Welcome to the Wrigleys Employment Law Bulletin, April 2021.

The Government's staged plan to lift Covid-19 restrictions has now moved to step 2, meaning that non-essential retail, personal care businesses, public buildings, most outdoor attractions and hospitality, and indoor leisure facilities such as gyms can reopen. In our first article this month, we consider the implications for employers who may be encouraging more staff to return to the workplace, and for those working with clinically extremely vulnerable staff.

We report on the long-awaited decision of the Supreme Court in Tomlinson-Blake v Royal Mencap Society which confirms that employers do not have to include all of the hours of a sleep-in shift when calculating whether workers are being paid the National Minimum Wage.

Following the Supreme Court's decision in February that Uber drivers are workers, we consider the Court of Appeal's decision in Addison Lee Ltd v Lange & others to refuse the Respondent permission to appeal the EAT's conclusion that Addison Lee drivers are workers.

We are now beginning to see tribunal cases brought last year in the context of the Covid-19 pandemic. We look at the interesting employment tribunal decision in Rodgers v Leeds Laser Cutting Ltd which considers whether an employee was automatically unfairly dismissed because he refused to attend work because of fears about contracting Covid-19. We also cover the Isle of Man Employment and Equality Tribunal case of William John Pye v Douglas Borough Council which considered whether an employer had made unlawful deductions from wages when its employee was unpaid during a period of being stranded abroad and unable to work because of Covid travel restrictions.

Our annual Employment Law Conference takes place on 10 June 2021. A virtual, day-long conference, it will be on the theme of leading in challenging times and will be a great opportunity to think imaginatively about new ways of working and to learn from the practicalities of leading and managing hybrid teams through the challenges of Covid-19. Please see the link below for booking details. We look forward to seeing you there!

We are always interested in feedback or suggestions for topics that may be of interest to you, so please do get in touch

Return to Work Guidance - Is it time to return to the workplace?

Article published on 15 April 2021

As the country emerges from lockdown, what do employers need to know about the rules on working from home?

From 29 March 2021, there is no longer a legal requirement to work from home, though employers will need to carefully consider the situation before allowing staff to return to their usual workplace. From 1 April 2021, the shielding programme was paused, meaning employers should prepare for clinically extremely vulnerable employees' return to the workplace, if it is safe for them to do so. We consider below the nuances in the latest government guidance on working during the pandemic.

What does the lifting of the legal requirement to work from home mean?

Between 6 January and 29 March 2021, individuals were only permitted to attend work where it was "reasonably necessary.for the purposes of work". This has now changed, as the previous order to 'stay at home' unless you have a reasonable excuse has been lifted.

Although attending the workplace is no longer a breach of the law, government guidance states that individuals should continue to work from home "if you can". The guidance highlights people who work in critical national infrastructure, essential public services and essential retail (such as supermarkets and pharmacies) as examples of people who should travel to their workplace if they cannot work from home. However, it is clear that individuals do not need to be classed as a critical worker to go to work if they cannot work from home. The guidance encourages employers to take every possible step to facilitate employees' working from home, including providing suitable IT and equipment to enable remote working.

Unfortunately, the guidance does not clarify what is meant by "work from home if you can". Previous versions of government guidance have stated that everyone who can work "effectively" from home should do so, which some interpreted to mean that people could attend their workplace if, for example, they worked more efficiently there compared with at home, perhaps due to not having adequate facilities at home, or due to distractions.

Because the new guidance omits the word "effectively", it seems to suggest that those who can work from home should do so, even if this is less efficient than working from the workplace. If that is the case , someone who came to work because, for them, it was more efficient, even when they were capable of working from home, might appear to be in breach of the guidance.

What should employers consider before allowing staff to return to the workplace?

Employers will need to be mindful of the health and safety and reputational risks of allowing employees to return to the workplace if this is done in breach of guidance. For example, employers will still need to be sure that there is a rigorous health and safety assessment for Covid in their workplaces and that all reasonable mitigation efforts have been made to limit these risks for staff if they return to work.

Employers have a duty of care to staff and are required to provide a safe work environment. They should also consider any employees who indicate that working from home is having a detrimental impact on their mental health. This may necessitate allowing an employee to work in the office, even where others are refused permission. Employers will need to carefully consider each request to be physically present at work on a case by case basis and keep a record of the decision made and why.

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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.