Martin Williams: Will a return-to-work policy pose risks for employers as Covid rules end?

How are we to frame the lifting of Covid-19 (Coronavirus) restrictions in the workplace? The virus is still with us and people are being admitted to hospital in a way they would not if this were the common cold.

All good employers will need to be mindful of the risks involved of workers being gathered together in the workplace. With Covid restrictions, employers had an official framework for managing the risks involved. Ideally, that framework should remain in place while the virus is still around, even if the government imposed restrictions are no longer a part of our lives.

It is tempting to return to normal, but the situation is anything but normal. If an employer takes down the safety signs, removes the newly acquired Perspex screens and says no masks should be worn, that will be good news for many people, but not all. Such a move is symptomatic of moving on and living with Covid, but it is also tantamount to ignoring it.

A blanket return to work is possible, but consideration has to be given to the workforce being made up of individuals. Various workers may have underlying health issues that make exposure to Covid a dangerous proposition.

There are additional responsibilities owed to those who are disabled as defined by the Equality Act 2010 and those who have underlying health conditions that make them more susceptible to severe illness if they catch the virus. Risk assessments should be carried out to work out what provisions need to be put in place to protect employees.

If the risk assessment points to someone continuing to work from home, then employers should make sure that happens. If it has worked for the past couple of years, there should be no detrimental impact. Allowing an employee to work from home, especially if they have done so successfully for the last two years will likely be seen as a reasonable adjustment.

Any employer who imposes a blanket office-based working only policy could face claims of discrimination or constructive dismissal in the Employment Tribunal. It is also worth considering that employee turnover is high at the moment, so prudent businesses which want to attract and retain good staff should be flexible.

If the risk assessment results in keeping workplace configurations in place, the employer should not revert back to a freer environment. Even if the pandemic converts to being endemic, consideration will still need to be given to those who are vulnerable.

Responsibility has been handed over to the population at large and that has to be taken seriously. Employers still have a duty to provide a safe place of work for their staff, so businesses should not see this as a green light to call everyone back to the office.

Martin Williams is partner and head of employment at Mayo Wynne Baxter