During these unprecedented times, where the situation is changing on a daily basis, we are aware that individuals and business owners will have many questions and uncertainties about how these developments impact on them.
Here, through a series of Q&A with expert lawyers from across our firm, Sintons hopes to be able to answer some of those pressing questions, and provide some certainty and clarity for people who are unsure how to proceed.
We will bring you a question and answer per day for the next few weeks.
Q – One of my staff members is finding it difficult adjusting to working from home. Our office is still open but we are advising all staff to work from home. Can an employee choose to be office based?
A – The Government’s guidance sets out the circumstances where individuals are allowed to leave their house under the current lockdown. One of these is to travel for work purposes but only where work absolutely cannot be done from home.
In light of this, you should be making every effort possible to enable working from home, including the provision of suitable IT equipment. If your workplace and the employee’s role allows for remote working, you should talk to them to find out what the issues are, discuss how these might be resolved or improved and whether there is further support that can be provided to help with their adjustment. There may be particular individual needs that need to be considered, such as childcare responsibilities or a long-term health condition or disability.
It will depend on the employee’s individual circumstances and the impact these are having on their ability to carry out their job, but if it is simply the case that they have a preference for working in the office, this shouldn’t be sufficient to go against your advice.
That being said, your position is just advising, rather than a requiring, employees to work from home. The difficulty here is that the Government lockdown and the requirements that come with it aren’t. The ability to travel for work is expressly limited to where someone cannot work from home, and as an employer you are required to make every effort possible to enable working from home as the first option. If it is the case that the employee simply finds it harder or inconvenient to work from home then a discussion should be had about the reasons why this is advised, both in respect of the employee’s health and others, with reference to the Government guidance.
If this doesn’t work then it may be appropriate to consider changing your policy to require employees to work from home unless it is absolutely necessary. If there is already an established requirement to work from home where appropriate or where instructed to do so (or in the case of a business continuity issue such as a pandemic), then there is unlikely to be an issue in applying that obligation in an effort to contain the spread of COVID-19. If not, imposing home working would arguably constitute a variation of the contract requiring employees’ express consent, although in the circumstances we wouldn’t expect this to be rejected.
For further advice on this or any other employment matter, please contact Keith Land, head of employment at Sintons, on keith.land@sintons.co.uk or 0191 226 4892.
