All content on this page is correct as of July 16, 2020
With the continued easing of lockdown restrictions, and the emphasis on getting people back to work in order to revive the struggling economy, businesses everywhere are turning their thoughts to how they can return to the offices they left behind in March. In this article we explore the Government’s guidelines for doing this in a safe manner.
The Government’s guidelines
The Government has a suite of 14 guides covering a range of workplaces (such as offices and contact centres, shops and restaurants). They are designed to help employers, employees and the self-employed understand how to work safely and support the health and wellbeing of staff.
The two guides most relevant to the office sector are: “5 Steps to Working Safely” and “Offices and Contact Centres”.
These provide detailed guidance on the following:
Failure to complete a risk assessment which takes account of COVID-19 or completing a risk assessment but failing to put in place sufficient measures to manage the risks of COVID-19 could constitute a breach of health and safety law.
The key message from the guidance is that the health and safety of the workforce is paramount for any return strategy. A COVID-19 risk assessment will be the starting point for identifying what adjustments should be made to ensure the risk of transmission of the virus is minimised within the office environment. The risk assessment will need to be continually reviewed to ensure that the procedures businesses put in place are working and to keep abreast of government guidance.
The impact on the office space
Businesses will need to look at their office space with new eyes. The requirement to maintain social distancing wherever possible means that the hot desking trend we saw prior to the coronavirus situation is likely to be reversed.
It is probable that there will need to be more physical separation in place. For example, separate rooms, partitioning and screens may be required for people to work together at a safe distance. Many businesses will find that a reconfiguration of the office space will be required.
Where a business occupies premises as a leaseholder they will need to consider the terms of the lease to determine which type of alterations:
The costs of obtaining landlord’s consent are usually borne by the tenant. If alterations are required to make the office space safe, the hope is that landlords and tenants will work together flexibly and quickly to ensure this is done.
Freeholders have free rein to make whatever alterations they want within the law and regulations.
The impact on the common parts of the building
Landlords will likewise need to prepare the office building. A re-think of the common parts is inevitable. Everything from the entrance hall, the lifts and stairs, the building’s café and all the “back room” facilities such as the bike, shower and toilet facilities, post room and the security room will need to be considered. Landlords may also be asked to provide services outside of the normal business hours as tenants ask their staff to come in at different times. Technology has a part to play here, whether it’s by using sensors to open doors, monitoring the density in a building or using traffic light system for the staircases. All of these changes and additional services come at a cost.
Landlords are likely to look to the service charge to re-coup the costs from the tenants for the additional measures. The terms of the individual leases will be the starting point for determining whether landlords can recover such costs or not. Things to watch out for include service charge caps and items excluded from the service charge. However, as most leases will contain a general sweeper clause allowing for landlords to recover costs for general estate management, it is likely that tenants will be required to contribute towards these increased costs.
The recent Government-issued rent code of practice acknowledges that there may be additional service costs required and that management fees should reflect the actual work carried out in managing the services and service charge during the COVID-19 situation.
Collaboration between landlords and tenants
Both landlords and tenants face the challenge of protecting the health and safety of all who use or visit the office building. It is important for the parties to work together reasonably and collaboratively in order to attract the workforce back.
The tenant, as employer of the office workforce, will be responsible for ensuring that its demise within the building is safe. The landlord also has a part to play as owner of the building and common parts.
The level of detail in the two guides is daunting but we are here to help both landlords and tenants. We can offer two fixed fee packages – COVID-19 lease review and COVID-19 rent concession review – to help you plan a return to the office click here.
This information is necessarily of a general nature and doesn’t constitute legal advice. This is not a substitute for formal legal advice, given in the context of full information under an engagement with Bates Wells.
All content on this page is correct as of July 16, 2020.