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21 October 2020
Regulations underpinning the three-tier lockdown system are now in force in England as part of the government's efforts to step up its response to the pandemic. This article considers whether the new regulations will demand a stricter approach to office work and meetings.
On 22 September 2020 the government changed its guidance for office workers in England and advised that they work from home over Winter 2020. However, the guidance was clear that office workers could go to work if they could not work "effectively" from home.
Some employers have found that many employees want to keep going into the office for a variety of reasons, ranging from the need to look after their mental health to the lack of a suitable work set up, equipment or resources at home. Some of these employees are going into the office every day, whereas others are going in occasionally when there is a specific need. It is relatively typical for an employer to leave it up to individual employees to decide whether they need to be in the office, not least because employers want to avoid making judgments about sensitive reasons for wanting to go back to work.
Recently, the position on whether employees should go to the office or stay at home has been a matter of government guidance. Under the original Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 in March it was a criminal offence to travel for work purposes if it was "reasonably possible" to work from home but this restriction was lifted with effect from 1 June 2020 and since then the question of whether office workers should go to work or stay at home has been a matter of government advice rather than law.
On 12 October 2020 the government announced a three-tier system of restrictions in England. These are now underpinned by three new sets of regulations, made on 14 October, for tier one, tier two and tier three.
The regulations ban indoor and outdoor gatherings to varying degrees. For example, the 'rule of six' applies to indoor gatherings in tier one, whereas all indoor gatherings involving people from different households are banned in tiers two and three. Participating in a banned gathering is a criminal offence, punishable by a fine. Fixed penalty notices can be issued to individuals who participate in a restricted gathering, payment of which discharges their liability to a criminal conviction. Fixed penalties start at £200 for a first offence, which is reduced if paid early.
There are multiple exceptions to the ban on gatherings, including for gatherings that are "reasonably necessary" for work purposes. If a work gathering falls within this exemption, it is allowed within all three tiers, there is no upper limit on its size and it does not matter whether it takes place indoors or outdoors. Organised gatherings on business premises involving people who participate alone or in groups that do not mingle are also exempt (whether or not the gathering is reasonably necessary).
Instead of dealing with travelling to work (as the original regulations did), the new regulations put the focus onto gatherings. This raises the question of what a 'gathering' means and when it might be "reasonably necessary" for work purposes.
The question is not particularly important in many work contexts. For examples, if an employee works in a shop or on the production line in a factory, it is clearly reasonably necessary for them to go to work, so whether they are participating in a gathering at work is less relevant as they will fall within the exemption in any event. The position with offices is more complicated because many employers have been permitting attendance if the employee considers that they cannot work from home effectively, without requiring any evidence that attendance is reasonably necessary.
The reasonably necessary test has led some employers to query whether the government is tightening the rules on office working and if they should be changing their position to prevent employees coming to the office unless this passes a necessity test. This has become a particularly urgent question in London and other districts that have now entered tier two restrictions as of 17 October 2020. Unfortunately, there is no clear answer and it may depend on whether the employee is coming to the office just to get work done or to attend a meeting.
The first key question relates to going to the office simply to work. Does this involve participating in a gathering? According to the regulations, a gathering takes place when two or more persons are present together in the same place in order to engage in any form of social interaction with each other or undertake any other activity with each other. However, arguably an employee who goes in to the office merely get some work done is not there to interact with anyone else who happens to be in the office – they are just working at their desks. If that is right, attendance at work in a COVID-secure office is not participating in a gathering. Alternatively, it is possible that going to the workplace does involve participating in a gathering but that employees are permitted to do this (whether reasonably necessary or not) as long as they do so alone. If either of these interpretations is correct, attending work does not need to be reasonably necessary and it continues to be a matter of government guidance rather than law. This may be what the government intends since their guidance on going to work has not changed. For example, the guidance states that office workers who can work "effectively" from home should do so and the government has not changed its guidance to introduce a reasonably necessary test.
What about meetings between colleagues at the office? If they count as gatherings in which employees are no longer participating alone, they cannot take place indoors unless reasonably necessary (or within the rule of six where tier one restrictions apply). A meeting seems much more likely to fall into this restriction than simple attendance at work, but if there is to be a distinction between going to work and having a meeting with colleagues at work, it is going to be very hard to police. Groups seated at distanced tables in a restaurant may be unlikely to mix to form a gathering, but office workers are much more likely to do so.
Finally, there are events such as client meetings to consider. Meetings between employees and clients or other third parties seem even more likely to count as gatherings in which employees are no longer participating alone so they probably need to pass the reasonable necessity test (or rule of six where tier one restrictions apply). Police enforcement may be unlikely but employers will want to avoid encouraging any unlawful behaviour.
Unfortunately, it is even more complicated if an employee lives in one tier but works in another. The rules essentially follow the employee, so if the employee lives in a tier two or three area but travels to a tier one area for work, they must comply with the higher restrictions.
If workers can work effectively from home, they should be doing so, and employers should not encourage or ask workers to come into the office in these circumstances.
However, employees who cannot work from home (due to reasons including a poor working environment at home, insufficient equipment or resources and mental wellbeing) can still go into the office. This is provided that employers have done their risk assessments and made the workplace COVID-secure. It seems possible that simply working in the office does not involve a group gathering at all, but even if it does, the risks seem to be very low if the employee wants to go into the office and has an arguable case for reasonably needing to be there. Therefore, employers do not need to close their offices.
However, it seems that in-person meetings may now be banned unless they are reasonably necessary (or fall within the rule of six in tier one). Internal meetings involving employees who are all in the office anyway seem very likely to be reasonably necessary (as alternative solutions are limited), but employers should avoid calling anyone into the office specifically for an internal meeting unless this passes the reasonably necessary test. Client meetings are now more difficult and planned meetings may need re-thinking. The key question is whether to leave it up to individual managers to decide what is reasonably necessary or whether to impose a form of process or rules to avoid clearly unnecessary meetings from taking place. Whatever approach that employers take, they should make certain that meeting rooms are COVID-secure.
In practical terms, it seems that employers should be taking a tougher line on in-person meetings than on employees going into the office to work by themselves. If the meeting could be held effectively online, then it is not reasonably necessary and employers should not be encouraging such virtual meetings to take place.
Finally, it should be emphasised that the new three-tier system applies only in England and different rules are in place in the rest of the United Kingdom.
For further information on this topic please contact Shalina Crossley, Colin Leckey or Gemma Taylor at Lewis Silkin by telephone (+44 20 7074 8000) or email (firstname.lastname@example.org, email@example.com or firstname.lastname@example.org). The Lewis Silkin website can be accessed at www.lewissilkin.com.
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