Following the further relaxing of the government’s lockdown restrictions and with most businesses now permitted to re-open (subject to compliance with social distancing rules), it is important for employers to know their rights and to keep up to date with their obligations towards their employees, particularly those working from home during the continuing Covid-19 pandemic. In this article we cover the current legal position and look at some of the trickier home working issues.
Employees who can work from home should continue to do so
On 24 June 2020, the government published new ‘social distancing after 4 July guidance’, which has applied since 4 July 2020. The current position remains that employees who can work from home should continue to do so. If there is already an established requirement to work from home where appropriate or where instructed to do so, then there is unlikely to be an issue in applying that obligation in an effort to stop the spread of Covid-19. If not, imposing home working would arguably amount to a variation of the employment contract requiring employee consent. Notwithstanding this, where an employee is faced with either being on Statutory Sick Pay or receiving no pay as an alternative, they are very likely to consent to working from home.
The clinically vulnerable should be allowed to continue to work from home
It is understood that the government may legislate to give employees the right to work or continue to work from home where they feel it is unsafe for them to return to work. This is likely to become even more pertinent as more employees return to work following the end of furlough leave on 31 October 2020 under the Coronavirus Job Retention Scheme. An employer should also give serious consideration to allowing those employees classed as clinically vulnerable to continue to work from home. The government’s ‘shielding guidance’ in both England and Wales already advises employers to allow clinically vulnerable individuals to be allowed to work from home until 1 August 2020 (in England) and 16 August 2020 (in Wales). This recommended period for shielding vulnerable individuals may of course be extended and is very likely to be extended should a second spike occur.
Employers have legal obligations to keep their workers safe
Employers should also be aware of their responsibilities for ensuring the health and safety of their workforce and their legal obligations under the Health and Safety at Work Act 1974, which states that an employer is responsible for an employee’s welfare, health and safety, “so far as is reasonably practicable”. This means that employers must conduct a suitable and sufficient risk assessment of the work activities carried out by their employees, including home workers, to identify hazards and assess the degree of risk arising from Covid-19.
Employers would be well advised to review their employment policies
Employers should review their employment policies, in particular those relating to performance management, disciplinary action and the handling of grievances to ensure they can be applied to homeworkers fairly and consistently.
Home workers with carer responsibilities have specific rights
Employers should also consider how they plan to handle home workers who have responsibilities for childcare or caring for elderly or sick relatives. Employers should also be aware of an employee’s statutory right to time off to care for a dependent, although this is unlikely to be used by an employee on a long-term basis as it unpaid leave.
For advice or further information on complying with your legal obligations following Covid-19, call Henry Doswell of Doswell Law Solicitors on 01233 722942. Alternatively, email Henry at henry@doswell-law.com
Disclaimer: Whilst every reasonable effort is made to make the information and commentary contained in this blog accurate and up to date, Henry Doswell takes no responsibility for its accuracy and correctness, or for any consequences of relying on it. The information and commentary in this blog does not constitute legal advice to any person on a specific case or matter. You are strongly advised to obtain specific, personal advice from a lawyer about your case or matter.