Can UK banks adopt a Morgan Stanley-style approach to returning to work?

Morgan Stanley chief executive James Gorman’s stance on staff returning to its New York office is summed up succinctly: if you can go to a restaurant in New York city, you can come into the office. This is the latest example highlighting the disconnect between bosses who are keen for an immediate return to the office and their reluctant workforce who would prefer to retain home-working privileges. According to the Office for National Statistics (ONS), more than a third (36%) of people in the UK think they can keep working from home for most of the working week.

Many UK banks had expected to return staff to the office as of June 21 this year. While these plans were delayed by UK prime minister Boris Johnson’s announcement extending lockdown easing by a further four weeks, it seems that in the short- to medium-term at least, such a return is unlikely. Transmission rates of Covid-19 remain high in the country, despite the success of the vaccination programme. Public health experts predict a further strain on NHS resources this autumn owing to patients impacted by long-Covid symptoms. There is also concern over the reduced effectiveness of Covid vaccines against certain dominant strains of the virus that could lead to future spikes of patient hospitalisation. This would be further compounded by predicted high rates of influenza because of a reduction of the population’s immunity as a result of recent lockdowns.

In the longer term, leaks from Whitehall suggest there are plans being drawn up to keep workers who can do so continuing to working from home, with rumoured legislative reform to allow for a default right to work from home. No detail has yet been released by the UK government.

For the time being, adopting a policy requiring workers to return to the office would be contrary to current government guidance that “you should continue to work from home where you can”. Further, forcibly returning staff risks damaging morale, the employer’s reputation and its ability to retain and attract talent.

Mandatory vaccination

Whether or not employers can impose mandatory vaccinations on their employees has been hotly debated since the controversial Pimlico Plumbers boss Charlie Mullins coined the term ‘no jab, no job’. In short, mandating staff to be vaccinated depends on the job the worker performs and whether it is proportionate for such a request to be made by the employer.

Proportionality means ensuring that any instruction is no wider than is necessary, and exemptions must be included where appropriate — balancing the rights of the individual is key. Workers may consider that mandatory vaccination conflicts with their rights under the Human Rights Act 1998, for example, if it infringes on their right to respect for private and family life.

For a frontline health worker dealing with members of the public, the case for mandatory vaccination is stronger than for a bank worker who has largely (if not wholly) worked from home since March 2020, and whose job does not require face-to-face interaction with the public.

An employer bank may argue that mandatory vaccination is necessary to ensure a safe workplace under the Health and Safety at Work Act 1974. But, this would have to be balanced against the rights of the individual in regard to the reasonableness of the employer’s instruction, taking into account factors such as the worker’s role, the risk they pose if they are not vaccinated and current government guidance.

Mandating vaccination is likely to alienate those who are already vaccine-sceptic. In its March 9 report, the Scientific Advisory Group for Emergencies sub-committee that advises the government on behavioural aspects of Covid-19, found that there were key sociodemographic factors influencing vaccine adoption intersecting with broad characteristics, such as age or race. According to ONS data, vaccine hesitancy was highest among non-Asian black, Asian and minority ethnic individuals, and is lower in younger age groups. Additionally, there are socioeconomic factors that can limit vaccine uptake.

While social class is not a protected characteristic under the Equality Act 2010, age, race, religion and disability are. If mandatory vaccination is imposed and an employment tribunal finds that it has a substantial adverse impact on these groups, when compared to persons who do not share that particular protected characteristic, the employer will likely face a finding of discrimination unless it can show that the requirement was necessary to achieve a legitimate aim, such as ensuring a safe place of work. To succeed, the employer would have to show that it considered potentially less discriminatory alternatives and that the measure it adopted was the least discriminatory of all the available options.

Discrimination awards in the employment tribunal are uncapped and can be brought against named individuals, such as managers requiring a return to the office.

There is a further consideration for employers considering keeping records of workers’ vaccination status under current data protection legislation. Health information about an individual is special-category personal data, and an employer can only process such data on certain grounds under the UK General Data Protection Regulation. Before embarking on data collection, it is important for the employer bank to conduct a risk assessment to help identify and minimise data protection risk with regard to the necessity and proportionality in collecting that data.

Pia Sanchez is a senior consultant at law firm CM Murray.