Coronavirus - Returning to the office: back to normal? - UK

• United Kingdom

• Coronavirus - Return to work
• Employment law
• Privacy, data protection and cybersecurity - GDPR
• Real estate

04-05-2020

This week, the Government intends to set out its “road map” to “unlock the economy” and get people back to work. Therefore, in the not too distant future (hopefully sooner rather than later for the majority), businesses will be opening their office doors to welcome back their employees from the isolation of home working.

Landlords and occupiers will want this process to happen as seamlessly as possible. Assuming, as seems almost certain, that the lockdown will be lifted before the development and distribution of a vaccine, measures must be taken to avoid the resurgence of coronavirus.

The implementation and management of this process is going to be extremely challenging for landlords and occupiers, especially those managing and occupying multi-let buildings and estates. The “new normal” will need to adopt entrance protocols (perhaps including temperature testing), social distancing measures such as reduced lift capacity, meeting room protocols, and the staggered use of facilities including: kitchens, cycle stores and showers. After lockdown, steps will have to be taken to bring buildings up to operational level again. And all of this before the workforce can return.

Our industry is inventive and landlords, surveyors, building managers and facility managers will work together to devise solutions best suited to each building. So that these changes can be implemented quickly, their potential legal ramifications need to be looked at and planned for now. Below is a list of questions which will need to be dealt with:

How will this all be documented?

• The rules and regulations stating how a building/estate should run and how occupiers can use its common parts are often separately documented in regulations or a tenant’s handbook. Leases generally include an obligation on the tenant to comply with the current form of these. Landlords will need to amend the regulations or tenant’s handbook to allow them to enforce the new post-lockdown, socially-distanced rules. Landlords(indeed both parties) should review their leases to check whether any approval or consultation is needed, or other barrier negotiated to change the tenant’s handbook from either the tenant or any superior landlord.
• For the landlord to make any necessary alterations to the common parts of a building or an estate to implement the new ways of working, it will have to review the occupational lease(s) and any superior lease to check if consent is required from tenants or its landlord; and, if so, whether a licence to alter is required before works are carried out.
• It is likely that, in addition to the landlord’s post-lockdown rules, a tenant will also be implementing its own rules within its demise to allow for safe socially distanced working. A tenant’s solution will no doubt result in works being carried out, including the removal or installation of new partitioning and protective areas for visitors to the offices. Again, occupational leases should be reviewed to see if consent is needed from the landlord or the superior landlord. The completion of a licence for alterations can take a while, so tenants and landlords should start discussing these works and permissions now.

Who is responsible for what?

• Landlords are not always solely responsible for all the common areas in a building or an estate. For example, sometimes the toilets on a particular floor are demised to the tenants of that floor and plant within the demise might be the responsibility of the tenant to maintain.
• It is important that both parties agree and understand who is responsible for what so the appropriate checks can be made.

Who is going to pay for the Post-lockdown operation checks and alterations?

• Occupiers in a building or estate are usually responsible for a fair and reasonable proportion of the services that the landlord provides via the service charge regime. The parties will need to review the service charge provisions in the lease to see if the amendments and costs of implementing them will be covered by the regime and, particularly, whether there is a “sweeper” clause, which will allow a landlord to capture any costs outside the list of specific services. Landlords will need to be wary of service charge caps, because these new post- lockdown costs will probably be in addition to the usual annual costs incurred for a building or an estate. If it is clear that something falls outside the service charge regime, or if a tenant believes that it should not be paying for something as part of the services, the parties will need to try to reach a resolution, failing which they should contact their lawyers.

Does GDPR need to be considered?

• When considering temperature testing individuals before entering a building, consideration of privacy implications and compliance with GDPR is vital as ‘health data’ is strictly protected. Capturing an identified individual’s temperature on a testing device (even if the result is not recorded) as well as using that data for any purpose (e.g. making a decision not to allow entry to the individual) would be considered as “processing” data under GDPR, and the temperature information likely to classed as health data. Any business which wants to carry out such testing will need to consider the regulations. First and foremost whether it is necessary and effective for them to do such testing. The approach and technology adopted, as well as who conducts that testing, should then be considered so that personal data collection about individuals does not occur or is minimised. If personal data is necessarily going to be collected then a legal basis for that collection is required. Consent isn’t always available or the best option for this sort of personal data collection. Consent can be withdrawn at any time and if the individual does not have a genuine choice consent may be invalid. Reliance on an argument that testing is in the substantial public interest may be more successful but this still could be challenged in certain cases. Clear communication and fair processing notices will need to be provided to visitors and anyone testing will need to carefully consider minimising data collected and retained.
• The Information Commissioner’s Office has stated that it is there to help organisations and that a proportionate approach should be adopted with regard to data protection practices during the coronavirus crisis. Whilst this statement (issued in a blog post) offers some comfort assessing proportionality is challenging practically as it can only be done on a case by case basis. So far as health testing for coronavirus symptoms is concerned, the ICO has not issued specific guidance. However, its coronavirus guidance acknowledges that employers have an obligation to ensure the health and safety of employees, as well as a duty of care, and that data protection law doesn’t prevent them from doing this. Reminding that collection of special category personal information (such as health data) must be proportionate and necessary. In recent days we have seen some movement on temperature testing, though not consistently supportive, emerge from governments and data protection authorities in other European countries so further official views on this from the UK may emerge in the coming weeks.

What about the rights of the workforce?

Employment law should not be overlooked by landlords or occupiers in new workplace arrangements, as these will be directly relevant to the feasibility of those arrangements. In particular, where proposed alterations to ensure social distancing would result in new working arrangements for staff, it should be considered if, and to what extent, such arrangements can legally be imposed by the employer occupier and how they should be implemented to mitigate legal risk. Key points for employers include:

• What is the contractual position regarding requiring staff to work more flexibly? Are there express or implied terms supporting a requirement to change hours/location/role? Do changes require consent by individual employees/recognised unions?
• How will changes be implemented? Is there a requirement to consult on measures with any trade union H&S representatives? How can measures be applied reasonably, fairly and consistently?
• What if staff refuse to engage with social distancing/PPE measures? What action can/ should be taken?
• Do any adjusted workplace arrangements disproportionately impact vulnerable or disabled workers? What steps can/should be taken to address such impact?
• Where a phased or partial return to work is to be implemented, how will staff be selected for return? Are there any recognised unions that may need to be consulted?

Time to work together?

A successful and seamless transition from government lockdown to the new normal of social distancing at work will require collaboration, forward planning and innovation. Practical steps to implement the required measures are vital, but the legal complications must be dealt with now to prevent delay.

We can help. Contact us to discover how we can assist you during this vital phase on the road to recovery - and help you to open your doors.