Freedom Day – Top Tips for Employers

Posted on: July 16th, 2021

On 19th July 2021 (‘Freedom Day’), all Covid-19 restrictions are due to end in England, including the ‘work from home if possible’ guidance, mandatory mask-wearing and social distancing.

As the return to the office is fast approaching, understandably employers are unsure of the measures they can continue to take once the current health and safety measures are lifted by law.

We hope this article assists in answering some of the more pressing questions you may have and provides some top-tips for managing a return to the workplace.

Can we force employees to return to the office?

Provided the employee’s contract of employment states that their place of work is your office location and provided that you have determined the workplace to be safe, you can ask them to return to the workplace on Freedom Day.

With the ‘work from home if possible’ guidance being lifted, provided you have carried out an effective risk assessment and determined that your workplace is safe to return to, employees have limited scope to refuse to return as their normal workplace would revert back to the office.

The onus will be on the employer to ensure this is communicated to the employees concerned alongside the reasons why a return to the office is now required.

Of course, a highly likely result of requiring employees to come back to the office is that many may try to formalise their work from home arrangement on a more permanent basis by submitting a flexible working request. Employers are not obliged to accept every application they receive but should consider these requests on a case-by-case basis based on how well the work from home model has been working with that particular individual.

For more information on flexible working requests following the return to the office, please see our article here.

Can we keep our current health and safety measures in place, such as mask wearing, testing and social distancing?

Whilst the government has changed the law around wearing a mandatory face covering and social distancing, this has not removed the responsibility on employers to provide a safe place of work for all staff and other third parties visiting their premises.

As a result, employers should continue to keep their risk assessments under review to ascertain what safety measures are still required based on the vulnerability of your workforce, the people you are dealing with and other factors such as the space you have available for employees to work in. Indeed it may be prudent to consider a phased return to the office, or consider having different employees in on different days of the week initially to ensure social distancing is maintained.

Employers will need to be mindful that whilst some employees may be excited to return to the office, others may be genuinely anxious about returning and the possibility of contracting the virus at work. By having appropriate safety measures in place, you should help to alleviate fears some employees may legitimately have. Needless to say, it is always important to communicate with your employees and work with them to overcome any concerns they may have around returning to the office to try to come to a solution that benefits all involved.

What about employees that believe a return to the office would put them in serious and imminent danger?

The law in this area still remains the same, however as the Government have told people it is safe to return to the workplace it could potentially make it harder for an employee to refuse to come back on the basis they believe it is unsafe to return.

The case law in this area in relation to the impacts of Covid-19 specifically is still developing, but it is one that will turn on the facts of each particular case. Indeed, keeping appropriate safety measures in place for a period of time when the office re-opens, whilst keeping the ongoing impact of the virus under review, will arguably make it more difficult for employees to say that they believe they are in serious and imminent danger where you are going above and beyond requirements implemented by law. However, again, ensuring you have communicated the measures taken to staff is key.

Notwithstanding the above, if employees have legitimate concerns as a result of something specific to them (for example travelling on public transport during rush hour, living with extremely vulnerable family or being more vulnerable themselves) it will likely be sensible to consider whether alternative arrangements can be found such as whether the individual concerned is able to continue to work from home or perhaps work alternative hours in order to be able to travel at times where transportation may be less busy.

Conclusion

Whilst the headline message that restrictions are lifting is clear much of the detail that sits below this and how it applies in each and every workplace remains a matter that employers will need to assess and judge for themselves based on their own circumstances.

Once this has been done and is evidenced, the stance adopted should be communicated to employees and it is recommended that you set out your position in your company policy which can be reviewed and updated in line with any new guidance released.

Of course, those who are really ahead of the game will have ensured, so far as possible, that staff have been involved in developing what the future looks like so it comes as no surprise.

If you need any further advice on the return to the office, or would like some general employment advice, please get in touch with our Employment team who will be happy to help.

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