Coronavirus: return to home working

On Wednesday 8 December 2021, Boris Johnson announced that people in England should now return to working from home, if they can, from Monday 13 December 2021. This latest guidance is the government’s attempt to tackle a recent spike in cases and the emergence of the new Omicron variant. This means that England is now aligned with the three other home nations on their work from home guidance.

What are the latest guidelines in each of the home nations?

In England, updated guidance on the new measures is awaited but the Prime Minister has asked people to ‘work from home if [they] can’.

In Scotland, Nicola Sturgeon has stated that employers should ensure that all staff who can work from home are able to until at least the middle of January.

In Northern Ireland, the guidance states that more people working from home would help to reduce the risk of infection and have asked employers to support this ‘where possible’.

In Wales, the government has encouraged employers to let their employees work from home where possible.

What are an employer’s obligations towards staff working from home?

It is important to note that even though employees may not be physically present on office premises, employers still owe a duty to ensure, so far as is reasonably practicable, that the health, safety and welfare of employees is protected.

But what does that mean in practice?

First, employers should update and/or refresh any risk assessments to gauge the risks this may present to employees and what steps they can reasonably take to combat these risks.

This may prove difficult to implement remotely, but the Health and Safety Executive has published helpful guidance on managing home workers’ health and safety, available for England, Northern Ireland, Scotland and Wales.

Secondly, employers must implement the steps identified. For example, employers should ensure that employees are equipped to be able to adequately work from home. This may include providing equipment such as an office chair and desk and ensuring any necessary IT equipment is working properly and fit for purpose.

Once risks have been assessed and steps taken to address those risk have been identified, it is important to follow up on those steps. For example, checking that employees are using any special equipment provided.  In our experience, it is this third step which is often overlooked and can give rise to claims.

Linked to this, employers should ensure that there are adequate measures in place to ensure employees’ wellbeing and that employees are properly supported. The increase in working from home since the beginning of the pandemic has in some cases meant the blurring of lines between work and home life, which can lead to stress and burnout. Whilst many have embraced the flexibility that often comes with homeworking, for some it can feel like ‘sleeping in the office’ rather than ‘working from home’.

The Acas guidance on health, safety and wellbeing in relation to homeworking (available here) recommends, among other things, that those working at home might experience problems such as finding it harder to switch off from work, working longer hours and feeling pressure to work while ill (‘presenteeism’).

The guidance states that everyone should make sure that they:

• look after their mental and physical health, for eg by getting support and doing regular exercise
• take regular screen breaks and the rest breaks they are entitled to, and switch off their work equipment at the end of the working day; and
• manage their work-life balance by, for example, having clear start and finish times.

For more information on employee wellbeing in the context of the changes to working life triggered by the pandemic, please listen to our recent employment law podcast, available here.

The Acas guidance also recommends that employers and managers should talk together with their employees and:

• follow the law on working hours;
• encourage sharing of any problems employees may have;
• not make assumptions about what support might or might not be needed; and
• agree on what support may be needed, eg if an employee with a disability needs reasonable adjustments.

Conversely, any employers requiring staff to continue to attend the workplace, should ensure the following.

• An updated risk assessment is undertaken to assess whether or not employees should reasonably be required to attend the office, whether the role can be adequately undertaken from home and what risks are associated with attending at work.
• Employers should ensure the office/workplace is safe for employees to attend, as far as is reasonably practicable. Safety measures can include: minimising visitors; improving ventilation; using one-way systems and; additional cleaning.
• Employers should listen to employee concerns and take into account individual circumstances – for example, employees with particular vulnerabilities or those living with people who are vulnerable (although note that the duty to protect health and safety does not extend to those who live with employees). Remember that it is possible that concerns about safety at work in the context of the pandemic may be classed as ‘protected disclosures’ under whistleblowing legislation.

Contributors: Ciara Crosbie and Sarah Maddock

This publication is intended for general guidance and represents our understanding of the relevant law and practice as at 10 December 2021. Specific advice should be sought for specific cases. For more information see our terms & conditions.