Top 4 mistakes to avoid when getting reluctant staff back to the workplace

Since the start of the pandemic many employees have been working from home either mainly or exclusively for almost 2 years.  Some will have altered their lifestyle on this basis, so may be reluctant to go back to commuting to work each day.  Others may still have concerns about coming back into the workplace whilst Covid cases remain very high.

Either way, employers are likely to face some resistance from certain staff members who are being required to come back to the office.  What are the top mistakes to avoid in dealing with getting reluctant staff back to work?   We take a look at some key areas of risk.

1. Not carrying out a health & safety risk assessment and/or not communicating this to staff – the legal position is that all employers must carry out a risk assessment and that includes the risks associated with Covid 19.  Further, employers must take reasonably practicable steps to manage any such risks.   Remember that staff with disabilities may also require reasonable adjustments to be made.   Whilst complying with this legal obligation is an essential step for employers to take, sharing the results of the risk assessment with staff should give them confidence that their employer is taking Covid risks seriously and taking steps to manage any risks.  It also mitigates against arguments raised by staff that the workplace may not be safe.  If staff do raise concerns, the company will be in a far better position to answer the same with a robust risk assessment having been carried out.

2. Not updating the place of work wording in employment contracts – most employers have contracts that still say the normal place of work is the office. This is good news if you want people to return to the workplace full time.  That said, employees can gain an implied right to work from home if you do not take action to clarify now where the actual place of work is, particularly now that there is no government guidance to work from home.  Each day that passes with staff working under a hybrid/working from home arrangement is an implied acceptance by the employer that working from home is fine.  In this regard, any contractual office-based place of work clause is being eroded daily to become a working from home clause by custom and practice or an implied contractual right.  This means that staff may acquire a contractual right to work from home, with no express right to vary and which employers will not be able to change without agreement.  We can help fix this position for you by getting the right contractual wording in place.

3. Delaying deciding on your working model and not having the right policies in place – staff will be expecting to hear whether they are being asked to come back to the workplace. Some may take the initiative and make flexible working requests.  Others may approach the employer with their concerns about returning.  If you have not yet decided what you expect of staff, this will make it very difficult to know how to respond to these requests/concerns.  Take these decisions now and communicate them clearly to your staff.  The business will be better for it.  You may also want to invite feedback from staff about the working model to make them feel involved. This should reassure them and encourage their buy in to the arrangements.

• Further, if you are looking for your workforce to continue working from home for the foreseeable future then having a homeworking policy in place would be appropriate.  Whereas if a hybrid working system (i.e. some time at home/some time in the office) is favoured, a hybrid working policy would be applicable.  Importantly, we highly recommend that you retain the right to revoke the arrangements in the future if they aren’t working out.  It goes without saying that your policies and your contracts of employment need to work well together and not contradict each other.  Again, we can help you get policies in place and make sure that these work with your contracts.

4. Not listening to staff concerns – as mentioned above, staff may have concerns about returning to work, for various differing reasons, all of which will be personal to them. We advise dealing with these issues on a case by case basis.  Ignoring these concerns will be risky as staff could be blowing the whistle if they are raising points relating to health and safety.

• If a worker or employee suffers a detriment or is dismissed for raising concerns you may find yourself on the wrong end of a claim for automatic unfair dismissal and/or whistleblowing, which has no upper limit on damages if the claim is successful.  On this point, there have been successful cases in the Employment Tribunals related to Covid 19.

• Also, think carefully about whether the employee may suffer from a disability under the Equality Act 2010 which may require the employer to make reasonable adjustments to the way they work.

 

But can you lawfully require your staff to return to the workplace?

Despite the above, if you have carried out and communicated a risk assessment, checked and if necessary corrected your contractual position, listened to concerns and if there are no other issues then there should be no reason why you cannot require your staff to come back to the workplace.  A refusal to return may be classed as an unauthorised absence and therefore a disciplinary matter.  We would advise you to take bespoke advice before starting a disciplinary process or deciding to dismiss someone in these circumstances, as there could be some serious risks at play.

Avoiding the above mistakes now will help you have a happier and more engaged workforce, allow the business to thrive and protect it from potentially expensive legal claims.

Bespoke consultation / free employment law webinars

If you require advice on any of the above, want assistance with implementing a particular policy or strategy, or have any questions, please feel free to get in touch.  We would be delighted to provide you with a bespoke consultation on your options and a tailored plan to benefit your business.

In addition to our free employment law bulletins, we also run free webinars covering a wide range of employment law topics.  Please email julie.field@joneschase.com if you would like to be included on our webinar mailing list.