What do the new tiers now mean for office working?

As readers will know, on Tuesday this week Parliament approved Regulations establishing a new three-tier framework to replace the second lockdown. The new Regulations apply during the period from 2 December 2020 until 2 February 2021 and sit alongside several sets of guidance, all of which needs to be digested by managers when deciding whether, and to what extent, they can begin to bring staff back to office environments.

The legislation is detailed and complex. The key points, however, are as follows. 

• The restrictions on leaving home, which were a feature of the lockdown, no longer exist.
• The restrictions now focus on how many people can meet indoors and outdoors. The rules vary for each tier, but all tiers have the same exception for work.
• The work exception makes it lawful to participate in a “gathering” (which means being in the same place as one or more other person in order to interact with them) where “the gathering is reasonably necessary for work purposes”. 
• A separate exception exists for "permitted organised gatherings". That appears to permit any form of meeting on business premises (without the requirement to be reasonably necessary for work purposes), provided attendees participate alone and do not ‘mingle’ with others. It is unclear whether the Government intended businesses to be able to make use of the "permitted organised gatherings" exception for work, since, if that were the case, it would cut across the "reasonably necessary’" test set out in the exception for work. It is also unclear how one could be said to participate in a meeting “alone”.

Assuming most employers will focus on the work exception, how should they and their workers decide whether it is "reasonably necessary" to gather at work and whether an employee can attend the office even if not strictly "gathering" with colleagues? The best answer to that is likely to be to check the Government’s current guidance, the most relevant being the Covid-19 Winter Plan and the guidance for offices.

• The Covid-19 Winter Plan released shortly before the tiering system was introduced, said this (emphasis added):

"Working from home can reduce transmission. Between 24 April and 3 May, 36% of employees were working exclusively from home. These numbers declined as expected over the summer. However, since the Government renewed its Work From Home guidance in late September and through the period of the November national restrictions, the numbers working from home have remained relatively low compared to earlier in the year. SAGE advice is that typically over one third of contacts are made at work, that these are often of long duration and highly clustered and that homeworking can have a significant effect on reducing transmission if all those who can work from home do so. The Government encourages employers to enable a greater degree of home working, and will strengthen guidance to be very clear that anyone who can work from home should do so. The Government recognises that there are specific reasons why attendance in the workplace may be needed, including mental health issues or concerns; and / or a need to work on-site physically. In industries and sectors where working from home is not possible, including, for example, in much of the construction and manufacturing sectors, and where people’s jobs necessitate working in other people’s homes, businesses have taken clear steps to protect the health and safety of staff and customers through following Government guidance, making their workplaces COVID-secure, enabling staff to observe hands, face, space and adopting behaviours that will reduce transmission. In circumstances such as these, people should continue going to work."

• The guidance for offices, which has been regularly updated since its initial publication in May after the first lockdown, currently says this:

Objective: Office workers should work from home if they can. Employers should ensure workplaces are safe for anyone who cannot work from home.

"Office workers who can work from home should do so. Public sector employees working in essential services, including education settings, should continue to go into work where necessary. Anyone else who cannot work from home should go to their place of work. Employers should consult with their employees to determine who needs to come into the workplace. Extra consideration should be given to those people at higher risk. When employers consider that workers should come into their place of work, then this will need to be reflected in the COVID-19 workplace risk assessment and actions taken to manage the risks of transmission in line with this guidance."

It is perhaps surprising that the new Regulations have not addressed this question head-on, but the message is clear, at least from the guidance, that those who can work from home should continue to do so. The Winter Plan then separately recognises that a number of factors – including mental health - may feed into the assessment of whether someone can or cannot work from home, so employers should be open to having different arrangements for different individual employees, teams or departments. Where a sensible business case requiring presence in the office can be made out, that is very likely to make it "reasonably necessary" for the purposes of the new Regulations. Since breach of this legislation is a criminal matter, employers should ensure they keep a full document trail evidencing their decisions and reasoning in case of challenge.