With the end of most legal restrictions in the UK, employers have the green light to encourage their employees to return to office. However, the transition back to in-person work can be challenging, especially after many employees settled into the new normal of remote working. Certain groups of employees, such as mothers and those with disabilities, may have bespoke needs in respect of returning to the office. To prevent discriminatory outcomes and to build an inclusive workforce, employers should be attentive to their challenges and work with these groups to personalise their return to work.

Employees with disabilities

Despite the vaccine rollout, the risk of COVID-19 infection still looms. It is easy to see how employees with long-term health conditions, such as immunodeficiency disorders, asthma or generalised anxiety disorder, may have stronger concerns around regular commuting and working in shared spaces. Some of these disorders may be disabilities under the Equality Act and employers should be particularly wary of the possibility for claims of disability discrimination, including a failure to make reasonable adjustments. While some spaces, such as public transport, cafés or nearby eateries, are out of employers' control, there is a great deal an employer can do to minimise the risk of COVID-19 transmission in their office, as well as adjustments they can make to minimise any disadvantageous effects of returning to work on those with disabilities.

While employers may choose to make adjustments for anyone who expresses health concerns, they are legally obliged to make reasonable adjustments for those who are disabled in the eyes of law. The legal definition of disability is wider than many would expect, so employers should make careful assessments when an employee mentions a physical or mental impairment that appears to have a substantial/long-term negative effect on their ability to carry out normal daily activities.

Adjustments will depend on the particular concerns and needs of individual employees. As such, maintaining open dialogue with these employees is fundamental to identifying effective and proportionate adjustments to facilitate their return to work. To list some ideas, employees with disability may benefit from:

• continuing remote working for the near future;
• alternating between remote working and in-person work, depending on the local infection rate;
• halting hot-desking or reserving individual offices for a segment of the workforce; and
• having a reserved space for people who wish to minimise social contact.

Employers should also be cautious of associative discrimination. This can protect employees who do not have a disability themselves, but who are close to someone with a disability. For example, an employee with a family member with immunodeficiency may be hesitant to regularly come into more crowded settings or may need more time to look after that person.

Another consideration for employers arising from the pandemic is the approach to employees with long-term post-viral symptoms of COVID-19 (i.e. long COVID) and whether to treat the condition as a disability. Legal professionals along with the employee's medical history can help employers assess whether to treat long COVID as a disability, but employers should be alive to the risks associated with making that decision. This is a relatively new and unknown health condition and there has been a public push for long COVID to be automatically recognised as a disability. That has not happened yet but it will be important to keep an eye on any developments. 

Employees with child-caring responsibilities 

It is arguably unrealistic to expect parents to resume pre-pandemic childcare arrangements and return to work on the same basis they did prior to the pandemic. The pandemic disrupted the networks and infrastructure for childcare that allowed men and women to work as they did before the pandemic and family dynamics may have fundamentally changed in a year and a half. Despite changes in societal norms, it remains the case that women disproportionately bear the burden of childcare. Hence, it is likely that if employees are unable to find adequate arrangements, women may have the greater need for a remote-work option, reduced hours or may even have to quit a job in order to meet the demands of their families. This is not mere speculation - statistics suggest a real gender disparity: a survey of 2,300 workers in the UK revealed that 69% of mothers want to work from home at least once a week even after the pandemic, compared to 56% of fathers.

A blanket policy requiring a return to work may disadvantage women, who may be less able than men to resume their pre-pandemic working patterns and, in the worst case scenario, leave employers open to a sex discrimination claim if the knock-on effects cause a disadvantage to women specifically. Again, ongoing dialogue with female employees will be crucial to designing an inclusive return-to-work. To secure time for such dialogue and to give parents time to make suitable arrangements, it is ideal to give the workforce ample notice of your return to work plans and to ask for comments at the earliest opportunity. Employers may also need to consider new working arrangements, such as hybrid working or permanent remote working, and implement new policies to support such new systems of work. Setting up or encouraging a parents' network in the office may pave the way for organic support and exchange of resources. This may also help women feel less alienated in the return-to-work process and, in the long run, in juggling work and childcare.

Retaining diversity with remote or hybrid working

While remote or hybrid working arrangements may be effective adjustments for some women or those with disabilities, employers should be cautious about how such arrangements affect employees in the long run. Although it is unlikely that workplaces will be filled only with men or those without disabilities, offering remote or hybrid working arrangements to those who express concerns about returning to work (i.e. likely to be disproportionately women or those with a disability) may adversely affect the diversity of workers and potentially hinder career prospects for remote or hybrid workers.

Working from home while a sizeable number of colleagues are in the workplace may diminish one’s presence at work and attachment to the job. It could also limit opportunities to learn from and collaborate with colleagues which, in turn, may stall prospects for career advancement. It is conceivable that someone with a disability, who has no safe option but to work remotely, may feel disadvantaged if a promotion or a project goes to a worker who regularly interacted with those in charge. If remote or hybrid working is offered as an adjustment for women or those with disabilities, it is crucial to have measures in place to promote remote and hybrid workers' inclusion, whether for social interactions or for career opportunities.

While a return to the workplace may be great news for some, the pandemic is having a lasting and disproportionate impact on certain segments of the workforce. A blanket approach to the return to work may place such groups at a significant disadvantage. Listening to these groups and identifying viable and holistic adjustments for them would help to ensure a smooth and inclusive return to work.