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:

• Managing the risks of COVID-19. All businesses will need to assess the risks to their workers and visitors and do everything reasonably practicable to minimise them.  A COVID-19 risk assessment will need to undertaken. This should assist to identify sensible measures to control the risks in the workplace. Businesses will need to consult with staff on health and safety and manage the risks by taking preventative measures. The results of the risk assessment must be shared with staff. Businesses should display a notice showing that they have properly assessed their risk and taken appropriate measures to mitigate this. The notice is to be displayed in a prominent place in the business and on the website. A link to the notice can be found here; https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/897765/staying-covid-19-secure-2020.pdf

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.

• Considering who should go to work. Businesses should consider whether employees can continue to work from home and where it is decided that workers should return to the office this will need to be reflected in the risk assessment and actions taken to manage the risks of transmission. People at higher risk need protecting and those who need to self-isolate must stay at home. Equality in the workplace must not be forgotten.
• Maintaining social distancing. The social distancing rule is two metres, or one metre with risk mitigation where two metres is not viable. This must be maintained wherever possible and will have an impact on nearly everything from arriving and departing the workplace, moving within the workplace, workstations, meeting rooms, break-out areas and common areas.  Mitigating actions include increased hand washing and surface cleaning, using screens or barriers, avoiding face-to-face working and reducing the number of people each person has contact with. Emergency situations will need to be considered and the guidelines state that social distancing does not have to be maintained if it would be unsafe to do so.
• Managing the contact between people. The objective here is to minimise the number of unnecessary visits to the office and ensuring people understand what they need to do to maintain safety. Steps needed include limiting the number of visitors at any one time and reviewing entry/exit routes.
• Increasing hygiene and cleaning and the use of face coverings. A clean and hygienic environment will help to minimise the risk of transmission by touching contaminated surfaces. The frequent cleaning of work areas and equipment and maintaining good ventilation are some of the steps suggested.  Businesses need to help everyone keep good hygiene e.g. provision of hand sanitisers, reminders about good handwashing techniques and more frequent rubbish collections. Wearing a face covering is currently not mandatory, though if some staff choose to do so, businesses should support them. 
• Managing the work force and the incomings/outgoing of goods. Businesses should look at work shift patterns and work-related travel and ensure staff understand and are kept updated with the COVID-19 safety procedures. Social distancing and avoiding surface transmission are required in relation to goods e.g. couriers, post coming into and going out of the office.

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:

• are permitted without landlord’s consent (usually non-demountable partitioning);
• require landlord’s consent (usually internal, non-structural alterations); and
• are prohibited (usually structural and external 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.

If you have any further questions please do get in touch with Amanda Gray, Amy O’ Gorman or any member of our Real Estate team who would be happy to assist you further.

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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.