Employers hoping for staff to return to offices in the near future face difficult legal questions, Head of Employment Joseph Lappin explains in this article. Not only do Covid-19 infection rates remain relatively high, but a sizeable proportion of the UK population is still not vaccinated.

As of 19 July, it has been up to employers to decide where their staff work. However, the minority of employers that seek to compel their employees back into communal workplaces will need to consider multiple issues.

Though the formal instruction to work from home has been dropped, the government has published guidance for employers and employees on returning to work. This suggests that employers should request a gradual return to the workplace for those staff who have been working from home.

Sensible employers will consult with their staff and work with those who do not want to return to communal workplaces to find solutions.


Requirements for employers

There is still a legal duty on employers to protect the health and safety of their staff. In the context of coronavirus, employers must identify the risks posed in the workplace. This isn’t simply a box-ticking exercise: employers must identify threats posed by the virus as part of a detailed risk assessment and put in place appropriate safety measures for staff.

Each workplace will require different measures. Safety precautions in a city centre office space will differ from those needed on a building site. Government guidance includes a range of measures for employers to implement, including adequate ventilation systems and regular cleaning of workplaces.

It is essential that employers make their workplaces safe. Employees with a reasonable belief that their workplace poses a real and imminent safety risk receive protection under employment laws. Employees citing genuine safety concerns must not be subjected to a detriment or be dismissed if they refuse to attend the workplace.

As vaccination numbers increase, and if employers have invested resources, time, and effort to make their workplaces Covid secure in line with government guidance, these potential arguments may become more difficult to sustain. However, each complaint will turn on its facts.


Incentives for staff

Many employees who have been working from home since the beginning of the pandemic will be reluctant to return to the workplace. Some will question whether it is necessary to return to the ‘old normal’ and go back to offices at all.

Employers who want staff to return to the office will need to identify ways to encourage and incentivise employees to come back. Potential options could include:

  • Assigning mentors to staff to help them deal with and overcome any legitimate worry and anxiety associated with a return to a communal workplace
  • Helping staff avoid the need for public transport with bike-to-work schemes
  • Workplace activities, for example, fitness or yoga classes
  • Investment in workspaces to upgrade and improve them


A return stand-off

Some employers might insist that, whether employees agree or not, their presence in the office is a necessary term of their employment contract, and failure to return could result in disciplinary action or even dismissal. Employers should do everything they can to try to avoid such disagreements arising. These are unprecedented times, and most employee concerns will be genuine. Therefore, sensible employers will consult with their staff to understand why somebody does not want to return to work and collaborate with their staff to find solutions.


Vaccine policies

Different businesses will adopt different approaches to a ‘no jab no return’ policy. For example, employers operating in the hospitality or healthcare sector will likely hold different views on the no jab, no job concept than those operating in professional and financial services. Care home staff will need to be vaccinated from 11 November.

An employer cannot compel their staff to be vaccinated if they do not wish to be. However, employers might be able to insist that employees can only return to the workplace if they have been fully vaccinated.

Employers that implement a no jab, no job policy will need to grapple with various complicated legal and non-legal issues. Staff might refuse a vaccine for several reasons, including on grounds of religion, philosophical belief or health. Would a restrictive policy be discriminatory?

Could employees who refuse the jab continue to work from home for an extended period? Could an employee who refuses the jab have their duties amended temporarily to avoid them coming into contact with others? How will all this data be recorded and used by employers? What effect will any policy have on staff morale? Could less onerous policies be implemented, by requiring staff to undertake regular testing, for example?

Employers will adopt different arrangements when it comes to vaccination. Sensible employers will engage with their staff and listen to any reasons for refusing the vaccine before taking the arbitrary decision to prohibit any employees who have not had a jab from returning to work.

A version of this article originally appeared in Personnel Today and People in Law.


Potential legal action against companies

Charlie Thompson, a partner in our Employment team, predicted legal action against companies that don’t consider their vaccine policy carefully enough.

In an article in The Independent, Charlie comments;

“If you’re not able to go back to your existing job, or you’re denied a job, and the employer’s justification [for vaccination] doesn’t stack up, then I can see legal claims,” he said.

Read the article here.




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