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Work after coronavirus: what are your rights when it comes to returning to the office?

Can your employer force you to return to the office? And what are your rights when it comes to negotiating a flexible contract? We asked an expert to explain all. 

As lockdown restrictions ease again and more areas of society begin to open up, you might have started thinking about the process of returning to the office.

If you’ve been working from home for the last year, getting back into the swing of things can feel like a pretty big step. 

Everyone has different opinions and preferences when it comes to office-based, home or flexible working, and finding a ‘new normal’ which works for you can feel like a pretty daunting prospect as a result.

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So, what are your rights when it comes to returning to the office? And what do you need to know if you’re interested in negotiating a flexible working arrangement

We asked Emma Williams, employment solicitor at the Midlands law firm Higgs & Sons, to answer some of the most commonly asked questions when it comes to returning to the office. Here’s what she had to say. 

Can I be forced to return to the office?

Because the official government advice remains that you should work from home “where you can,” if you’ve been able to do your job from home throughout the pandemic, your employer cannot force you to return to the office. “That is the default position and is currently in place until step four of the government roadmap, which is due to come into force no earlier than 21 June,” Williams explains.

The only exception to this rule is in cases where your employer believes you can’t fully complete your job or tasks from home – but even then, your employer is still expected to do their best to facilitate working from home, including providing adequate equipment.  

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And even if you do need to be in the office to do some parts of your job, that doesn’t mean your employer should be forcing you to be there all the time. “There should be some flexibility around being in the office for one or two days a week and working at home for the remainder of it,” Williams adds.

The other kind of adjustments you should expect if your employer does require you to go into the office include help to avoid busy times and routes on public transport, extra consideration if you’re at high risk and making your workplace Covid-19 secure.

Can I be forced to provide a negative test at work? 

A coronavirus swab
Work after coronavirus: “Employers can make lateral flow tests available, but employees can only be encouraged to take part in that programme.”

While your employer is within their rights to make testing available at work, you shouldn’t have to produce a negative test before you’re allowed back in the office.

“Employers can make lateral flow tests available, but employees can only be encouraged to take part in that programme,” Williams explains.

If your employer does introduce testing and you decide to take part, they must ensure they follow data protection law and only use the results to identify those who need to self-isolate/are positive for Covid-19. 

Can I be forced to provide a vaccine certificate at work?

In most circumstances, Williams explains, it’s “extremely difficult” for your employer to ask you to provide proof of your vaccine status at work.

“People may choose not to take the vaccine for a number of reasons, and many younger workers are also still waiting to be invited for their appointment as the government roles out the vaccinations.”

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Williams continues: “With that in mind, forcing someone to prove their vaccination status to carry out their work opens all kinds of discriminatory arguments.”

Your vaccine status (and wider health data) also amounts to Special Category Data under GDPR, so your employer would need a good reason to request this kind of information.

With this in mind, if you’re yet to be vaccinated but need to return to work, you should be allowed to return. 

Am I allowed to ask for a flexible working arrangement post-pandemic? 

Writing a letter
Work after coronavirus: after 26 days in a job, you are allowed to request a flexible arrangement.

Yes, you can! Although after 21 June your employer will currently be allowed to ask you to return to the office (although this date, like all the other roadmap dates, is subject to change), you also have the right to ask for a flexible working arrangement.

“From a statutory point of view, any employee who has 26 weeks of continuous service can submit a request for flexible working, which could be an amendment to the number of days or hours worked or the option to work from home for some or all of the week,” Williams explains.

“The employer must give reasonable consideration to this request and provide a formal response within three months of the request being submitted. If the request is rejected, a business reason as set out in the legislation must be provided.” 

She continues: “There is no legal requirement on the employer to accept the statutory request nor any requests that fall outside the statutory provisions (such as requests from employees with less than 26 weeks continuous service), but they must also avoid discrimination in their response.” 

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The reasons why an employer is allowed to reject a flexible working arrangement include extra costs that will damage the business, that flexible working will affect “quality and performance” or that the business will not be able to meet customer demand as a result.

It’s worth noting that, even if your employer says they’re currently in the middle of formulating their hybrid working policy, they still have to respond to your request within the three-month period.

For more information about flexible working, including how to formulate a request, you can check out our guide here

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