Returning to the office – revised Government guidance

Clients will have noted the gradual change of emphasis in the government’s guidance for employers: from an injunction to facilitate working from home unless that was impossible, to re-opening under very limited circumstances, to the Prime Minister’s announcement on 17 July that employers should be given much greater discretion to decide whether to re-open, and employees much greater choice in deciding whether they would be more productive in the office.

That change of emphasis has now found expression in the Government’s official guidance. The most significant changes, which take effect from 1 August, are as follows.

Employer discretion

New guidance says

Businesses and workplaces should make every reasonable effort to ensure their employees can work safely. From 1st August, this may be working from home, or within the workplace if Covid-19 Secure guidelines are followed closely. When in the workplace, everyone should make every reasonable effort to comply with the social distancing guidelines set out by the government (2m, or 1m with risk mitigation where 2m is not viable, is acceptable.

In order to keep the virus under control, it is important that people work safely. Working from home remains one way to do this. However, the risk of transmission can be substantially reduced if Covid-19 Secure guidelines are followed closely. Employers should consult with their employees to determine who, from the 1st August, can come into the workplace safely taking account of a person’s use of public transport, childcare responsibilities, protected characteristics, and other individual circumstances. Extra consideration should be given to those people at higher risk. When it is decided that workers should come into their place of work then this will need to be reflected in the Covid-19 risk assessment and actions taken to manage the risks of transmission in line with this guidance. It is vital employers engage with workers to ensure they feel safe returning to work, and they should not force anyone into an unsafe workplace.

Steps that will usually be needed

  • Considering the maximum number of people who can be safely accommodated on site.
  • Planning for a phased return to work for people safely and effectively.
  • Monitoring the wellbeing of people who are working from home and helping them stay connected to the rest of the workforce, especially if the majority of their colleagues are on-site.
  • Keeping in touch with off-site workers on their working arrangements including their welfare, mental and physical health and personal security.
  • Providing equipment for people to work at home safely and effectively, for example, remote access to work systems.
Previous guidance said

Businesses and workplaces should make every reasonable effort to enable working from home as a first option. Where working from home is not possible, workplaces should make every reasonable effort to comply with the social distancing guidelines set out by the government (2m, or 1m with risk mitigation where 2m is not viable, is acceptable).

People who can work from home should continue to do so. Employers should decide, in consultation with their workers, whether it is viable for them to continue working from home. Where it is decided that workers should come into their place of work then this will need to be reflected in the risk assessment and actions taken to manage the risks of transmission in line with this guidance.

Steps that will usually be needed

  • Staff should work from home if at all possible. Consider who is needed to be on-site; for example:
    • workers in roles critical for business and operational continuity, safe facility management, or regulatory requirements and which cannot be performed remotely; and
    • workers in critical roles which might be performed remotely, but who are unable to work remotely due to home circumstances or the unavailability of safe enabling equipment.
  • Planning for the minimum number of people needed on site to operate safely and effectively.
  • Monitoring the wellbeing of people who are working from home and helping them stay connected to the rest of the workforce, especially if the majority of their colleagues are on-site.
Comment

In short, the headline objective has changed so that “employers should ensure workplaces are safe whilst also enabling working from home” rather than that “everyone should work from home, unless they cannot work from home”.

Safety rightly remains everyone’s main focus. The Government has, however, signalled a change of emphasis such that working from home should no longer be regarded as the default option for office-based employees.   

The new guidance continues to emphasise the requirement to consult with employees before allowing them to return to the office. It now even sets out the factors employers ought to consider when determining who can safely return. 

Adherence to the Government’s guidance, modified as necessary for each specific workplace, will be a key aspect of any re-opening.

Covid secure notice

New guidance

View high-resolution Covid-19 secure notice here.

Previous guidance said

View high-resolution Covid-19 secure notice (previous version) here.

Comment

Bullet three of the notice has been updated to indicate the change in the requirement to work from home. The Government requires employers to display this notice in their workplace after they have carried out a risk assessment.

The Government notes that by displaying this notice it shows employees that they have complied with the guidance on managing the risk of coronavirus.

Use of masks

New guidance says

There is growing evidence that wearing a face covering in an enclosed space helps protect individuals and those around them from Covid-19.

People are also encouraged to wear face coverings in enclosed public spaces where there are people they do not normally meet.

Previous guidance says

There are some circumstances when wearing a face covering may be marginally beneficial as a precautionary measure. The evidence suggests that wearing a face covering does not protect you, but it may protect others if you are infected but have not developed symptoms. However, workers and visitors who want to wear a face covering should be allowed to do so.

Comment

We have all become used to wearing masks while shopping, since the change on 24 July to make this compulsory.  While not compulsory in offices, employers may wish to recommend the use of masks in common areas, such as meeting rooms and canteens, and while moving around the office.

Mass gatherings

New guidance

It is against the law to gather in groups of more than 30 people in private homes (including gardens and other outdoor spaces). Businesses following Covid-19 Secure guidelines can host groups of more than 30 people indoors. Events in public outdoor spaces that are organised by businesses, charitable or political organisations, and public bodies, can host more than 30 people provided they take reasonable steps to mitigate the risk of transmission, in line with Covid-19 Secure guidance and including completion of a risk assessment.

Previous guidance said

Indoor gatherings should only be occurring in groups of up to two households (including support bubbles) while outdoor gatherings should only be occurring in groups of up to two households (or support bubbles), or a group of at most six people from any number of households. This is also the case for events in public outdoor spaces that are organised by businesses, charitable or political organisations, and public bodies provided they take reasonable steps to mitigate the risk of transmission, in line with Covid-19 Secure guidance and including completion of a risk assessment.

Comment

The restrictions on mass gatherings has been removed to allow employers to allow more than 30 people indoors and in public outdoor areas.

Commuting

New guidance

Walking or cycling where possible. When not possible, you can use public transport or drive. You must wear a face covering when using public transport.

Previous guidance said

Avoiding using public transport, and aiming to walk, cycle, or drive instead. If using public transport is necessary, wearing a face covering is mandatory.

Comment

Commuting via public transport is now permitted if an employee is unable to walk or cycle. Public transport has also been identified as one of the factors which employers should consider when consulting with employees as to whether they can come into workplaces safely.

The Government has made a series of recent announcements aimed at long-term improvements to the UK’s cycling infrastructure. Employers will need to give careful thought to whether a substantial rise in the number of employees cycling or running to work can be accommodated, or whether additional locker and shower facilities can be put in place.

Our previous client notes on how to plan for a return to office-based working, the kinds of steps that might be put in place to reduce risk, and the need for consultation with employees, give more detail on some of these areas, and are largely unchanged in the most recent iteration of the guidance. Management will need to ensure staff feel safe with whatever working arrangements are put in place and Covid-19 Secure guidelines are followed. As we have previously noted, allowing a degree of individual choice, recognising that people’s risk appetites, health conditions and home set ups may differ dramatically, and engaging in meaningful consultation throughout the process, will be key.

To discuss your particular requirements and implementation generally, please speak to your usual Macfarlanes contact.