The Government’s recent announcement that employees who cannot work from home should return to work has given rise to more questions than answers. Without doubt, the current situation is unprecedented. Many employees who cannot work from home may not, in reality, be able to return to work for a number of reasons. These may include childcare difficulties, transport concerns, medical limitations (e.g. a need to shield if vulnerable) as well as substantiated or unsubstantiated fears that the workplace will be unsafe.

Without specific legislation in place, employers, HR professionals and their advisers need to turn to existing legislative and contractual principles for answers.

In brief, where an employer is keen and able to reopen its business, it should, as first steps:

  • Identify and implement the necessary health and safety measures that will enable it to be “Covid-compliant”. Without these measures in place, the employer is likely to breach Health and Safety legislation and will not be able to insist on the return of the workforce. It will not be reasonable for an employer to expect its staff to provide health and safety equipment to facilitate Covid-compliant work – the onus is on the employer.
  • Identify the number and identity of employees which need to return. Now is also a good time to consider which employees have interchangeable skills which the business may need to utilise.
  • Identify and, if necessary, revise working patterns. For example, where an employer operates a shift pattern, it has been suggested that it should “bubble” together the same employees into a shift unit, to minimise the risk of exposure to a limited number of individuals. Staggered start and end times, alternate working days and location may also be needed (and may require employees’ agreement).
  • Speak to the workforce early to identify those employees who may have difficulty returning to work. Whereas under normal conditions an employer can insist on an employee being at work despite, say, childcare difficulties, this is unlikely to be the case for the foreseeable future. Disciplining or dismissing an employee who cannot be at work due to the need to look after young children who cannot attend school is likely to be regarded as unfair and, potentially, discriminatory.
  • If only part of the workforce is needed, tread carefully as to who is asked to return, to avoid the risk of discrimination (e.g. compelling young people to return before older employees may be discriminatory on grounds of age, albeit potentially justified in the current climate).
  • Finally, consider the need to update absence management procedures, e.g. for employees to get in touch regularly to update their availability for work and/or confirm why they may still not be able to attend.

In these uncertain times, going back to basic principles of employment law and good HR practice is essential. Both employers and employees are experiencing uncertain and unsettling times and getting things right at the onset will be beneficial in the long-term, and reduce the risk of future disputes.