Until now the mechanics of it - based on an assumption that Covid-19 restrictions will be in place on a return - have likely been the largest headache. One-way systems, socially distanced desks, rotating staff on the assumption a full complement being in the office at once is unlikely will have caused sleepless nights for those tasked with organising the return. In England though, most Covid-19 restrictions were lifted from 19 July. In Scotland, the current expectation is that most restrictions will be lifted by 9 August. So does this mean that a return to the office is now a bit more straight forward?
In reality though, the lifting of so many of the protections that have been in place at the same time as removing the "work from home if you can message" is likely to pique anxiety for vulnerable and anxious employees. Those who consider themselves more vulnerable to Covid-19 or who live with someone who, are more likely to focus on the unknowns - are they one of the people for whom vaccination won't work? How long will their vaccination remain effective for? What if another variant appears which can evade the vaccine? Matt Hancock's pronouncement earlier this year - apparently aimed at encouraging vaccination uptake amongst younger people perceived to be less at risk - that Covid-19 can "ruin your life" should it result in "debilitating long covid" means concerns may not be limited to older employees.
Of course, no one is anticipating an immediate and full return to the workplace. Indeed, many employees will see greater flexibility in their working arrangements than they would have dreamed possible 18 months ago. It also benefits no-one to have workers return to the office only for them to then be absent due to ill-health. Employers also need to continue to be mindful of their overarching health and safety obligations. The "pingdemic" that has taken place in England recently is also likely to have a significant impact given the proximity of employees in many workplaces.
Many employers are intending to return staff in phases and, in the first instance, seeking volunteers where workload planning allows is a common sense approach. Agreeing that the more vulnerable should return last also seems logical but there may be a difficulty in identifying who is more vulnerable. A healthy, double vaccinated, 59 year old, a single vaccinated 42 year old with mild asthma, or an unvaccinated 25 year old? While each employee's assessment of their vulnerability is a starting point, an individual's perception may not match what medical science suggests is likely. These are going to be difficult judgement calls for those that need to make them.
Some of those who are more at risk from Covid may also be disabled under the Equality Act 2010. Employers will need to consider reasonable adjustments for those individuals, which could include them continuing to work from home. However, it is also going to be necessary to be cognisant that those suffering from anxiety triggered by Covid-19 may also meet the definition of a disabled person. Employers must avoid making decisions based on judgements about how illogical or poorly founded that anxiety may seem to them.
The message from the UK Government regarding Covid-19 is pretty clear - we are going to have to learn to live with it. Although case numbers are currently high, vaccination does appear to be rendering Covid-19 a low risk to the majority of the population and if the NHS is not overwhelmed it stops being a public health problem. It will though remain a personal problem for many and while case numbers are high HR departments are likely to encounter significant reluctance from some employees to return to the office imminently and others may struggle to see how they can do so even in the longer term.
Dealing with employees who are unable to return to the workplace for health reasons - be they physical or mental - is not new. Absence management has always been a significant part of people management. As employment lawyers, we see cases where everyone involved is keen for an employee to return to work but it becomes clear that they are unable to do so. For some the consequences of Covid-19 will put them in this position.
As with any other long-term absence from the workplace, or inability to perform the requirements of a role, fair and non-discriminatory dismissals may be the end result. Following fair procedures including consideration of alternative roles and working arrangements, taking occupational health advice, making reasonable adjustments (where disability is an issue) and good communication/consultation with the employee will be essential. Employment tribunals are likely to be sympathetic to employees who are dismissed in these circumstances so employers need to consider whether they can reasonably hold the employee's job open for any longer before dismissing. These outcomes are not what anyone wants - handling them with fairness and sensitivity is both a legal and a moral obligation.
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