Should employers brace for a wave of legal claims from staff over the return to the office?

Much has been written in the national press regarding businesses bracing themselves for a succession of legal challenges from staff reluctant to return to the office.  The i newspaper recently reported that fewer than 1 in 5 employees want to return to the office full-time.

Now that “Freedom Day” on 19 July 2021 has passed and the government is no longer instructing people to work from home, many businesses may wish to return to some sort of pre-COVID normality by asking their members of staff to return to the office.  The government has admitted that due to the high prevalence of COVID at present, it expects and recommends a gradual return over the summer.

So, should employers be worried about an influx of legal claims? 

There is certainly the potential for legal claims to be brought but whether an employer will be hit with a tidal wave of legal claims is something that will largely depend on how carefully it navigates a return to the office, whether the return is full-time or part-time and whether all members of staff are expected to return no matter what.  Flexibility will be important and consultation with members of staff is likely to assist with maintaining good relations.

One particular area of risk is how employers treat the clinically extremely vulnerable (CEV).  Such individuals are likely to class as disabled under the Equality Act 2010 and, as such, have the benefit of various extra legal protections, for example, a duty on the employer to make reasonable adjustments.  It may also be the case that such employees have effectively made “protected disclosures” by raising their health and safety concerns and, as such, would have whistleblowing protection in certain circumstances against detriments and dismissal as a result.

In practice, those businesses that wish to require all members of staff to return to the workplace will need to make exceptions for, for example, those who are CEV.  This is despite such a high uptake of vaccinations; it must be remembered that no vaccine is 100% and there is also emerging evidence that suggests that some immunocompromised and immunosuppressed individuals may not respond as well to covid-19 vaccines as others.  Those who are CEV are likely to want, and more importantly, be legally entitled as a reasonable adjustment, to continue working from home where possible for many more months to come.

Not only will businesses have to decide when and who should return to the office but also their policy around face coverings.  In general, face coverings are no longer required by law.  However, businesses will not only need to analyse sector-specific government guidance but will also need to assess from a health and safety perspective whether to require face coverings to be worn by members of staff.

Where only a proportion of the workforce returns to the office, it is important that businesses don’t forget about those who are still working from home.  It’s easy to slip into an “out of sight, out of mind” mindset – this could lead to those who are working from home for reasons related to a disability feeling neglected and such treatment may put the employer at risk of disability discrimination claims.  The technology is likely to be there already to include home-working individuals in in-person meetings.

The updated guidance issued by the government contains some sage advice: “It is important to respect and be considerate of those who may wish to take a more cautious approach as restrictions are lifted.”  Many employers may be craving a full return to the office due to reasons such as team-building and morale but, ultimately, businesses in which employees have been working from home successfully for the last 18 months will need to take a flexible and steady approach.  Consultation with staff, perhaps involving the use of surveys, about the idea of a return to work is likely to be a good starting point in judging the sentiment of staff and a useful way to start a two-way dialogue to ensure employees feel heard.  If a majority of staff are reluctant to return then, given how variable this pandemic has been – involving three waves so far – some businesses may wish to adopt a cautious approach and continue the status quo in order to “wait and see” whether further waves emerge and the guidance may once again return to working from home where possible.

For further information, please see the updated guidance on protecting people who are clinically extremely vulnerable from COVID.