues to bear in mind:

• Give reasonable notice. Employees may have made alternative arrangements during extended remote working, for example in relation to living and childcare arrangements. Giving reasonable notice of a return to work may go a long way to avoiding practical and employee relations issues arising once the order is given to return.
• Workplace adjustments. In addition to the formal health and safety obligations referred to above, employers should communicate generally about any arrangements they are making to accommodate the return to work while concerns regarding COVID-19 continue. Adjustments might include staggering start and finish times to allow employees to avoid busy commutes and making additional sanitary facilities available.
• New working arrangements. Office reopening is likely to be a good time to consider the future of working arrangements. In many cases, businesses and staff have adapted well to remote working and there may be benefits to retaining some elements of home working (e.g. via a “hybrid” working model). We consider this is likely to become standard practice in many industries, and implementing any permanent changes to working arrangements at this stage is likely to reduce disruption for employees and staff attrition for employers who have adopted more flexible working arrangements.
• New policies. Employers may need to consider any new policies and procedures that will apply from re-opening, e.g. in relation to:
  • the ongoing effect of COVID-19 on the workplace, such as any new policies dealing with staff who display symptoms and changes to sickness absence and pay policies; and/or
  • new working arrangements, such as remote / hybrid working and information security policies.
• Employee mental health. While the lifting of restrictions is likely to be welcome, returning to the office may give rise to new mental health challenges, particularly while the COVID-19 pandemic and uncertainty over future employment persists. Employers should ensure that they make provision to protect employees’ mental health and keep them informed about the measures and support that is in place.

Conclusion

For the most part, the lifting of lockdown restrictions should be a positive development for both businesses and employees. However, as with any material change, the return to the office gives rise to a number of risk areas and it seems likely further issues will come to light as the government’s guidance on the return to office working is clarified over coming months.

As with many employment law issues, adopting an open and supportive approach to office reopening, including providing plenty of warning, is likely to mitigate many of the potential pitfalls employers face in this area. Employers would be well advised to adopt a flexible approach to their planning where possible, as experience suggests there could still be a few twists and turns in the Roadmap out of lockdown.