COVID-19: What does lifting 'Plan B' mean for employers?

With the Omicron wave believed to have passed its peak nationally, the Government has confirmed that 'Plan B' restrictions in England will be lifted.

These changes are set to be staggered in the weeks to come, with some guidance effective immediately, alongside a long-term view to end self-isolation by, or before, 24^th March 2022. As organisations, yet again, adapt ways of working it is important that employers remain flexible, particularly in an environment where staff morale and retention are in sharp focus. With effect from 20 January 2022, the guidance for staff to work from home if they can, will no longer be in force with workers being encouraged to talk to their employers to agree arrangements. Whilst this may be welcome news for some, it is important that employers are aware of certain risks before imposing a mandate requiring homeworking staff to return to their workplace.

• Indirect discrimination - A requirement that all staff return to the workplace, even for a certain number of days per week, may put those with certain protected characteristics at a disadvantage. It is important that employers think about how any indirect discrimination risks may be objectively justified, particularly in light of how the working landscape has changed over the last two years; what may previously have been a proportionate, legitimate business aim may not necessarily be so as we live with the pandemic. It's especially important that employers consider the impact of this change on those with certain medical conditions or disabilities.
• Discrimination by association - Employers should also consider staff with caring responsibilities. Imposing a requirement to be office-based may indirectly put informal carers at a substantial disadvantage because of their association with someone with a disability. ONS data demonstrates that one in five people aged 50-69 are informal carers, so this is an important issue for employers to consider to reduce the risk of claims for discrimination by association.
• Flexible working requests - Employers should anticipate a likely increase in flexible working requests. Any employee who has worked for an organisation for at least 26 weeks, and who has not made a flexible working request in the previous year, is entitled to put in a flexible working request. These requests might include a change to working hours or the location. Whilst organisations have a duty to consider requests fairly, they can be refused if there are genuine business reasons for doing so. These will have changed during the course of the pandemic. Employers need to think now and make decisions around how flexible working requests will be handled following a re-opening of offices. Policies should be reviewed and updated too.
• Health and safety - Employers are under a duty to provide a safe working environment for all staff and should be carrying out regular workplace risk assessments. This will not change as Plan B is lifted. It's important that employers are aware of official Working Safely with Coronavirus guidance which remains in force and encourages employers to take certain measures including improved ventilation, additional cleaning and providing Personal Protective Equipment to staff and visitors in settings where this is necessary.
• Retention and workforce morale - In a market where staff retention is key, employers should be mindful of the message that mandating a return to the workplace will send. Many employees will have enjoyed the benefits that working from home can bring, including to physical and mental wellbeing. Employers may want to avoid a 'one size fits all approach' and remain flexible in its approach to office based working. Returning to the office may also require employers to take steps in ensuring that the process is as comfortable as possible, with many people perhaps feeling apprehensive or nervous about returning.