Monday, July 22, 2024
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Covid balancing act

A new lockdown from the start of the year was the news no-one wanted to hear. The pre-Christmas optimism that came from the approval of various vaccines soon subsided as a new Covid-19 variant spread and a third national lockdown was put in place.

As Lucy Gordon, director in the employment team at law firm Walker Morris, knows. “With many employees still feeling the effects of the first lockdown, employers now face the very real problem of trying to support vast numbers of employees who are burnt out by the ongoing situation.” She is seeing requests to return to the workplace rising again.

Even so, Gordon says that given current government guidance “the starting point must be that those who are able to work from home, should; 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.”

This aside, Gordon reminds us that it is important to remember that “employers remain legally obliged under the Health and Safety at Work etc. Act 1974 to ensure, as far as reasonably practicable, the health, safety and welfare of their employees regardless of where they are physically working.” And this translates to mean that when individuals are working at home, employers should ensure their employees have a suitable working environment and have the equipment they need to work effectively. Gordon recommends that employers should also encourage staff to continue to take rest breaks.

Assuming that the employee’s role can be performed from home, but the employee’s 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.

Gordon notes that employers need to consider whether they could be under a legal duty to consider the request. For example, she says that “if an employee is suffering from a disability under 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.

In Gordon’s opinion, “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 attending the workplace where they are undoubtedly at higher risk of contracting Covid-19.” 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, then Gordon says it would not be appropriate for the request to be granted.

Risk assessments are at the heart of health and safety and so it follows that before any employees return to the workplace, employers should demonstrate that their working practices are objectively reasonable and comply with the Covid Secure guidelines; this means producing a specific Covid-19 risk assessment. For Gordon, “this should identify essential versus non-essential activities as well as appropriate risk mitigation measures which could include restricting movement around the site, minimising touch-points, increasing frequency of cleaning, and providing PPE.”

Beyond that, Gordon also advises that employers communicate the new working arrangements to all employees before they return to the workplace.

The 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.

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