22nd September 2020 – Boris Johnson encourage employers to continue with home working arrangements through the winter in an effort to stem the rising tide of covid 19 cases, which could hit 50,000 new cases a day in October if the current trend continues unabated. He also announced a 10pm – 5am curfew on pubs and restaurants.
In updating .gov FAQs on what people can and cannot do (see section 6 for workplace) and elsewhere in .gov guidance the government makes clear that there should be a consultation between employer and employee about whether the employee can carry out their normal duties from home.
What does consultation mean in practice?
It’s been the case for several weeks now that employers are under a duty to carry out a covid-19 risk assessment and to take steps necessary to make workplaces covid-safe in order to require employees to return safely, but that requirement related to an era where government advice moved from ‘work from home if you can’ to ‘get back to the office.’ Now that we’re back to ‘work from home if you can’ the official advice to consult about homeworking implies that employers should actively discuss the possibility of ongoing homeworking with their employers.
‘consultation’ means an exchange of information and a consideration of views and opinions prior to making the final decision, in this case on whether home working is possible or not.
In certain scenarios (e.g. redundancies) there are penalties for failing to consult (e.g. up to 90 days pay) but there is no suggestion (yet) that covid homeworking consultations will be bound by law.
What if it isn’t possible?
If homeworking is genuinely impossible then the emphasis switches back to making sure the workplace is covid-secure. Manufacturing and hospitality jobs are largely impossible to do from home; but the vast majority of office/support jobs are possible from home despite the protestation of many employers.
Clinically vulnerable individuals can continue to attend the workplace if it is COVID-19 Secure, although they should work from home if possible. The FAQs also now explicitly advise that anyone with COVID-19 symptoms should not go to work, but should self-isolate and take a test. It also states that employers will be banned from requiring self-isolating employees from coming into work, although it is not clear if the government intends to make this a legal requirement.
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