Strategies For a Return To Work: Phased Transition To a Different Type of Normality

There seems to be a broad consensus that more widespread remote working is here to stay, and that large-floorplate hot-desking offices in expensive city hubs may not be as desirable as they once were. Jes Staley, chief executive of Barclays, is on record as saying that large offices for banks “may be a thing of the past”. Nevertheless, almost all financial sector organisations will want to bring some staff back on site as soon as it is practical.

Even where the transition to remote working has been relatively smooth, there will always be some roles where it is no substitute for having a presence on site, or where it poses greater regulatory risk. Most organisations will also consider a return to the office to be positive way to boost client confidence and (if done safely) employee morale. As the first big bank to discuss openly a return to the physical workplace, JPMorgan’s operating committee has already circulated a staff memo saying that a “strategy for your return to work on-site is a key area of focus”, but that this will be done in a way “that prioritises your health and safety”.

The document also mentions that return dates will depend on “region, country and state”. This point is important because JPMorgan has operations in 60 countries. At the time of writing, New York, where the bank is headquartered, and Hong Kong, one of its multiple Asia-Pacific locations, are worlds apart in terms of their level of control over the pandemic.

Phasing in

UBS’s capital and consulting services division sensibly recommends hedge funds should phase in staff according to the importance of their working from a controlled company location. It suggests traders return first as they fall into the “highest operational risk category” and that portfolio managers and analysts also return as a high priority. JPMorgan is understood to have been keen to keep about one in five trading staff in the office well into April; together with other financial institutions, it was concerned about the need to ensure the close monitoring of traders. In the United States, however, the Securities and Exchange Commission and the Financial Industry Regulatory Authority have not required banks to ensure on-site staffing during the pandemic. Likewise, in the UK, the Financial Conduct Authority and the Prudential Regulation Authority have made it clear they are looking to use a light touch, and to give firms flexibility and latitude where possible. For example, the authorities have recently reminded businesses in the financial sector that in certain circumstances individuals are allowed to perform senior management functions without approval for up to 36 weeks in each consecutive one-year period.

When staff do begin to return, firms will need to reconsider almost every aspect of their usual procedures and expectations. The UK government is continually updating its guidance to employers, but it remains broad, and firms will need to think through carefully their specific needs and options, particularly to prioritise health and safety, as a fresh outbreak could require closures once more.

Safe working environment

Employers have a duty under the Health and Safety at Work Act 1974 to provide a safe working environment and ensure health, safety and welfare at work. Breaches of this provision are, however, likely to be hard for workers to prove in relation to COVID-19. Riskier for employers are protections, contained in ss 44 and 100 of the Employment Rights Act 1996, for employees who have a reasonable belief that they may be in “serious and imminent danger” if they return to work. This will also cover risks from, for example, a dangerously overcrowded commute. Firms will need to ensure that they do not breach the law in this area, but also remain prepared for the likelihood that there may be some complaints and claims.

The law also requires specific risk consideration for young people and pregnant women, and it will be important to consider other staff who may have a heightened risk. Failing to take into account a specific employee’s attributes (e.g., age or a disability) could constitute indirect discrimination.

Firms will therefore need to consider what to do with workers who are unable, or unwilling, to return, especially if government support provisions are phased out.

It is understood that, once staff do return, JPMorgan plans to halve the number using a given space, although it is unclear how practical this will be in the distanced workplace. Most obviously, firms will need to consider office cleaning, safety signage, and facilities such as sanitiser stations, but there are a number of other aspects they will need to think through.

Minimising interaction between staff by staggering access to shared facilities, perhaps making some areas out of bounds. Can meetings be kept online and, if in person, with the minimum number of people in attendance in the largest possible space? Similarly, when will external visitors be allowed into the building, and when will staff attend off-site meetings?

Giving staff confidence that they are both safe and important under the new plans, which (while it may not feel like a priority) is bound to affect longer-term retention and confidence. The UBS document recommends that firms “consider communications carefully” and “focus on how a person’s contribution is valued, the impact of their absence from office on revenue potential for the business”.

Creating a culture where staff feel both empowered and accountable to stay at home if they are unwell: any presenteeism or culture of “toughing it out” must change in the time of a deadly global pandemic. More support may also need to be in place for staff suffering from the heightened levels of domestic violence, problem drinking and gambling reported during the pandemic, all of which can be business and regulatory risks as well as employment issues, particularly for financial institutions and financial services firms. Ensuring processes are in place to monitor and respond to the situation.

Each financial sector business will have to make its own judgement calls and keep legal advice and government regulations and recommendations under constant review. COVID-19 will not disappear overnight, and it seems we are all in this — together or apart — for the long haul. There are, however, mechanisms being put in place to allow a phased transition to a different type of normality.