COVID-19 — Lockdown 2 and Office-Working in the UK

Following the UK Government’s announcement of a second nationwide lockdown, effective 5 November, employers have been forced to postpone their plans for returning employees to the workplace. This note considers the practical implications for employers and best practices with respect to office-working.

How has the Government’s message changed with respect to office-working?

• In its initial announcement on 31 October, the Government retained its existing advice that employees who can “work effectively” from home must do so.
• The retention of this wording suggests that the Government intends that offices can remain open and employers should still retain some flexibility about who could attend the office.
• However, the examples given of jobs that might require presence in the workplace (critical national infrastructure, construction, and manufacturing) mark a shift in emphasis towards roles that are physically not possible to perform away from the workplace.
• This is supported by the new lockdown regulations, which came into force on 5 November and state that a person may leave home for work purposes only where it is “reasonably necessary” to leave home and where it is not “reasonably possible” for them to work from home.
• The Government has since updated its workplace guidance for offices and contact centres, which states at the outset that people “should stay at home where possible and should only travel to work if they cannot work from home,” echoing the shift in emphasis marked by the new regulations.

What does this mean for employers?

• The latest regulations and guidance suggest employers should move away from asking people to come in because this is deemed to be more productive or allowing people to come in on a voluntary basis.
• Instead, employers should take a narrower view as to who can attend the office. An assessment should be made in each case as to why, how often, and under what criteria office-working is to be permitted. This ensures there is a clear paper trail as to why, in each case, it is not “reasonably possible” for the employee to work from home. 
• Office-working could potentially be permitted for critical risk-monitoring purposes, due to childcare or IT issues or, in some cases, because an individual’s mental health is adversely affected by working from home.
• Some employers are implementing a cap (of around 30%) on the number of people permitted to be in the office at any one time. Under this system, certain essential employees (for example those in risk monitoring or compliance) could attend the office, while all others must have a specific reason and obtain consent from the employer.
• Employees that do attend should be advised to follow the latest Government guidance on hygiene and social distancing. Any rules that the employer has specifically implemented following its COVID-19 Risk Assessment should also be communicated and observed.
• For FCA-regulated firms, the FCA has confirmed that firms “should refer to the appropriate government guidance for advice on who should work from home, if possible, and ensure workplaces are safe for those who cannot work from home.” The CEO Senior Management Function (SMF1) is accountable for ensuring an adequate process for following and adhering to Government guidance. For firms that do not have an SMF1, responsibility will fall to the most relevant member of the senior management team.

What about work gatherings?

• Under the new regulations, gatherings of two or more people from separate households are generally prohibited indoors, and gatherings of three or more people from separate households are generally prohibited outdoors.
• However, an exception is made for gatherings that are “reasonably necessary for work purposes.” This is subject to the general restriction that employees attending such gatherings may only leave home where “reasonably necessary” and where it is not “reasonably possible” for them to work from home. The Government’s announcement cited nannies, cleaners, and tradespeople as examples of where this may be permitted.
• Updated guidance for hotels and other guest accommodation and the visitor economy state that “business meetings and events are advised against, but may take place with up to a total of 30 people if reasonably necessary - for example for the purposes of work that cannot be done at home - if social distancing can be maintained and the venue can demonstrate it has followed the COVID-19 guidance.” Conferences, exhibitions, trade shows, and private dining events are expressly prohibited.
• It therefore appears that work gatherings are permitted but only in limited circumstances. The language and spirit of the new regulations again marks a shift in emphasis to where gatherings are reasonably necessary in order to perform work, rather than where they would simply be more efficient. In practice it may be difficult to meet this test for most work gatherings, which can feasibly take place remotely. Additionally, many venues are likely to be reluctant to host such events (if they are open for business at all) in the current climate.
• In light of the new regulations and guidance, employers should limit workplace gatherings only to where they are reasonably necessary for work purposes and cannot be performed remotely, e.g., over the phone or via video conference. The reasons why this is the case should be clearly documented. The number of participants at any such gatherings should also be limited and social distancing and hygiene guidance should be observed. Social gatherings with work colleagues are not permitted.