“Freedom Day” has now been and gone and with it the requirement that we continue to work from home. Many businesses will soon be ramping up their attempts to get their employees back to the workplace. The pandemic plunged many businesses across the country into an unexpected trial of remote working. Moving back to the more rigid working arrangement will not come without its challenges as employers battle to protect their businesses and safeguard their workforces. Melanie Stancliffe, employment partner at Cripps Pemberton Greenish, explores the carrot and the stick approaches many businesses are adopting to strongly encourage staff to return to the workplace and the actions which can be taken if staff have reservations.
The end of remote working?
The last 18 months of remote working have divided opinions on whether remote working is a positive change. For some employees, the ability to work remotely has been hugely beneficial. A recent YouGov survey found that 57% of staff wanted to continue working from home after the pandemic, reporting greater work-life balance, collaboration, and motivation. However, remote working does not come without its setbacks. Employees can be isolated and lonely, or lacking the space to work. For businesses, the supervision of staff, safeguarding confidential information, cohesion, creativity and efficiency can all be compromised by remote working. Not to mention, that many businesses continue to pay large overheads for unused workspaces which has caused business like Goldman Sachs, JP Morgan and Amazon, to call staff to return to their offices.
“The Carrot”
All employers have a legal duty to provide a safe place of work. If they have taken the necessary precautions set out in the Government guidance, the workplace will be Covid-compliant and safe. It has been a challenge for smaller businesses to monitor these guidelines but having done so, the drive to get their employees back to the workplace is underway using the required precautions (one way systems, hand sanitising stations and social distancing) going forward. It is essential that businesses communicate these protections to employees so they can have confidence that they are safe. Where with staff who express concerns about their return, these precautions can be reiterated with discussions about changes if they fit with the business, in the short term, such as staggered start and finish times and some hybrid working (partially from home and the workplace). Where employees feel that their concerns are being listened to, even if they cannot be accommodated, that can often be sufficient to win them back.
Promoting take up of the Covid-19 vaccine, is another way to encourage employees to return. Personnel Today reports that 24% of managers would only work with staff who had received both doses of the vaccine. If staff feel unsafe returning to work where colleagues are unvaccinated, they will be reassured if other staff have been vaccinated. Businesses cannot require staff to be vaccinated but they can provide educational literature or links, paid time off to get vaccinated and (monetary) rewards. Businesses should tread carefully with staff who refuse for genuine medical, or philosophical reasons – you will need to discuss these objections and consider whether you can accommodate them. Usually having other safety precautions in place, will usually remove the objections that staff might raise.
To entice staff back to the office, we are seeing businesses are getting creative and introducing fun events for staff at or near the workplace. After work drinks, quizzes, barbeques, pizza lunches and even free breakfasts are just some possible ideas to incentivise staff who might otherwise experience the fear of missing out.
“The Stick”
Whilst encouragement and support can be effective, it is useful for businesses to remind staff of the workplace which they agreed to in their contract and set a clear timetable for returning. Employees have never had the right to demand to work from home – even if it was permitted during the lockdowns, it doesn’t create a right to work remotely. The only exception is where an employee really believes they are in danger of substantial harm in returning. In that scenario, you should discuss it with the employee privately, consider if any alternatives would work and show the steps you are taking to assuage their concerns.
Businesses who can show there is no danger of substantial harm can order their staff return to work from their contractual workplace without risk. They are entitled to instruct their employees back to work full time as before the pandemic. If the employee doesn’t attend, without good reason, they can be disciplined and sanctioned. Depending on your policies, you may even be able to follow a process and dismiss or demote them. One should be careful of taking a blanket approach to all who don’t return – employees such as those who are pregnant or clinically vulnerable could claim they are being discriminated against if adjustments are not made. In practice, getting some employees to return and encourage others to so the same, has to be weighed with the business need and the strong message of taking assertive action to set an example that all are expected to return.
Where an employee wants to (continue to) work from home, they need to make a flexible working request. They must demonstrate how the change they want will impact the business, not just the benefit for them. Working from home has enabled some employees to demonstrate they can be trusted and productive but if the business cannot reallocate the work, or the quality or quantity of work would be affected, they are still allowed to refuse. If the arrangement or a compromise might work, implementing the change on a trial basis is a useful tool for the business to monitor if the flexible arrangement is working for them. Remaining on furlough is not possible as that scheme is coming to an end.
The key message for businesses is that they control where their staff work and they have a number of options. Whilst a number of employees have embraced furlough and home working in their pyjamas, there is recognition that it was temporary and now the status quo resumes. For some this is welcome as remote working has not been good for their health or career progression. For all, using the carrot and then the stick approach will assist achieve a smooth transition back to the workplace and a return to the “new normal”.
Melanie Stancliffe, employment partner at Cripps Pemberton Greenish.