Returning to the office can you justify it?

As we all start to recover from the Covid-19 pandemic, businesses are beginning to awaken from their slumber, and the gears are starting to whir once more in offices that have, for the past four months, remained eerily silent.

This pandemic has brought with it a ‘new normal’, where life has changed in almost unimaginable ways overnight.  However, alongside the difficulties of lockdown there are positives, and one of these might be the almost cataclysmic shift to remote working.  What was once considered a ‘lifestyle’ benefit, embraced by only the most modern and forward thinking of workplaces, has now become a workforce necessity that has, without question or compromise, had to be embraced by all.

So, as the UK moves out of lockdown, is this the beginning or the end of working from home?

Many businesses I work with have seen an unexpected boost in productivity, noting that, rather than seeing a decline in working hours, the opposite is in fact true – employees who have worked from home during lockdown have actually increased the amount of time spent engaged in work.  It also means fewer overheads, improving the bottom line.  The virtual meeting has resulted in a realisation that people don’t have to be physically present to do business – they just need to be on the other end of a computer screen. These businesses may well decide that remote working is no longer a short-term fix, but is now more of a long term solution.

However, some businesses are moving towards a return to the ‘old normal’. Driven by customer and business demand, they need employees in the office to properly function. There can be many reasons for this – perhaps it’s the need for supervision or monitoring of staff, or it’s simply a desire to maintain the business culture.  In relation to the latter point, while meetings can be conducted remotely thanks to the likes of Zoom, Teams and other conferencing facilities, there is still no real replacement for good old face to face contact.  The ability to bounce ideas off colleagues, work closely as a team, and have day to day interaction is a fundamental part of working collaboratively.  Without it, productivity could suffer.

The challenge for these businesses is that, as the return to the office and the ‘old normal’ looms, they are finding that many of their employees are reluctant to do so. There may be a variety of reasons for this. It could be a genuine fear of leaving the house or of using public transport. They may have a health condition placing them at higher risk, or are living with someone who does.  Or, they may just quite like working from home.

So, to what extent can a business facing a reluctant workforce require employees to attend the office?  From 1 August, Government advice has changed.  Employers now have more discretion to require employees to return to their workplace provided it is safe to do so, and they have adequately consulted with employees about a return. If an employee is contractually obliged to work from a particular office or location, and the employer has followed government guidance and ensured that the workplace is safe, then from this date onwards requiring an employee to return to the office would, in most cases, be a reasonable request which, if unreasonably refused, would be a potential disciplinary matter.

But what if an employee’s refusal is not unreasonable?  Employees falling into this category would be those with legitimate and genuine concerns about their safety, those with childcare issues, and those with chronic health conditions (or those caring for someone with a chronic health condition).

This question doesn’t just apply to recovery from the current lockdown, but extends well beyond this into the future.  For instance, how will a prolonged period of successfully working from home during the pandemic impact on an employer’s ability to make future decisions about flexible working requests, or reasonable adjustments for disabled employees?

When considering requests to work from home, employers should be mindful of their obligations under the Equality Act 2010 and of an employee’s right to request flexible working.

All employees who have at least 26 weeks’ continuous employment have the right to make a formal request for flexible working, which could include working from home. Employers must carefully consider such requests, and can only reject a request for one of eight specified business reasons.

However, a female employee could argue that, even if a flexible work request is rejected for one of those eight business reasons, the rejection is indirectly discriminatory on the grounds of her sex owing to a women’s role as the primary child carer.

In addition, employees suffering from a long term health condition may be considered disabled under the Equality Act. If so, they will (in addition to other things) have the right not to be discriminated against because of something arising out of their disability (for instance an inability to attend the office), and to reasonable adjustments being made to their employment in order to remove any disadvantage they may suffer. This may be particularly pertinent for those suffering from depression and anxiety – many people with these conditions have been particularly affected by the pandemic, and are anxious about the prospect of returning to the office, or even leaving their home.

For certain types of discrimination, in order to show that a requirement for all employees to attend the office isn’t discriminatory, employers may have to objectively justify it. Further, in order for an adjustment to be ‘reasonable’ it must effectively remove the disadvantage suffered by the employee, and be reasonable in all the circumstances.

How might an employer objectively justify a requirement to work in the office? Employers must first identify a ‘legitimate aim’ they are trying to achieve. This could be, for instance, the need to ensure employees are appropriately supervised or to facilitate team collaboration. Employers must then show that returning to the office is both reasonable and necessary to achieve this aim, and that there is no other less discriminatory way of achieving it. If employers are not able to demonstrate this, then the requirement to work from the office may be discriminatory.

In circumstances where employees have worked from home successfully for the last four months, it may be much harder for employers to demonstrate that working from the office is both reasonable and necessary. Employees will be keen to point this out, and employers may have an uphill struggle to demonstrate that working from home has a negative impact on the business when the statistics say otherwise.

However, employers faced with such requests (as well as employees) should remember that, by its nature, lockdown has been an extraordinary event. The circumstances of the last four months have been unique and may not properly represent normal business operations. Therefore, statistics gathered on the effectiveness of homeworking during this period may not be a true reflection of reality.

While justification may indeed require more thought than it did before, it does not mean that requiring an employee to work from home can’t be justified. In order to more accurately assess whether working from home is viable for a particular employee, employers could consider operating a formal trial period under ‘normal’ business conditions. If, during that trial period, there is evidence that working from home will not work, then the employer will be in a much better position to justify working from the office.

Whichever ‘camp’ your business falls into, one thing that is for certain is that the workplace won’t be quite the same for the foreseeable future. Navigating tricky employment issues is just one of many challenges businesses will face over the months to come.