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Returning to the workplace

Posted On 12 May 2022 by Maeve Vickery
Returning to the workplace

The COVID-19 pandemic impacted everything - how we travel, how we socialise, how our children are educated and, of course, how we work. Previously, working from home was the exception rather than the rule although becoming more prevalent as technology improved and employers became more flexible.  

Along with social distancing and contact-free delivery, coronavirus made remote working the norm.  Not for everyone though, as some work could not be carried out remotely – for example the health and care services and also certain manufacturing processes, transport and logistics.   With COVID-related hospitalisations and deaths falling dramatically in recent months, there has been a move by employers to bring staff back into the workplace. 

Not all staff will be happy about this or make the change willingly.   So, how are employers approaching this and what should they do if individuals refuse to return to work?  You might think having a discussion and seeking to reach agreement on hybrid working or similar would be a good option – keeping productivity up and staff and employers happy and this has been the route many employers have taken.   Other employers have taken a different approach. It has been in the media that a large City law firm has told staff they can remain at home but only if they take a pay cut and give up prospects of career progression. 

I’d be interested to see what the Courts and Tribunals would make of challenges to that policy – I can see a number of issues around unilateral changes to terms and conditions of employment, variations to contract and implied terms and reasonable notice for any change.  Also issues of disability and indirect sex discrimination come to mind dependent how this policy was to be implemented. 

On the face of it, it appears a heavy handed and potentially problematic approach with potential negative practical effects on retention and morale.   Cases forged in the white hot heat of the pandemic are now coming through to appeal – whether they would have direct application as the pandemic wanes is questionable as they largely turn on the health and safety provisions under the Employment Rights Act 1996 which in summary mean that is the dismissal is automatically unfair if the reasons is because the employee leaves the workplace or refuses to return where they reasonably believe themselves or others to be in serious, imminent and unavoidable danger at work.  

The case of Rodgers v Leeds Laser Cutting has recently been considered by the Employment Appeal Tribunal. When the first lockdown came into effect in March 2020, Mr Rodgers, a laser operator, was told by his employer, Leeds Laser Cutting, that, due to the nature of his job, he would not be able to work remotely and would have to continue working on-site. Mr Rodgers did not want to do that and told his manager that he would not be coming into work “until the lockdown has eased”. A month later, Leeds Laser Cutting dismissed Mr Rodgers for failure to attend work. Mr Rodgers brought a claim for automatic unfair dismissal under s.100 of the Employment Rights Act 1996.   The Employment Appeal Tribunal upheld the decision of the Employment Tribunal that in the particular circumstances Mr Rodgers had been fairly dismissed. Leeds Laser Cutting were found to have taken sufficient steps to safeguard their workforce against the risk of infection and, in a large open warehouse setting, it would have been extremely easy for Mr Rodgers to socially distance himself from his colleagues.  Mr Rodgers had not raised any serious concerns about his safety at work and his reasons for remaining at home were more connected with concerns about the virus generally in society and not the conditions in the workplace.  

With the decline in number of infections and potential consequences, the overall picture has altered considerably since Mr Rodgers decided to stay at home.    Employees will find it a lot more difficult to argue on the basis of the health and safety provisions of the legislation that they are entitled to do so.  In practical terms there has been an increase in the number of flexible working requests under the statutory framework.

Whilst it is relatively easy for employers to lawfully refuse such requests under that statutory process, employers will be most likely to seek to reach agreement with staff who would prefer to continue to work from home where this is achievable, or whose circumstances mean it would be a reasonable adjustment to do so on the basis of a disability. Employers also need to be aware of other potential challenges on the basis of discrimination associated with a disability if there are carer responsibilities or indirect sex discrimination related to childcare responsibilities.  

This is a potentially complex area of law as well as being one that has a big impact on the lives of employees and their families and whilst there will often be good (and legally sustainable) reasons for requiring workplace attendance it makes sense for employers to look at all the potential factors at play in determining the best approach.  

If you have any queries or concerns in relation to returning to work, please do not hesitate to contact Maeve Vickery who heads our Commercial and Employment Team by email to maeve.vickery@pardoes.co.uk or telephone 01823 446210.  
Maeve has an enormous amount of experience in helping employers successfully tackle these potentially difficult issues as well as being an accredited workplace and employment mediator.