Homeworking, the new normal? Returning to the office

This is the third blog in our series on homeworking, where we look at the law on homeworking, challenges employers might face as a result, and the possibility of returning to the office in a post-covid-19 world.

This week’s question - is homeworking coming to an end? We will look at the current guidance of the Scottish government and consider when employees might return to the office and what returning means for both employee and employer.

What is the Scottish government saying about homeworking?

The guidance that employees work from home where possible was due to be changed when Scotland moved to Level 0 on 19 July 2021. However, the government decided to delay this based on the rate of Covid-19 infections at that time.

Now, despite moving ‘beyond level 0’ on 9 August 2021, the Scottish government has once again refrained from changing its guidance on working from home. This means that the default position in Scotland remains homeworking where possible with the Scottish government going even further to advocate for this style of working:

‘We will encourage employers to consider for the longer term, as the Scottish Government is doing, a hybrid model of home and office working - which may, of course, have benefits beyond the need to control a virus’

Even still, the Scottish government has recognised that business needs may require some staff back into the office. So, what does this mean for employers and employees moving forward?

FAQs for employees

·         Can my employer require me to return to the office?

It depends. The Scottish guidance suggests that you should only return to the office if business needs require it and/or you cannot work remotely. Your employer might be able to insist on your return on that basis.

You should also be aware that your contract may expressly state where your place of work is to be, and that your employer can require you to work from the office on that basis.

·         Can my employer make me ‘check-in’ through a QR code using the Check-in Scotland app or its own system?

Though the “Check-in Scotland” app is recommended primarily for customer-facing businesses such as hospitality and tourism (see here for list), there is, in principle, no reason why an employer could not make use of this system.

·         What about routine testing?

Again, whilst your employer can ask you to be tested, this will be on a voluntary basis.

However, if you develop symptoms or have been in contact with someone who has tested positive, asking you to get tested would likely be considered a reasonable management instruction and so, if you refused, your employer could consider initiating a disciplinary process on this basis.

·         Will I have to work socially distanced?

The requirement for social distance will be removed when we move ‘beyond level 0’ on 9 August.

·         What about face masks?

The Scottish government has confirmed that face masks will remain a legal requirement in most indoor communal settings for the foreseeable future (unless exempt). However, the guidance does say that you will not have to wear a mask if you are separated from other employees ‘by either a partition or distance of at least 2 metres’.

FAQs for employers

·         What steps should we take to make sure we are complying with our health & safety obligations?

You should carry out a fresh risk assessment, taking into account the risks that coronavirus creates in the workplace and taking adequate measures to mitigate them. It will be important to communicate with employees and discuss what measures will make them feel comfortable when returning to the workplace e.g. wearing a mask at all times, health screenings, check-ins.

Depending upon your circumstances, you may want to warn employees that if they fail to comply with the measures that you have put in place, this may be treated as a disciplinary matter.

·         Can we ask staff about their vaccination status?

You can ask your employees to provide their vaccination status and you will be able to process and store this information so long you comply with your obligations under GDPR.

·         And can we prevent them from returning to the office if they aren’t vaccinated?

We have already seen some businesses say that they will make vaccination a condition of returning to the office (most notably Google in the US). In principle, there is not an issue with making this a condition of return, especially given that it can be justified on the basis of complying with your health & safety obligations. However, you must be careful in formulating a policy that complies with the EqA 2010 - certain employees may not be able to get the vaccine (e.g. for medical reasons) or may have not yet been offered it (if under 18). Failure to account for this in your policy may amount to indirect discrimination.

·         Can we ask staff to pause a tracking app such as Protect Scotland?

The NHS has provided guidance on this, setting out a list of circumstances in which it would be reasonable to pause tracing. See here.

Next time…

In our next blog, we look at the scope for legislative intervention and the future of homeworking.

Want to know more?

If you have any questions about returning to the office, please don’t hesitate to get in touch.