That’s the question facing many employers and indeed, many local authorities, when restrictions permit it. As lockdown restrictions have flexed, some councils may have returned to partial office-based working while others have continued to work from home.
However, we’re all aware that returning to the office during this pandemic is not as simple as unlocking the door and switching the lights on. Any employer needs to take planning seriously, not only to support staff safety and wellbeing but to ensure compliance with relevant legal obligations.
For a local authority, there are a few steps that can be taken to ensure a safe return to the office and minimise risk to both the local authority as an employer and its employees.
The first step – though it may be more apt to call it the 'continual' step – is risk assessment. This is often where I find that clients seek our input. While employers may have already done risk assessments, the key point to remember is that risk assessments need to be under continual review. With our knowledge of the virus and its spread changing so frequently and government restrictions changing to keep up, risk assessments can go out of date rapidly. So once a risk assessment is done it is important to keep it under review once it has been implemented.
In the case of local government, risk assessments should include consultation not only with employees but also with their relevant trade unions. Otherwise, there is a risk of breaching agreements with unions about consultation on health and safety matters. And while an employee couldn’t necessarily bring a claim about not being consulted about a risk assessment, if there was a separate claim, like one for personal injury or disability discrimination, and the employer hasn’t consulted properly on the risk assessment, an employer could face increased liabilities.
Equally, if an employee is reluctant to return to an office and they cannot work from home, the employer will be in a better position to insist on a return if they can show that they done a thorough risk assessment which has included consultation with employees.
A further element for employers to consider within risk assessments is the commute. Whilst employers would not normally include commuting in a risk assessment, with restrictions on travel and the safety of public transit being under extreme scrutiny, the commute should now be a significant part of an employer's assessment of risk to the employee. The outcome of this may involve the employer looking at alternatives like staggering start times or having a rota in place to allow employees more flexibility with the commute, provide reassurance and minimise risk.
Once the risk assessment process is in place and the local authority is satisfied with the scope of it, I’d recommend seeking input from an occupational health professional about individual cases. This input can support with decisions about individual employees where there are health concerns such as pregnant employees and those with underlying health conditions. Employers should consider this for any employee who has particular health concerns even if they haven't been classed as clinically vulnerable.
There are also two sides to this coin, as some individuals may be viewed as able to return but not wish to due to health concerns, and there may be some employers who would prefer to keep the employee at home or furloughed but the employee is eager to return to work. Either of these situations could lead to claims of disability discrimination if the employer makes assumptions about the employee’s ability to return to work based on their health, and therefore, expert advice from an occupational health professional and an individualised risk assessment will best protect both the employer and employee in these instances.
Occupational health professionals can make excellent recommendations to employers on safe return and making workplaces safe for employees where the risk may have initially seemed too high, so enlisting support should reap positive rewards throughout this process.
For any employer seeking to bring workers back into offices, it’s important to note that while you can’t eliminate risk fully, you can manage it safely. The way forward – at least during the pandemic – will be through regular consultation, repeated risk assessment and ongoing flexibility with individual circumstances.
Sarah Gilzean is an accredited specialist in Employment Law and Discrimination Law on the public sector team at Morton Fraser