With a wealth of commentary available for employers (and their employees) about how to deal with employee anxiety surrounding a return to the workplace in the post-COVID world, little thought has been given to the challenges faced by employers whose employees want to return to the workplace, contrary to Government guidance.

During the first lockdown in March 2020, many employers who had to send employees home on short notice received requests from individuals wanting to return to the office – principally from those who relished the routine and relative stress-free atmosphere of the workplace.

Whilst applications had to be considered on a case by case basis (taking account of the nature of the employee's role, whether it could be performed from home and whether the employee had any medical reasons for the request), it was, relatively speaking, an easier decision to make. After all, suitable precautions could be taken to minimise infection in an office environment, requests were likely to be few and far between and it was only likely to be a short-term arrangement...

With the benefit of hindsight, an understanding that the current lockdown may go on for longer than initially anticipated, plus an awareness of the greater transmissibility of the new variant, can employers safely agree to such requests during the third lockdown?

2021 – New Year, new lockdown

It was the news no-one wanted to hear at the start of 2021 – the pre-Christmas optimism of the outcome of the vaccine trials was quickly dampened by the spread of the new COVID-19 variant and a third national lockdown. With schools closed and many employees still feeling the effects of the first lockdown, employers will now be faced with the very real problem of trying to support vast numbers of employees who are mentally and physically burnt out by the ongoing situation. Requests to return to the workplace may rise again, but caution should be taken when considering whether this is appropriate and blanket agreement certainly shouldn't be the first port of call. The Government's messaging for the moment is clear: You may only leave your home for work if you cannot reasonably work from home.

With no guarantees that the situation will have resolved by early summer, employers need to focus on measures that can be implemented longer-term, if required, to help employees manage the competing demands of home and work life whilst complying with the government guidance. Enforced home working affects individuals very differently. For some, it may offer a very welcome degree of flexibility previously unobtainable. For others, the requirement to share a workplace with housemates, children or their partner, or to effectively be a 'lone worker', can add a significant amount of stress and disruption.

Working from home and employee welfare

Given current Government guidance and the latest available data about the high transmission rate of the new variant of COVID-19, the starting point must be that those who are able to work from home, should, notwithstanding the challenges that may pose.

To that end, employers need to be mindful of the additional pressures placed on their workforce and consider embracing solutions that may include flexible working on a more long-term basis, encouraging employees to communicate more, and offering training in coping strategies that may assist with the mental load of balancing work and home.

Alternative options to alleviate employee concerns should be carefully explored before considering a return to the workplace. Some employers have been incredibly innovative in terms of what they can offer to give some relief to staff, including hiring entertainers and tutors to provide online sessions for children, encouraging staff to upload evidence of exercise and work towards group fitness goals, and counselling and support packages for employees. For some, the solutions may be far simpler – encouraging employees to 'buddy up' and share workloads to accommodate flexible working around home schooling demands for example, or even scheduling a daily/weekly virtual coffee break can make all the difference to those feeling isolated and overwhelmed.

It is important to remember that employers remain legally obliged under the Health and Safety at Work etc. Act 1974 (HSWA) to ensure, as far as reasonably practicable, the health, safety and welfare of their employees regardless of where they are physically working. When individuals are working at home, employers should certainly ensure their employees have a suitable working environment (a work station assessment can be completed remotely by employees to identify any particular risks) and have the equipment they need to work effectively. However, to effectively safeguard the welfare of their employees employers should also encourage staff to continue to take rest breaks and to prioritise their well-being to avoid inevitable (and significant) disruption caused by the longer-term effects of poor mental health resulting from the on-going pandemic.

Who 'cannot reasonably work from home'?

When alternative solutions have been exhausted, employers will need to consider whether a request to return to the workplace can (or should) be accommodated. Assuming that the employee's role can be performed from home, but the employee's clear preference is to return to the office, there are several risks and challenges that the employer must balance in reaching a decision about what is reasonable.

Employers first need to consider whether they could be under a legal duty to consider the request. For example, if an employee is suffering from a disability within the meaning of the Equality Act 2010, an employer is under a duty to consider making reasonable adjustments to an employee's working environment in order to remove any disadvantages suffered by the employee as a result of their disability. Mental health conditions could well fall within this definition if they are sufficiently long-term and serious. However, the duty only applies to adjustments that are 'reasonable' – could a request to work in the office be considered as such?

This will depend on two issues: (i) the seriousness of the employee's mental health condition – are they at serious risk of harm if they are not permitted to attend the office; and (ii) can the employer provide a safe place of work in the current climate so as to protect the health and safety of any employees who attend the workplace and effectively discharge their obligations under the HSWA?

If there is no specific legal duty, the employer should consider if granting the request would protect the welfare of the employee under their HSWA obligations and then weigh the risk to the employee in remaining at home against the risk of the employee attending the workplace where they are undoubtedly at higher risk of contracting COVID-19. Evidently, where the risk of returning to the workplace cannot be suitably mitigated or outweighs the potential risk to an employee's welfare from continuing to work from home (particularly if other resources are available to support the employee), then it would not be appropriate for the request to be granted.

It is strongly advised that any risk assessments that inform decision making regarding specific employees are documented in writing to evidence the process should an employer be challenged to justify their choice to allow employees access to the workplace during a strict national lockdown.

A Covid Secure workplace

Before any employees return to the workplace, employers should demonstrate working practices are objectively reasonable and evidence compliance with the COVID Secure guidelines by producing a carefully considered and specific COVID-19 risk assessment. This should identify essential vs non-essential activities and appropriate risk mitigation measures which could include restricting movement around the office, minimising touch-points, increasing frequency of cleaning, and providing PPE. Of course, the principle mitigation measures under current Government guidance involve implementing social distancing and avoiding person to person contact, wherever possible.

Employers should communicate the new working arrangements to all employees before they return to the workplace and may wish to consider imposing additional conditions on employees allowed to return to the workplace during lockdown to assist with controlling the risks associated with COVID-19. This could include restrictions on access (including days/hours and areas of the workplace available) and obtaining written agreement from the employee that any and all measures implemented to control risks in the workplace will be followed at all times.

As with all risk assessments, the risks must be kept under review to ensure the mitigation measures remain effective and appropriate. This is particularly important in the circumstances given the ever evolving position in respect of COVID-19. The increased transmissibility of the new variant has already prompted discussions about a requirement to review the COVID Secure guidelines at a Government level to ensure the measures currently advised are effective enough. As such, it will be crucial that employers keep up to date with evolving guidance and respond promptly to any changes to the advice provided if employees are to be allowed back in the workplace during the current lockdown.

The imminent roll-out of vaccines should give comfort to employers that an end is in sight, but these issues will remain crucial for the weeks and months ahead as we navigate through these uncertain times.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.