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Returning to the office - employment liability considerations for directors and their insurers

Returning to the office carries risks of health and safety litigation and reputational harm.

With government restrictions easing and workers being encouraged to return to the office, directors and officers should take care to ensure that the process is managed carefully to minimise any possible liabilities.

According to a survey by the Office of National Statistics, 46.6% of people in employment worked from home at some point during April 2020, the first full month of the coronavirus pandemic. Of those people, 86.0% did so as a result of the coronavirus. Read the full report "Coronavirus and homeworking in the UK: April 2020"

A more recent YouGov survey of 1,061 senior business decision makers found that 24% will permit working from home at least one day a week going forward, up from 17% before the pandemic.

How many staff members work from home at least some of the time?

While flexible working is becoming available to an increasing number of people on a permanent basis, as workers return to the office in greater numbers it is important that the process is properly planned and managed. Returning to the office carries risks of health and safety litigation and reputational harm, for example if a business suffers a large number of COVID-19 cases/positive test results following a return to office working, potentially triggering investigation by the Health and Safety Executive and impacting on client relationships, business reputation and employee satisfaction.

To manage this, directors and officers should consider updating health and safety risk assessments, reviewing the number of first aiders and fire marshals, encouraging appropriate hygiene practices and engaging with employees who raise concerns early on, to minimise the risk of those escalating. Employees should be encouraged to follow government advice with respect to self-isolating and provision should be made for those advised to isolate longer, such as those who have not been double vaccinated.

Employers should not ask about employees’ vaccination status unless operating in a setting where certain vaccinations (or appropriate exemptions) are required, for example, the NHS or care homes (from 11 November 2021 under the Health and Social Care Act 2008 (regulated Activities) (Amendment) (Coronavirus) Regulations 2021).

Failure to manage these issues effectively could lead to employment claims or other liabilities which may go on to trigger notification to employment liability and/or D&O policies. Underwriters may therefore wish to consider more carefully the processes and policies that businesses have in place to manage these issues when assessing proposals for cover.

For further guidance, please visit our directors and officers service page.

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