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The Government’s ‘Plan B’ measures come to an end this week, and from this Thursday (27th January) we’re no longer legally required to wear masks on public transport and in shops, or produce vaccine certificates for certain indoor venues. Crucially for workers, it means that working from home is now subject to employers’ discretion, rather than a legal requirement.

After nearly three years of rules and restrictions, this marks another significant step towards recovery from the Coronavirus pandemic, and though the virus is still widespread, the ending of Plan B rules hints at a future where we live side-by-side with Covid-19 in much the same way we do with seasonal flu and colds.

For some, the return to normality (again), will be gladly welcomed.  It’s an opportunity to reconnect with colleagues, share creative space, and for young talent entering the workforce, the chance to experience the benefits of working alongside experienced colleagues as they begin their careers.

However, employers must not forget that this will be a time of immense anxiety for many of their employees and they may meet resistance, stress and struggles as they try and regenerate office life.

Our Legal Assistance Helpline is still receiving calls relating to employees who are unable or unwilling to return to the office and it’s clear that for many employers there is lingering uncertainty over their rights and responsibilities in this unusual situation.

A question of contract

For any employer, the contract is the starting point when it comes to enforcing any kind of return to the office. Most contracts state a usual place of work, and this will have been agreed with the employee on commencement of their employment.

In normal circumstances any material change to a contract (such as place of work) will be drafted and signed, but uncertainty of events during the past year have made this impractical.

At the start of the pandemic there was considerable focus on Furlough and amending contracts to reflect the legal implications and requirements. Those fortunate enough to be able to work from home were generally allowed to simply do so, and in normal circumstances there would have been a change to the contract as a result. However, in the case of the pandemic, businesses had to follow the law and this change was never put into writing and became ‘custom and practise’ as this unofficial aspect has become the norm.

We are now getting calls from employers who have employees who refuse to return to the office whether through ill health, or personal choice, and we’d always advise our customers to check their contract first.  Employees could challenge this and argue by ‘custom and practise’ that they cannot be forced to return as they have been doing their job well from home for the past eighteen months; however, employers are in a strong position to enforce the original contract and any place of work requirements contained within.  It would be fair to assume that no one intended the changes, brought about by the pandemic to be permanent, and therefore any ‘custom and practise’ argument would inevitably be doomed to fail, at least for now.

However, there are many considerations for businesses returning to the office, and individuals must weigh-up a huge number of factors:

  • Is it economically and financially viable?
  • Are employees more productive in the office or home?
  • What are competitors and peers doing?
  • Do workers have the equipment they need to continue working from home or will they need to upgrade equipment and furniture if the change becomes permanent?
  • What does the business need to do to get the best out of its employees?
  • What are the health, wellbeing, and safety implications?

Part of this exercise will be to consult with employees to assess what people want, what people need and whether there has been any change in individual or business requirements over the past eighteen months.

Communication and certainty is key

Once a business has assessed this myriad of factors and decided on its position, communication becomes fundamental. Employees must be given clear guidance on any new policies or procedures put in place and understand any changes to their objectives and expectations of them going forward.

We’re hearing about more companies now encouraging staff to return to the office on a set number of days, even full-time, but any employers who fail to act and create certainty about expectations on their teams will certainly put themselves more at risk of ‘custom and practise’ type arguments. As always with these arguments the longer the status quo continues the more likely it appears a variation was intended as permanent.  Now really is the time for employers to act.

Michael Jenkins, Head of Legal Advice, Arc Legal Assistance

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