Businesses and employees face a balancing act as the return to office work begins – Ben Doherty

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Ben Doherty is a Partner and Head of Employment Law at Lindsays

With the relaxation of the Scottish Government’s work from home guidance, I firmly believe that the majority of people asked to begin going back will adapt quickly and cope well.

As we evolve, however, the simple fact to keep in mind is that, over almost two years now, working at home has become the norm for so many of us, myself included. We have rebuilt personal and professional routines to strike the best balance. Many for the better.

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The thought of redrawing arrangements once again – even only for a limited number of days – will doubtless feel like a drag to some.

That being said, we know that working from home is not without its challenges. We have all heard of or know people who have struggled on many levels from not having colleagues physically next to them, for example, or working in a shared flat. It has posed real issues for some businesses in managing teams too.

So, whether you are anxious about a partial return to the office – due to ongoing fears about coronavirus, personal arrangements or any other factor – or itching to get back to as many hours as possible in the office, there are lots of things for us and our employers to consider.

But, while the practical picture may be complicated for some, the legal one is relatively straightforward.

If your contract of employment states that your office is your place of work, a request for you to go to that office is a reasonable one. It’s an instruction that you would fairly be expected to follow.

You would, of course, be well advised speaking to your employer to see if you can reach a compromise if you have any concerns surrounding that.

For those who, for whatever reason, are ultimately not happy with their working arrangements, they can make a flexible working request which their employer should consider, albeit that they do not have to accept. Any successful request would result in a change to the employee’s contract of employment.

The dilemma for employers is whether to accept a flexible working request, whether that be for reduced or compressed hours, full-time home working or anything else.

Ultimately the needs of the business need to be the driving factor behind any decision.

A less flexible approach may, however, make it more difficult to retain good people in your company. If an order is made for everyone to return to the office – or a request for flexible working is turned down – there is a chance that some may look elsewhere for work that is more flexible and suits their wishes.

These situations present a delicate balancing act – morally as much as legally – particularly at a time when it’s still so hard to predict what the future may hold, with rules adapting to the prevailing pandemic conditions.

Just days before the updated home working guidelines came into play, another major legal change affecting employers was around the emergency legislation brought into effect surrounding self-certification.

In December, the UK Government announced that employees could self-certify sickness absences for 28 days as part of measures to allow GP surgery staff to focus on the Covid-19 booster roll-out.

Those measures came to an end on 27 January, returning to the regular seven-day self-certification rule (although if an employee started sick leave before 27 January, they will still only need to provide a medical certificate for their absence once it reaches 28 days).

While this is a move which has been welcomed by the businesses we work with, allowing them to revert to their normal absence management arrangements – just in time for the change in advice for hybrid in-office and remote working – it is another example of the challenges that businesses are having to juggle.

For anyone managing returns to work in whatever circumstances at the moment, my advice is straightforward: Just be fair. By showing support and understanding for your colleagues, you will work your way sensibly through the challenges faced.

Ben Doherty is a Partner and Head of Employment Law at Lindsays

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George Holan

George Holan is chief editor at Plainsmen Post and has articles published in many notable publications in the last decade.

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