Post COVID Employment Q&A

So can an employer force its employees to return to the office?

That’s a really good question Jeremy and it’s one that I’m finding myself answering a lot for my employer clients these days, and I advised them this, we are all aware that there will be a further easing of the restrictions however government guidance is still to work from home where possible. My advice my clients that require employees to return to the office is firstly to insure on a case-by-case time is absolutely necessary and secondly to ensure that there are appropriate policies and procedures in respect of covid-19 in place to ensure that there is a safe as possible working environment for those employees to return to. Another question that I am finding myself being asked is what about those employees that raise concerns with regard to returning to the office due to covid-19? My advice there is to meet with those employees and listen to their concerns and where possible try and allay their fears so that they feel able to return to the office safely. Those employers that have disabled employees, they may need to make further reasonable adjustments to allow the safe return of those employees to the office should their presence there be required?

Those are some really good points, so thank you for that.

So the next question is what’s the potential pitfalls with hybrid working and increased working from home arrangements?

I’ve certainly heard a lot of buzz around hybrid working the advice that I would give there is that if employees who are considering hybrid working arrangements they need to be aware that in some circumstances this could lead to risk of indirect discrimination claims for example, such as race or gender, so my advice is to carry out risk assessments to establish one of the impacts of hybrid working models and two give any particular groups of employees who are most risk disadvantaged by this hybrid policy. You will have to accept as an employer that there is no one-size-fits-all and therefore each employee needs to ensure that the policies and risk assessments are reviewed regularly and communicated clearly to all members of staff.

Those are definitely some important points to consider.

So next, will lawyers need to update the employment documentation and or policies?

Whilst I recommended that it is important for every business to ensure that its contracts are kept up-to-date and therefore reviewed on a regular basis together with the policies. With regard to considering hybrid working I would recommend that employers have a really good hybrid policy that is reviewed on a regular basis and amended if necessary rather than rushing out to permanently change contracts at this stage. This is due to the fact that we’re not completely certain what the labour market is going to look like moving forward.

Yes this is very true. So our next question is:

Can an unvaccinated employee be prevented from attending the company’s offices?

That is cause for concern for a number of my clients at the moment. Can you prevent an unvaccinated employee from returning to the office? This would appear to be inconsistent with the lifting of the restriction and encouraging people to return to the office for at least some of the time. We need to bear in mind that even though the restrictions are being lifted, there will be a number of individuals and groups that will still not have been vaccinated by this stage and therefore the prevention of employees who were unvaccinated from returning to work by the employers may lead to discrimination claims that will be based on disability, age, religious or even philosophical beliefs. If we look at the ACAS guidance ACAS states that employers should support staff in getting the vaccine by for example allowing paid leave for those members of staff for attending appointments to be vaccinated. If we look further at the Equality and human rights commission they’ve said that a policy of compulsory vaccinations is unlikely to be lawful. Therefore my advice would be careful consideration is needed in these circumstances.

I can see that there would be lots of things to consider there.

So next:

What are the alternatives for employers where employee vaccination cannot be achieved?

Employers have an implied duty to take reasonable care of the health and safety of their employees and also to take reasonable steps to provide a safe working place. Accordingly establishing a covid secure workplace is vital for employers.

What is an employee refuses to return office until they are vaccinated? Could there be other reasons?

Not being vaccinated may only be one of several reasons why an employee would be hesitant return to the office, for example they may be concerned that they won’t be safe getting public transport to come into the office or they may have other health concerns or indeed concerns for the health of those around them. This is why I’ve advised that it would be imperative for employers to ensure that requiring an employee to return to the office when they’re working safely and productively at home is really necessary.

So this naturally leads onto the next question which is:

Can an employer discipline or dismiss an employee who refuses to be vaccinated?

I would think that this would be unlikely for office workers. But whether or not an employer could dismiss an employee who refused to be vaccinated I would say would depend on whether or not the vaccination was necessary for the employee to carry out their role, for example those that work in care homes. If there is an employer in that situation I would advise them to seek legal advice before dismissing the employee.

Ok that’s some good advice.

So can an employer enforce a covid-19 testing regime?

Whilst I accept that testing does not carry a risk to employees in the way which vaccinating might there are still difficulties for employers requiring testing. Workplace testing in itself is difficult to put into place, there has been a movement towards home testing largely influenced by its introduction from schools when they reopened. Employers should consider encouraging employees to undertake home testing and to avoid attending the office should they test positive. However I believe that requiring employees to produce evidence of negative test results will have data protection implications and therefore unlikely to be justified. So I feel that employers should be putting their emphasis on implementing social distancing and other related measures to ensure a COVID secure working environment.

Okay, so can an employer request vaccination or testing information from its employees?

I believe that many employers will be keen to have records as to who and who’s not received a vaccination as well as records of any covid testing. However from a GDPR perspective this will create its own challenges as the mere fact that someone has or has not received the vaccine or any test results will constitute special category data concerning health. The information commissioner’s office has said that employers will need to have clear and compelling reason for processing vaccination status data and that this would also apply to test data. This may be satisfied though on the basis that employers are seeking to protect the well-being of their workforce and customers or clients. However employers will still have to show that the retention of such data was necessary as part of their steps it was taking in order to achieve a safe environment in other words why retain vaccination data if it’s not essential. In situations where it is justified for employers to hold that data they would need to ensure that data is not held any longer than is reasonably necessary and also that is held securely, as such employee privacy policies would need to be reviewed and updated accordingly.

So with all that being said:

Will employees be able to remove COVID secure measures 19th of July 2021?

I think this is unlikely and that COVID secure measures that will remain there for some time going forward, however as time goes on these measures may be reduced, it’s just a case of wait and see.

So in your opinion what do you think the future looks like?

I think the future looks like a flexible one. COVID-19 has had such a huge impact on the globe but with vaccinations and better understanding of the pandemic coming into play now I feel that there will be changes to covid-19 policies and practices in the future. It may not be in the immediate future but certainly it will change. With regards to returning to the office there are no doubt employees that will be very keen to return to the office as soon as possible and there are others who will remain hesitant and weary. I feel that it’s unlikely that pre March 2020 working patterns will ever return but I believe that the pandemic has taught us that hybrid working or working from home it is doable and as such his likely here to stay.

Thank you so much Annalie for taking the time to talk to us and answer those questions about employment we really appreciate it. If you or your business require specialist advice or assistance with reviewing employment contracts or policies, Kerseys Solicitors are here to help and I contact details are on the screen now, feel free to get in touch.

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