Whilst the country has been trying to emerge from lockdown, the government advice for employers that employees should work from home if they can remains in place.

A couple of weeks ago we started to hear murmurs that was soon to change. Indeed, in media interviews regarding the difficulties that town and city centre buinesses are facing due to the lack of footfall of office workers, both the Prime Minister and Michael Gove unofficially commented that employees should start heading back to the office to help the economy.

So it was not a huge surprise when, in his update from No. 10 on Friday, Mr Johnson said that the advice to use alternative modes of transport to public transport was being lifted immediately and from 1 August employers will be able to ask employees who have been able to work from home since the lockdown to return to their workplace, provided necessary steps have been taken to ensure the workplace is coronavirus secure and social distancing measures are in place.

However, Mr Johnson stated that employers will have the discretion to decide how their employees can work safely which may include continuing to work from home.  He went on to say that employers should consult with their employees and only ask them to return if it is safe to do so.

In short, the options open to an employer (subject to the necessary precautions and social distancing measures being in place) are: to keep employees working from home; to offer employees the option to return to the office; or to insist that all employees return to the workplace. 

Where employers do decide to instruct employees to return, matters will not be straightforward and will present legal risks. Consideration will have to be provided to, for example, those employees who are struggling to source the normal provision of childcare; employees who are vulnerable or who live with vulnerable persons; and arguably, despite the government's somewhat sudden encouragement to get onto public transport, those employees who rely on public transport to get to work.

Whilst some companies will welcome the government's grant of discretion, asking employees to return to work will need to be carefully considered and, given that it is at the employer's discretion, we can see employees challenging such decisions.

If you have any questions about returning employees to the workplace, please do contact the employment team at Kemp Little LLP.