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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. 

With the guidance to “work from home where possible” now fully lifted, many employers are considering how and when to bring their employees back to the office.

However, a lot has changed since those same offices were deserted in March 2020 – prompting many employees to redefine what they want from their jobs and the ways in which they work. 

For some, working from home has been a life-saving shift – so why go back to the old way of doing things just because restrictions are lifting?

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Of course, raising questions like these isn’t always easy – and you’ll need to know where you stand when it comes to your rights before you enter into any conversations with your employer.  

So, to find out more about your rights when it comes to returning to the office – as well as the rules around tests, vaccine certificates and self-isolation – we asked Emma Williams, employment solicitor at the Midlands law firm Higgs LLP, to give us a quick rundown. Here’s what she had to say. 

Can you be forced to return to the office?

Whereas previously you could not be ‘forced’ to return to the office except in cases where your employer believed that you couldn’t complete your job from home, the removal of the “work from home where you can” recommendation makes things a little trickier.

“Employers and employees need to look at their contracts,” Williams explains. “If there is a place of work clause which states that employees should work in the office, that will generally be enough for employers to force a return. If an employee refuses to return to the office it could, ultimately, be deemed an unauthorised absence and disciplinary action could follow.”

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However, just because employers now have more powers to require employees to return to the office, doesn’t mean you can’t speak up if you’re feeling unsafe or worried about their request.

“I do envisage there being a large number of legal challenges from reluctant staff,” Williams says. “The employer needs to provide a safe working environment and some employees may well argue that they feel they are facing a serious and imminent threat to their safety.”

She continues: “Here, cases will need to be dealt with between employer and employee on a case-by-case basis.” 

Can you 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 you 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 some younger workers are also still waiting to get their second vaccine 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. 

Are you 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! Even if your employer has asked you to return to the office, you also have the right to ask for a flexible working arrangement if you’ve worked at the company long enough.

“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.

“An employee may well argue that their performance hasn’t dropped since working from home began and, therefore, they should be able to remain at home,” she continues. “There is also some talk from the government about making working from home a right in the future.” 

Once you’ve submitted a request for flexible working, Williams explains, your employer must give it “reasonable consideration” before delivering a response. 

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“The employer must 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.” 

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

Can you be forced to come into work if you come into close contact with someone who has tested positive for Covid-19?

Now that the rules regarding self-isolation have changed, if you’ve been double vaccinated, you may still be asked to come into work in this situation.

“As of Monday August 16, anyone who has received a double vaccination and is a close contact of someone who has tested positive for Covid-19 is no longer, according to government guidance or regulations, required to self-isolate,” Williams explains. “Therefore, in this scenario, there is no legal right for you to choose to self-isolate and you can be required to attend the workplace by your employer.”

She continues: “However, we are aware of businesses who are concerned that if that close contact subsequently tests positive, they could potentially pass the virus on to colleagues and lead to a large proportion of the workforce testing positive and being forced to self-isolate.”

“In that situation, the business may request that the close contact self-isolates – at least from work – until they can provide a negative PCR test.”

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