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Returning to the office – What are your rights?

December 3, 2021 Employment

Trainee Solicitor Carli Cooper recently took part in #SolicitorChat with the Law Society, answering some of the most frequently asked questions surrounding workers returning to the office and what there rights are. You can read her answers here:

If you have been anywhere close to the city centre recently you will have noticed the packed buses and empty meal deal shelves as the march back to the office begins. Since the 9 of August, the Scottish Government has allowed a gradual return to the office as many legal COVID restrictions were removed.  This will have come as a relief for many employers. There’s no doubt that remote working gave many employers the flexibility they needed to continue their business operations during the pandemic and for many employees, remote working improved their work-life balance. However, some employers have real concerns about the long-term impact on their business, such as home distractions, lack of staff collaboration and difficulty monitoring performance. From a legal stance point, employers can insist their employees return to the office and there are many justifiable reasons for them doing so. However, home working will continue to be an important mitigation for controlling the virus beyond Level 0 and the Scottish Government have requested that businesses continue to support employees to do this, where possible. Employers should also plan and implement a return to office-based working that cares for their employees and their well-being. Planning should be based around appropriate risk assessments and safe systems of work, emphasising precautionary measures such as continued use of facemasks, continued compliance with Test and Protect and outbreak management to manage and mitigate outbreaks in the office.

Some workers will be anxious about a return to the office. A recently YouGov survey found that 57% of workers wanted to be able to continue working from home all or part of the time. However, employees are not automatically entitled to flexible working unless the arrangement is part of their employment contract. However, there are however a number of things that you could do if you feel that you are being put at risk by returning to the office. If you genuinely feel uncomfortable or unsafe, you could make a statutory working request. To have a statutory right to ask for flexible working arrangements, you must have worked for your employers for 26 consecutive weeks on the date you make your application.  If your employer refuses the request, there are rules on how you can make a claim in the employment tribunal. However, you shouldn’t jump the gun. Many employers have in place their own scheme for asking for flexible working. If you are not sure about this, you should ask your employer or look in your staff handbook. Alternatively, you could seek other changes to your working environment, such as one-way systems, back-to-back working or staggered journey times.

Ultimately, employers have a duty to manage workplace risks under Health and Safety law in addition to the specific regulations set out in the Coronavirus Regulations. Anxious employees can therefore request their employers make decisions on a thorough COVID secure risk assessment. If your employer dismisses your requests, your options include contacting your local authority, the Citizens Advice Bureaux or the Health and Safety Executive.

Employees are entitled to time off work to help someone who depends on them in an unexpected event or emergency. This includes situations related to coronavirus. You might be able to get help such as pay from your employer or time off without using your annual leave, if your child’s school is closed for example. You have more rights if you have to take time off work to look after someone who’s self-isolating. You might be entitled to a self-isolation payment of £500 from your local council if you’re employed or self-employed and you’ve lost income because you can’t work from home. To get the payment you must be self-isolating at home for one of these reasons: you need to care for your child who in under 16 and was told to self-isolate by their school. You need to care for your child who’s on an Education, Health and Care plan, is under 26 and was told to self-isolate. There is no statutory right to pay for this time off and the amount of time off an employee takes to look after someone must be reasonable for the situation. Your workplace might offer employees more entitlements for dependants than the legal minimum, so it’s a good idea to check.

While vaccination has not been made mandatory at a government level, employers can encourage their workforce to get the vaccine. This is because employers across all setting are obliged to take reasonable steps to reduce any workplace risks under the Health and Safety at Work Act 1974. Encouraging the uptake of the vaccination among employees to protect themselves and everyone else at the workplace is one way to reduce the risks. If an employer shows that being fully vaccinated is the most reasonable practicable way of mitigating the risk of coronavirus, having carried out a risk assessment, they could in theory mandate being fully vaccinated as a health and safety requirement.

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