Return to the office - old or new normal? - ThinkHouse Foundations

James Hall: Good morning everyone and welcome to our webinar this morning which is on the return to the office. This is the second in the series of webinars that we are running this autumn in place of our usual in-person ThinkHouse Foundations events.

My name is James Hall, I am one of the co-chairs of ThinkHouse Foundations here at Gowling WLG and I am a senior associate in the employment team. As you have joined us for the webinar today hopefully you know that ThinkHouse Foundations is our programme aimed at in-house lawyers at a more junior end ranging from trainees and paralegals up to lawyers at around five years PQE.

Hopefully you were able to dial in to our webinar yesterday morning which was a litigation survival guide delivered by our colleague Ana Lelliott. If not then we will be sending around a recording of that webinar so please do keep an eye out for that. And in this series of webinars we have another one tomorrow morning at the same time which is a hot topics in data protection which will be delivered by our colleague Claire Van Ristell so hopefully you can join that one live tomorrow morning, but if not that one will also be recorded.

So on to today's topic, return to the office, the old norm. I am joined by Jasmine Coyne, my teammate here in the employment team, she is an associate here based in the Birmingham office and Jasmine is going to take you through some of the risks regarding the return to the office and offering practical tips and takeaways to be thinking about to address those risks. We are also going to have a quick poll at the beginning to get an idea of your personal thoughts on returning to the office. Hopefully you will agree that returning to the office is a real hot topic at the moment. It has been in the media lots with the COVID-19 restrictions easing and the Government's move away from a work from home instruction where possible to getting back into the office, although I am conscious that the news this morning was saying that we might be going on to Plan B so we will see where we get to, but for the moment hybrid working is the sort of new norm and we are an example of this today as I am in the office, Jasmine is working from home, but I was working from home yesterday and Tuesday as well.

So there are lots of practical challenges regarding this as well as legal ones too that we are going to talk through today, well Jasmine is going to talk you through today. So yes Jasmine is going to speak for around 30 to 35 minutes and then we will have some time for questions at the end and we will look to draw the webinar to a close at around 11.15am.

So without further ado, that is enough from me and I will pass you over to Jasmine.

Jasmine Coyne: Thank you James. Good morning everyone. As James has said, I am going to look at the issues affecting companies that would traditionally operate out of offices and the legal considerations that may arise as people are required to return to the office. Working practices have changed a lot since the onset of COVID and I think we could expect to see a more blended approach to being in the office and working from home.

But before we get into the full discussion on that, I would like to run a quick poll just to gauge how you are all feeling about returning to the office and what your preferences would be. So a question should appear on your screen shortly and the question is: how many days each week would you all like to be in the office? So you can choose; zero days, you much prefer working from home, five days, you absolutely love being in the office or perhaps you are somewhere in the middle. I will just give you a few moments to have a look at that and make your decisions and then we will take a look at the results.

Okay I think we will take a look at the results now. Hopefully you should be able to see that there is actually quite a mixed output of results but there is more of a skew towards staying at home, I do not think anyone has said that they would like to be in the office full time. I think really the different opinions held by individuals really creates a balancing act that employers need to tread because employers need to remain attracted to their employees but at the same time they need to balance the needs of their business as well.

So, the topics we are going to discuss today then, it may be that you have not brought your employees back to the office yet, or it may be that you will bring your employees back in a couple of months' time, but I think the issues we will discuss today could arise at any time. So we will be taking a look at what employers can do if employees do not want to return to the office. We will run through some of the scenarios employers might face and what the real considerations are. We will take look at flexible working requests and have a reminder of what they are and what employers need to be considering when they receive flexible working requests and then we will finish by discussing a few of the hot topics that we have been receiving queries about in our offices or in our team recently in the hope that by tackling these we might be answering a few of the queries that you are facing in your business at the moment.

So moving on to our first topic then. The question here is: can employers require employees to return to the office? And the starting point, the first point to consider is what the individual's contract of employment says, because every employee's contract of employment should have a stated of place of work in it and that may be their employer's offices in London, it could be their employer's offices in Birmingham or it could be their home address. But if their state of place of work is their employer's offices then employers can expect their employees will return to the office when requested. In principle if an employee refuses to return to their stated place of work being the office, then that employee would be refusing a reasonable management instruction and then the employer may choose to take disciplinary action against the employee if they see fit.

Really, before employers go down that road they really should be considering why the employee does not want to return to the office. This is just to understand the reasons why. So in the next section we are going to consider the possible reasons that employees may not want to return to the office and the points that employers need to be considering when presented with these issues.

So on this slide I have put on a couple of scenarios, a couple of reasons why employees may say they do not want to return to the office. So the first employee may say that they do not want to return to the office because they are worried about public transport, it is crowded, they do not want to catch COVID on the bus. It may be that the simple way of resolving this issue could be allowing that employee to travel into work at different times, so perhaps starting later or earlier or finishing later or earlier to avoid crowded rush hour transport.

But if this is not suitable for the employer's business or even if the employee still refuses to return to the office in this kind of scenario if the employee's stated place of work is the employer's office and they still refuse to come in, blatantly refusing a reasonable management instruction and this may be dealt with under the employer disciplinary policy.

The next scenario, perhaps the employee will say that working from home suits their personal circumstances, perhaps they feel that they work better from home, perhaps, I know a lot of people got lock down dogs, perhaps they need to look after their dog now, again, whilst it is helpful for employers to sit down and understand their employee's reasoning for wanting to stay at home, again in this scenario the employee would be refusing reasonable management instructions and the employer could deal with this under their disciplinary policy if this all fits.

Turning to the final point on this slide, it looks quite a lot like the first point on this slide, in this case the employee says they are anxious about returning to the office because they are anxious about being in the office and being surrounded by so many people and the risk of catching COVID in the office. On the face of it, it seems that the employee is again refusing a reasonable management instruction, however, in this kind of scenario the employer should be wary of whether the employee's anxiety could potentially be a mental health issue, because if so, the employee may be considered to have a disability under the Equality Act and this would trigger further obligations for the employer to consider. In fact there are quite a lot of possible scenarios that could arise with employees being required to return to work, which could trigger discrimination issues under the Equality Act. So I think it would be helpful just to have a quick revisit of the Equality Act before returning to look at these issues again in more detail.

The Equality Act then is concerned with discrimination and harassment in respect of the characteristics shown on screen. So the protective characteristics under the Equality Act are age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation, and there are many types of discrimination and we could spend hours and hours talking about the Equality Act alone, but the one that I want to focus on today is indirect discrimination, because I really think that this is the one that is going to be most relevant to employers as they begin to require staff to return to work.

So, indirect discrimination, in an employment setting is where an employer puts in place a provision, criterion or practice across a workforce and there is then an employee in the workforce who has a protected characteristic, and that employee could suffer or does suffer a disadvantage as a result of the provision, criterion or practice put in place by their employer because they have a particular protected characteristic. And if the employer cannot show that the provision, criterion or practice is a proportionate way of achieving a legitimate aim, then that employee would of suffered indirect discrimination.

So really, indirect discrimination is concerned with acts or decisions or policies like potentially a requirement to bring people back to the office, which is not necessary intended to treat anyone less favourably, but which in practice has the effect of disadvantaging a group of people because they have a particular protected characteristic, and then where such an action disadvantages an individual with that characteristic it would amount to indirect discrimination if it cannot be, if the provision, criterion or practice cannot be objectively justified by the employer. I will not linger over how employers can objectively justify provisions, criteria and practices is a complex subject in itself but it is more of something to be aware of at this stage.

So indirect discrimination applies to all of the protected characteristics I have previously discussed with the exception of pregnancy and maternity. But, if an employer has the provision, criterion or practice in place which affects an employee who has a protected characteristic of disability then there is a further issue for employers to consider and that is reasonable adjustments. So if provision, criterion and practice of an employer disadvantages the person with the disability the employer will have a duty to consider making reasonable adjustments for that employee, so they will need to take all reasonable steps to avoid or mitigate the disadvantage for that employee.

OK, that was quite a whistle-stop tour of Equality Act and indirect discrimination, but I think now we are better prepared to deal with the scenarios on screen. So if we return to our original question of how employers might deal with an employees who says they are anxious about returning to the office. If the employee's anxiety is a mental health issue or amounts to a mental health issue under the Equality Act, it is worth saying that not all health issues will amount to a disability under the Equality Act, but for our purposes we will assume this one does. If this employee has a disability under the Equality Act the requirement for the employee to return to the office would be a provision, criteria or practice put in place by their employer and if that employee were then subjected to or threatened with disciplinary action then they will have been disadvantaged by the policy of their employer and this could amount to indirect discrimination in relation to this employee. Because this particular policy disadvantages a person with a disability, the employer would then have to consider making reasonable adjustments for that employee and it may be in this context that a reasonable adjustment could be allowing that employee to remain at home.

Similarly, with the next scenario, if an employee refuses to return to the office because they are a vulnerable person, because they have underlying health issues, like someone who was previously told to shield, it is possible that any of those underlying health issues could also amount to a disability under the Equality Act and again disciplining this kind of employee not returning to work could amount to indirect discrimination. And again the employer would need to consider making reasonable adjustments for this employee as well.

So these are just some of the scenarios or reasons that employees may say that they do not want to return to the office, but hopefully the examples that we have discussed demonstrate that it is really important to fully understand each individual's circumstances in order to identify early whether the reason they did not want to return to the office is linked to a protected characteristics and understanding it early should therefore help to avoid or mitigate any discrimination issues arising.

Flexible working requests, our next topic. After more than a year of enforced working from home I think it is likely that when employees are required to return to the office, employers might expect an influx of flexible working requests and some employees try to retain some or all of their working from home arrangements. But what is a flexible working request? So a flexible working request is something that an employee can make once they reach 26 weeks continuous service and employees can request a change to their hours of work, the times when they are required to work, so if starting early or starting later, or a change to their place of work, so for example a request to work from home. Employees can make one request in any 12 month period and then once employers receive a written flexible working request they then have three months to consider the request and then deliver the outcome.

Employers do not have to accept the flexible working request but they can only reject a flexible working request on certain grounds that are set out in statute. I will not run through all of the statutory grounds but they are predominantly business reasons for rejecting a flexible working request. So employers may think that granting a flexible working request could result in additional costs for the business or impact on quality or performance or ability to meet customer demand, so predominantly business reasons for rejecting the request.

But as I said, I think it is reasonable for employers to expect an increase of flexible working requests. I think this begs the question of how employers are meant to deal with an increase in numbers because it is one thing to receive one flexible working request, it is another to deal with the percent of your workforce making a flexible working request.

So when an employer receives a flexible working request they are required to judge whether they can accept the flexible working request based on the situation that the company finds itself in at that particular moment in time. So for example, if person A makes a flexible working request and the employer looks at their business and finds that they have no statutory grounds to refuse it, then they should accept it. But then more people make flexible working requests and then by the time it gets to person Z the employer looks at their business and thinks actually we have got a statutory ground of refusal now, a business reason for refusal, then the employer does not have to accept person Z's flexible working request, even if person Z made the same flexible working request as person A.

So making a change for one person does not mean that employers have to make the same change for every person if the same request is made. So essentially employers need to be treating employees fairly but on a first come first served basis.

So as a recap flexible working requests are a right gained on 26 week service, employees can make one request in any 12 month period and employers then have three months to consider and deliver the outcome to the request. But a sign of the times I think the government are at present in consultation and reviewing flexible working requests and the requirements as they stand, and they are considering whether to make flexible working requests a day one right, so employees may be able to make their requests on their first day. They are also considering whether employees should be allowed make more than one request in any 12 month period and they are also considering whether they should shorten the timeframe in which employers have to deliver the outcome.

It remains to be seen whether any of these changes are affected by law, but either way if they are I think it will add more pressure to employers as will any increase in flexible working requests and I think that really dealing with flexible working requests is time consuming and may distract from the operations of the business, so I think it would be very helpful if an employer is to consider how they can head off flexible working requests at the outset so employers might consider doing surveys of their employees, to gauge the mood, I know here at Gowling I have completed many surveys and in the end our management have put in place an agile working policy which requires us to be in the office 50 percent of the time. That means we retain some of the benefits of working from home, like work life balance, but also have benefits of being in the office and collaborating with team members. I think it is working well so far. I think, I can image, that it has headed off a few flexible working requests. So I really think that taking steps to anticipate employee preferences early may head off having to deal with an increase in flexible working requests down the line.

Moving on to our final section, as promised I am now going to run through some of the hot topics we have been receiving queries about in our offices. These could easily be topics that you have faced or may face in your business in the months to come.

So the first question we get quite a lot is whether employers can require employees to be vaccinated? I think the answer here is no, most employers cannot require employees to be vaccinated without incurring a significant legal risk. Currently only regulated care homes will be able to legally require workers to be vaccinated from 11November onwards, and our discussion today has been focused on more typical office workers. Employers should also be alive to the fact that requiring employees to be vaccinated as a condition to providing work could also amount to a repudiatory breach of contract entitling the employee to resign and then perhaps claim constructive dismissal. Also, you may be able to see from our earlier discussion that any mandatory vaccination policy risks possibly indirectly discriminating against employees with certain protected characteristics.

So for example, in the context of disability again, some of the vaccines in production are not suitable for people with suppressed immune systems, some people cannot have vaccinations because certain allergies that they have and if the underlying health reason why an employee cannot have a vaccine amounts to a disciplinary under the Equality Act then it is easy to see that any policy that requires employees to be vaccinated could disadvantage this kind of employee on the basis of their disability and again as this kind of employee is being disadvantaged because of the policy as a result of a disability the employer would then need to consider making reasonable adjustments for that particular employee.

In a slightly different context, it is possible that some religions could prevent an employee from having a vaccine. It is also possible, although not tested, that an anti-vaccination view could amount to a philosophical belief under the Equality Act and therefore requiring a person with a religious belief or philosophical belief under this kind to have a vaccine may then disadvantage them and then result in indirect discrimination again.

OK, the next question we get quite a lot is whether employers can enquire about staff vaccination status. I think it is fair to say that quite a lot of people would feel safer if they knew that the person next to them was vaccinated, but collecting data about employee's vaccination status is a sensitive issue, it needs to be considered carefully because essentially what you are collecting is personal data and the Information Commissioner's Office has issued guidance on this point and they said that an employer's reason for checking on or recording people's vaccination status must be clear, necessary and transparent and it should also be determined by the sector that you operate in and the kind of work that staff do. Therefore, whilst employers running care homes may be able to justify enquiring about vaccination status, I think it is unlikely, unless there are any very significant health and safety risks, that in your typical office environment that an employer could justify making these kinds of enquiries.

The final question that we get quite a lot is whether employers can require employees to wear face coverings. As James said earlier, Boris has hinted at a possible Plan B over winter if things do not go very well that requires us to wear masks inside, but at present there is no requirement for us to wear them. Employers do have their own autonomy and may have or may put a policy in place requiring employees to wear masks, but as at present there is no guidance mandating masks, if employer's are not going to enforce a policy like this then they really should start by considering in the first instance whether it is reasonable to ask employees to wear masks. And this is where things like risk assessments are important because if the outcome of the risk assessment does not suggest that wearing masks is appropriate then it would be difficult to take action against an employee for refusing to wear one. However, even if you can establish that the requirement to wear a mask is reasonable it would still be very important and very sensible for employers to ask why the employees are not wanting to wear their masks, because the reasons will vary from person to person and the employers need to be alive as to whether any of these reasons again, could relate to a protected characteristic of the employee. For example in the context of disability again, if that particular employee has a respiratory condition which makes it difficult for them to wear a mask, any policy mandating the wearing of masks could inadvertently disadvantage this kind of employee with a disciplinary. Again, the employer would need to consider whether it can make reasonable adjustments for that particular employee.

OK, that rounds up the topics that I planned to discuss today, I think the summary of what I have talked about is that it is likely or possible, that when employees are required to return to the office they may express concerns or they may express concerns about policies or procedures that are put in place on their return to the office. But really the most important thing is that employers talk to their employees and listen to their concerns and consider whether any of the concerns raised trigger any indirect discrimination issues or legal obligations on the part of the employer particularly related to the protected characteristics of their employees.

On that note I will hand back to James and I would be happy to answer any question that you may have on what I have discussed.

James: Thanks very much Jasmine that was really great, really helpful some really interesting points for us to be thinking about there. So please do send in any questions that you have, we have got some time now to go through them.

We have had one question in, which I will ask you now Jasmine. Somebody said that they understand the position relating to disabled employees but they are wondering about if an employee has a vulnerable relative at home that means they do not want to return to the office. Does an employer have to take that into consideration in the same way that you described earlier for a disabled employee?

Jasmine: OK, so if the employee has a vulnerable relative?

James: Yes, that is right.

Jasmine: OK. So the obligations of the employer do not extend to a person that the employee lives with, the employer's obligations at present extend to the employee themselves, so there would be no indirect discrimination in that context. Obviously it is a very sensitive situation and the employer should treat it as such, but having said that, there has been a recent European Court of Justice decision which suggests that associates of a disabled person might be able to claim indirect discrimination if they are affected by a provision, criterion or practice which would then put that disabled person at a disadvantage. I believe there is also been a recent employment tribunal applying this ECJ decision in the UK but it is not binding, so we do not really know what the UK appeal courts will make of it so at present there is no indirect discrimination but it may be something that is before the courts in the not too distant future.

James: OK, great, so one to be keeping an eye out for. I have another question through which is sort on a similar line to vaccines and face masks, the person asking the question asks do you have any specific concerns about testing and how that might come in to return to the office? I think effectively the question there is is there anything to stop employers from testing or return to the office, do you have any recommendations about that?

Jasmine: They would have to have their employees consent to do that and again any of the results would again be personal data so the same kind of issues arise out of how employers deal with that data and whether they can justify doing it.

James: Yes, I think that is right especially given the current context, I think testing to come into the office is probably unlikely to be necessary for a typical office worker, so you would need to be thinking about why you specifically need to test in the current climate, but as Jasmine has touched on I think that could change in the future. I think the other key point as Jasmine said is the data protection point.

And then we have had one more question come through which I will just ask you as well Jasmine, which is so we have talked about vaccination information in sort of your current employees but do you have a view on whether that applies in the same way to recruiting new employees or future employees, the rules on whether you can hold that data and ask people?

Jasmine: Asking people whether they have been vaccinated before they come to interview essentially?

James: I think so yes.

Jasmine: If an employer is saying that only people who are vaccinated can come to interview, then the concept of indirect discrimination applies equally to current employees of the employer as it does to perspective employees of the employer, so this kind of policy would be discriminatory against that kind of job applicants. So I would not advise employers to do that particularly.

James: Great, OK, thanks Jasmine. Well we have not got any more questions so hopefully everyone has enjoyed it and you have already answered them all with your very thorough speech there, thank you for that Jasmine.

Before we close the webinar, I just want to remind everyone again about the data protection webinar we have at the same time tomorrow, so hopefully you can all join that one and also just to say that there will be that feedback form popping up after, if you do have two minutes we would really appreciate you giving your thoughts. Otherwise I will just say thanks again to Jasmine and hope you have a great day.