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What Does the Delayed Easing of Coronavirus Restrictions Mean for Charity Employers?

on Tuesday, 06 July 2021.

Following the Government's announcement that 'step four' of the coronavirus lockdown will be delayed until 19 July 2021, to control the spread of the Delta variant, we explore the key implications for charity employers.

Should Employees Still Work From Home?

The main consideration for charities is that the guidance for employees to work from home, if it is possible for them to do so, remains in place. Therefore plans for staff to return to the workplace will need to be placed on hold until 19 July if it remains possible for them to work from home.

What If Working From Home Isn't Possible?

If working from home is not possible, then employees can be required to attend work to perform their duties. Charities should ensure that they have the necessary risk assessments and COVID-secure measures in place to include the continued use of face coverings and social distancing to reduce the risk of transmission. The advanced stage of the vaccination programme will also help to mitigate risk.

How Can We Prepare for Restrictions Being Lifted?

The decision to defer the easing of restrictions provides additional time to liaise with staff, who may have been working at home for well over a year, about their return to the workplace. For some this will be a welcome return to normality, whereas for others it could be a source of concern. Good communication is key to addressing these issues and understanding the reasons why an employee might be reluctant to return. These could include concerns over their health, childcare arrangements, a perceived negative impact on work/life balance, a simple preference for home-working or concerns about the costs of commuting after foregoing this expense for the last year.

It is important for charity employers to address these issues in a consistent and considered way. Thought should be given as to whether a requirement to work from a specific location or under a set work pattern could have an indirectly discriminatory effect on any particular group of employees. If one group of staff could be particularly disadvantaged by the requirement, an assessment should be undertaken in relation to whether the requirement can be objectively justified as a proportionate way of achieving a legitimate aim, or if there is an alternative solution that could achieve that aim in a way that is less impactful on those employees.

What About After 19 July? (Or Later If Delayed Again)

At Step four, the Government hopes to reopen remaining settings and lift all restrictions.

We await further guidance on how exactly this will affect employers, but in theory this will mean that businesses including charities will be able to return to 'normal' conditions.  

That said, we would recommend caution and keeping up-to-date with any guidance issued, as the Government have made it clear that coronavirus will remain a part of our lives. It is recommended that charities review their own risk assessments and continue appropriate measures to comply with their duty of care to staff and manage the anxiety that some employees may feel. This might take the form of reducing the number of staff in the work place at one time, improving ventilation, allowing staff to commute outside of rush hour and promoting social distancing through revision to the work environment or the way tasks are undertaken. 

What About Requests To Work From Home or More Flexibly Going Forward?

Downing Street has confirmed that it is considering the introduction of a specific right to request to work from home. Despite much publicity around this potentially being a default right to work from home, it's important to highlight the distinction between a right to request and an absolute entitlement. The information available suggests that this would be a right to request and therefore does not appear to move the position on significantly from the current law in relation to flexible working.

This gives employees with 26 weeks' continuous service the right to request to work more flexibly in relation to: 

  • how many hours they are required to work
  • when they are required to work
  • where that work is done

It is the latter option that already permits requests to work from home.

Given the relative success of remote working during the pandemic, many employees may wish to make permanent changes to their place of work or work pattern.

Can We Require Employees To Continue Working From Home, at Least for Part of the Week?

Many charity employers may now be considering introducing home or hybrid working as a permanent feature of their workplace. This might be in response to a staff engagement poll, due to increased productivity, to save on office costs, or to widen the recruitment pool. Whatever the driver, a change in place of work will amount to a variation of the employee's contract of employment, unless the contract already has in-built flexibility to permit home working.

What Is Hybrid Working?

Hybrid working describes an arrangement where employees attend the workplace for part of their working time and work from home (or elsewhere) remotely for the rest. Hybrid working can be distinguished from exclusive home working because it involves some work from the charity's workplace.

Hybrid working is a form of flexible working, but if the employer's proposal is not aligned with the employee's desired arrangements, the employee could still make their own flexible working request to implement their preferred working arrangements.

Coronavirus guidance employers

How Should We Deal with Flexible Working Requests?

Once a valid request has been received from an employee, the charity:

  • must deal with it in a 'reasonable manner'
  • must notify the employee of its decision within three months or such other period as may be agreed
  • may only refuse the request if it considers that one or more of the statutory grounds for refusal applies, ie the burden of additional costs, detrimental effect on ability to meet service user demand, inability to re-organise work among colleagues, inability to recruit additional staff, detrimental impact on quality, detrimental impact on performance, insufficiency of work during the periods the employee proposes to work and planned structural changes

What Are the Risks of Declining a Flexible Working Request?

As mentioned above, charities will need to be mindful of potential indirect discrimination issues that could arise if a request to work from home or on an amended work pattern is refused. This is particularly relevant where the request is made by a female employee to help accommodate childcare, as this could lead to a claim of indirect sex discrimination. This is because a greater proportion of women remain the primary carer for children than men and therefore would be more disadvantaged by a policy that prevents flexible work arrangements that could support childcare responsibilities.

An unreasonable response to a flexible working request could also give rise to a constructive unfair dismissal claim.

Is It Mandatory for Employees Returning to Work to Be Vaccinated?

Proposed legislation means that from October, anyone working in a CQC-registered care home in England for residents requiring nursing or personal care must have two doses of a coronavirus vaccine, unless they have a medical exemption. This is subject to Parliamentary approval and workers will have a 16-week grace period from it coming into force to get vaccinated. It does not appear that mandatory vaccination will be rolled out any further at this stage.

So far this legislation is only intended to apply to those working in a CQC registered care home, and will apply to all of the following workers:

  • all workers employed directly by the care home or care home provider (on a full-time or part-time basis)
  • those employed by an agency and deployed by the care home
  • volunteers working in the care home
  • individuals coming into care homes to do other work such as tradespeople, and therapists

Some charities operating care homes have welcomed the proposal while others have raised concerns that it will result in staff shortages. It is unclear at this stage how the requirements will be policed but it does raise a number of employment law implications if employees refuse to be vaccinated or to disclose their vaccination status. We will provide more information on the no jab/ no job debate as the situation develops.

How We Can Help

If you have any questions on the issues raised in the article above, or would like advice on  flexible working arrangements, we are running a free webinar on 'Managing employees in a changing world' on 8 July 2021. Sign up for free today.

For any more information, please contact Jo Oliver in the Charity Law team on 07909 547537, or please complete the form below.

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