Returning to the workplace – employment law considerations for employers

10 September 2021

Signs that the UK is preparing for life post-pandemic are appearing. Around 75 per cent of the UK population is now fully vaccinated against coronavirus, and the self-isolation requirements for double vaccinated people exposed to the virus have been removed. 

Staff members are returning to work following their summer holidays, and employers may expect them to return to their workplaces too. Whether on a full-time basis or on a hybrid working model, the reopening of workplaces presents challenges to employers.

What does the end of isolation rules mean for employers?

As of 16 August 2021, individuals who have been double vaccinated or who are under the age of 18 are not required to isolate after being exposed to coronavirus. There is also no requirement for isolation-exempt individuals to take a PCR test to ensure that they are not unknowing carriers.

This change has generally been welcomed by employers, but it could cause concern for specific sectors where there is regular close contact between staff and/or vulnerable individuals (for example in the care sector). It could also be unsettling for workers, particularly since we now know that those who are double vaccinated can still catch and spread coronavirus. 

Employers may therefore decide to include testing and/or isolation as part of their health and safety or infection control procedures and their obligation to provide a safe working environment. This approach should be taken in consultation with staff and a policy should be drawn up to clearly outline any isolation and/or testing requirements. Workers who are unable to work from home when their employers require them to isolate will still be entitled to their normal salary, whether or not they test positive for coronavirus. 

Workers who test positive for coronavirus must isolate for 10 days. They will be entitled to statutory sick pay for the entire isolation period. 

Employers will also need to factor in the privacy implications when employees are required to disclose their vaccination status and/or undertake PCR testing. This will amount to special category personal data under the Data Protection Act 1998. It is subject to stricter legal obligations concerning the employer’s handling and retention of that data.  

Can we require our staff to be vaccinated against coronavirus?

Now that vaccination is available to all individuals aged 16 and over, employers may be considering whether they can lawfully require their workforces to be vaccinated. 

From 11 November 2021, it will be a legal requirement that all care home workers and volunteers be fully vaccinated against coronavirus. This law does not currently apply to any other sector. Any blanket policy requiring all staff to be vaccinated therefore comes with significant legal risks. 

We cover the employment legal implications around compulsory vaccination in Coronavirus: Compulsory vaccination – the employment legal issues

Do we need a hybrid working policy?

Over the past 18 months businesses have embraced working from home, and many employers are committed to permanently adopting a hybrid working model. 

As we continue to adapt to post-pandemic life, businesses should be consulting with their staff on their approach to hybrid working. Where employers intend to implement a balance between working from home and the office, a hybrid working policy should be drawn up that clearly sets out all expectations. 

The policy should also address the employment law risks associated with hybrid working. For more information see Hybrid working policies – Designing them with the employment legal risks in mind.

Are there any additional legal considerations around working from home?

Where staff move to working from home on a permanent basis, employers will need to ensure they comply with health and safety obligations and undertake appropriate risk assessments. This is especially important for workers who are pregnant or have a disability. A worker’s home office is considered an extension of the workplace so the same health and safety obligations apply.

It has been reported that some employees who worked from home during the pandemic have struggled to disconnect from work and have worked longer hours. In some cases, this has affected their mental health. Employers will need to address these issues and ensure they are complying with the Working Time Regulations in relation to the maximum working week and minimum required rest breaks. Otherwise they may face claims for:

  • breach of the Working Time Regulations;
  • discrimination;
  • constructive dismissal; and
  • personal injury claims.

Employers should also confirm that their data protection policies and systems are compliant with data protection laws. Policies will need to be reviewed to ensure they adequately cover home working, and that workers understand their own data protection and confidentiality obligations.

Do we need to change staff contracts?

Employers may be considering whether they need to make permanent changes to their employment contracts in order to support hybrid working in their business. This will largely depend on what the employment contract says about the employee’s place of work and if there is any flexibility as to its location. We discuss this further in The hybrid working revolution – do employment contracts now need to change? 

Can we dismiss employees who refuse to return to the workplace? 

Employees who have been working from home for the past 18 months may be reluctant to return to the office on a full-time basis – or at all. 

Refusing to comply with a management instruction to return to the office could amount to misconduct justifying dismissal. This is especially true if the employee doesn’t have a valid reason and needs to be in the office to properly perform their role. However, before using this ground to dismiss an employee with at least two years’ continuous service, employers will need to follow a formal disciplinary procedure to avoid unfair dismissal claims. 

Even if your employee has less than two years’ continuous service, they may still be able to pursue a discrimination claim if you dismiss them for not coming back to the office when asked to. For example, they may have a genuine medical concern about returning to the office and your adjustments to the workplace do not address this concern. Similarly, employees could pursue a claim for automatic unfair dismissal relating to health and safety if their employer fails to provide a safe working environment. These claims require no minimum length of service. It is therefore essential that care is taken with the dismissal process and legal advice is considered. 

Employers should carefully consider whether a return to five days a week in the office is required. If roles can be performed remotely, ending hybrid working may cause issues with staff recruitment and retention. Bear in mind that your competitors are now more likely to be offering it as a benefit, and many candidates see hybrid working as desirable.   

If you have any questions about your staff returning to the workplace, please contact Jennifer Mansoor