The government’s late Summer drive to get everyone back into city centres has gone into sharp reverse leaving many employers wondering what exactly the current rules are on working in the office. 

So here is the position in relation to office workers who work in businesses that have not been forced to close under local or national restrictions:

The Health Protection (Coronavirus, Restrictions) (No.2) (England) Regulations 2020 contains the rule that no more than six people can meet indoors. This is subject to a number of exceptions , one of which is “where the gathering is reasonably necessary for work purposes”.

As to what is “reasonably necessary” some guidance is provided by the government’s guidance on Working safely during coronavirus – Offices and Contact Centres

As has been widely publicised this sets out the “Objective: Office workers should work from home if they can” followed by “Employers should ensure workplaces are safe for anyone who cannot work from home.”

This is elaborated upon by the statements “office workers who can work effectively from home should do so over the winter” and “Where an employer, in consultation with their employee, judges that an employee can carry out their normal duties from home they should do so” and “Anyone ……..who cannot work from home should go to their place of work”.

The document then provides guidance both on Covid-safe offices and safe home working with an emphasis on consulting employees. This reflects the fact that employers have an overarching duty to take all reasonably practicable steps to safeguard their employees’ health and safety in both settings and also a duty to consult employees or representatives of employees about this.

Our take on this guidance is that it rests on two key considerations:

  • from an organisational viewpoint, can the work in question be done “effectively” at home? and
  • from the employee’s viewpoint can the work in question be done “effectively” at home?

After six months of home working, there is now a much better appreciation of what works and what does not work, and some issues are getting more difficult to overcome with the passage of time.

Organisational reasons for having employees in the office for at least some of the time include: training, supervision, regulatory compliance, operational efficiency, creativity and collaboration, bonding and relationship building.

Employee reasons for coming into the office include: mental health and wellbeing especially for employees who live alone or who have difficult home circumstances; cramped, noisy and inadequate home workspaces, inadequate equipment such as poor wifi and unsuitable desks and tables and noisy and demanding children.

These reasons for coming into the office have to be balanced against both the health and safety risks of coming into the office and the health and safety risks of working from home and since this involves a consideration of personal circumstances consultation with employees is very important as set out in the guidance.

HR departments may want to provide line managers with a brief with example questions they can ask about employee’s personal lives to help them scope the discussion. These conversations should be ongoing as employee circumstances may change and employers will need to adapt to this.

Our conclusion is that employers do have the ability to request or allow employees to work in the office where there is good reason to do so.

Contact us

If you have any questions about these issues in relation to your own organisation, please contact a member of the team or speak with your usual Fox Williams contact.

Articles and commentary by our legal experts on the impact of Covid-19 are all available here.

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