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Nick Carter

Commercial property

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David Thomas

Occupier Advisory, Vail Williams LLP

As lockdown eases and more businesses consider bringing employees back into offices, there are some key issues that business owners need to be mindful of. Nick Carter (Head of Commercial Property) along with David Thomas (Occupier Advisory) at Vail Williams LLP take us through some of the key topics including employment issues and the pros and cons of working from home.  

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Returning to the office – can you justify it? 

When leaders are deciding how much business space they need, they must decide how many people will be using the space and how to manage flexible working.

Although there are different challenges in various business sectors, we are hearing shared themes about the pros and cons of working from home. The main disadvantages being a sense of isolation, no demarcation between home life and working life, a lack of collaboration and spontaneity and difficulties with onboarding, training and supervision of staff. 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. Different people, in different circumstances, have different needs, so future arrangements need to reflect that one size does not fit all. 

During the first lockdown there was a reported short-term spike in productivity as employees quickly adapted to working from home and relinquishing the commute. Over time however this has transcended into fatigue, loss of culture, and stifled innovation.

The challenge for many businesses is that, as policies are devised to bring people back to the office, even part time, some 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. Some have recently moved to accommodation further away from the office making commuting difficult. Some simply cannot work effectively at home because of a lack of suitable space or other personal circumstances and some may just quite like working from home. 

As businesses devise future policies which may include mandatory time in the office there are legal as well as practical issues to consider.

Could demanding that employees must work in the office be discriminatory, especially where employees have worked from home successfully for the last eleven months? 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, 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 and as such have the right not to be discriminated against because of something arising out of their disability (for instance an inability to attend the office). 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.

How might an employer objectively justify a requirement to work in the office? 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. Offering extended trial periods of working solely from home could help in gathering the necessary evidence to demonstrate how efficient home working is in performing necessary tasks. 

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 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.

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.

Self-Isolating - New Regulations (England only)

This is a dynamic situation and laws are changing frequently. Rules came into force in England in October under the Health Protection (Coronavirus Restrictions) (Self-Isolation) (England) Regulation 2020. These regulations cover many obligations which individuals must comply with, including periods of self-isolation and certain notification requirements. 

  • Importantly for businesses, there is now a requirement for all employees (and agency workers) to notify their employer if they are required to self-isolate for any period which they are due to work. This includes those who have tested positive or live in the same household as someone who has tested positive.
  • Once the employer is aware of the employee’s (or agency worker’s) requirement to self-isolate, it will be an offence for the employer to “knowingly allow” the individual to attend any place other than where they are self-isolating. Any employer in breach of this may face fines starting at £1,000. The employee (or agency worker) may also face a fine starting at £1,000 if they fail to inform the business that they are required to self-isolate. 
  • Businesses should ensure that employees are aware of their obligation to tell them if they or someone in their household is required to self-isolate. Clear records should be kept of employees who are required to self-isolate, including the date they notify you and the dates when they should not be permitted to attend work or carry out any work outside of the place they are isolating. 

How can we go back to better?

The world of work has experienced such a paradigm shift in 2020, that any attempt to revert back to what it was, would be foolish without first pausing for thought about what your future office and way of working should look like.

There have been hundreds of articles written about this very thing, discussing everything from ‘hub and spoke’ property strategies and offices environments as a panacea for collaboration, to how we won’t drive anywhere anymore because of Zoom or Teams, and can just up sticks and move to Cornwall since we don’t need to go into the office anymore. 

But let’s take a step back for a moment.

The reality is that many people can’t move. Their partner may have a job which doesn’t allow agility, or they may have children at school. And nobody collaborates for all 7.5 hours of a working day.

Video conferencing makes us stressed and fatigued, and if you could just move anywhere, what this essentially means is that anyone in the world could do your job, for lower wages.

In the new normal, the office needs to change – the one size fits all open plan banks of homogeneous desks with a kitchen and some meeting rooms, is no longer fit for purpose. 

If you are adopting a flexible working approach of, say, three days in the office and two days at home, the likelihood is that you could probably reduce the space you occupy by around 30%, subject to this being post social distancing and you can underlet or have a lease event or break clause. 

We need to keep company culture and social interaction alive, by giving people a reason to come to the office, by providing a better experience than employees would have at home - regardless of whether they have a dedicated study/workspace or are working from their dining table. 

But this is not just about enhancing spaces for collaboration, and client meetings. Work also needs to be done to create an environment in the office to support the tasks that work ‘better’ at home. Quiet spaces for concentration work, booths for video conferencing, greater use of soft furnishings and shared tables. 

Before the pandemic, we already experienced noisy interruptions which disrupted our working flow. Now, Teams or Zoom calls in open plan spaces take this disruption to a whole new level, making the requirement for acoustic privacy a must. 

With this in mind, we need to create new office environments that give employees the best experience to support whatever tasks are being carried out, as well as the flexibility to fulfil the mantra of “work is something you do, not somewhere you go”. 

What we absolutely must not do, is go back to the pre-Covid-19 office, even if we do assume that things will return to the way they were pre-vaccine. 

Consistent with our policy when giving comment and advice on a non-specific basis, we cannot assume legal responsibility for the accuracy of any particular statement. In the case of specific problems we recommend that professional advice be sought.


Get in touch

If you have any questions relating to this article or have any commercial property issues you would like to discuss, please contact Nick Carter on [email protected]

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