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Achieving a ‘COVID-secure’ workplace: Property law implications

22 May 2020

The Government has recently released its Guidance for employers and businesses on staying open safely during COVID-19 and ensuring workplaces are ‘COVID-secure.’

In this article, the Property Group considers the Property law implications of safely returning to work with a particular focus on office environments. However, it should be noted that some of the principles will have a wider application to other workplaces.

The new Guidance aims to set out both good practices and high-level principles for businesses to follow and avoids an overly prescriptive approach. It remains the case that for now businesses should still make every possible effort to enable working from home as a first option. Where working from home is not possible, the Government requires that businesses make every effort to comply with social distancing guidelines.

Type of property

The Property law implications of implementing the Guidance will to some extent depend on type of premises being occupied and the basis on which those premises are occupied. For instance, if an occupier owns the freehold to the property from which it occupies, it is likely to have the greatest amount of control in implementing changes in order to comply with the Guidance. On the other hand, others will occupy their premises under a lease or licence and such premises may form part of a larger building shared with other occupiers. Such arrangements may place limits and restrictions on the approach those businesses can take.

For those occupying under a lease or licence, it is that document that will govern the occupier’s rights and responsibilities in respect of the property. It is therefore necessary to review and consider the terms when deciding on how best to implement the Guidance.

It may, in some circumstances, be necessary to liaise with the landlord together with other occupiers of the building when implementing changes, particularly where the changes necessarily relate to areas used in common with others (e.g. communal hallways/staircases, lifts, receptions area, cycle areas, shared toilets etc). Indeed, ensuring a safe working environment for employees that is fully compliant with the Government’s Guidance does not stop at the boundary of the premises only. Consideration should be given to the wider building or Estate of which the property form parts.

Adequacy of existing property

In planning for a return to the workplace, businesses will need to consider the adequacy of their current premises and any spaces it shares with others. With the Government now advising against the use of public transport, the need for increased car parking and cycle spaces should be considered. Depending on the basis under which the premises are occupied, occupiers may wish to consider installing or making such provision or entering into discussions with the landlord about the possibility of putting such extra provision in place. Landlords may be willing to do this to protect the investment value of their building. Some buildings will struggle to meet these requirements which may depress their open market rental value.

Businesses will need to consider their occupational needs both in the short term and long term. It may be impractical to bring all employees back to work at once whilst maintaining social distancing. If that is necessary however it may require some businesses in those circumstances to temporarily acquire additional space. Recent research shows that staff density ratio in the Docklands area of London stands at 104 sq ft per person on average, more than 20% below the minimum threshold to maintain social distancing. Conversely, some businesses may see it as an opportunity to reduce their occupational requirements, and ultimately their costs, perhaps by exercising break clauses, under-letting or otherwise disposing of all or part of their existing premises by assignment or negotiating a surrender with the landlord.

Reconfigurations and alterations required to workspaces

The Guidance refers to the use of screens or barriers to separate people from each other and the use of back-to-back or side-to-side working (rather than face-to-face) whenever possible. Implementing such Guidance may therefore require reconfiguration of workspaces.

Where premises are held under a lease or other occupational agreement, there may be restrictions or limits on reconfigurations of the premises or alterations required to achieve reconfigurations. For instance, to create extra space, occupiers may wish to remove glass walled offices or move desks further apart. In a shared office environmental, it is possible that businesses may be prohibited from erecting such screens or other barriers or even from moving desks.

It could also be necessary for a tenant to obtain a landlord’s consent before carrying out such works. Leases will often prohibit structural alterations and permit internal, non-structural alterations but only with the landlord’s consent. Where consent is required or alterations are prohibited, it is advisable to engage with the landlord at an early stage.

When carrying out any alterations, occupiers should also remain alive to the fact that other statutory consents, including planning, building regulations approval and listed building consents may be needed depending on the works being carried out.

Effective signage

The Guidance refers to the use of signs and posters to build awareness of good hygiene. Some businesses may wish to use directional and other signage to ensure that social distancing can be maintained and new arrangements understood. Indeed the Guidance suggests finding ways to remove direct contact, such as using drop-off points or transfer zones. Clearly, signage and other communications are going to be a useful reminder for workers to adopt such practices in the workplace.

Sometimes the display of signage will require the landlord’s consent or may even be prohibited. Such restrictions will likely apply where such signage is to be located outside of the property being let. Even where some types of signage are expressly prohibited, it would be prudent to engage with the landlord who may be willing to permit such signage on a short-term basis particularly given the circumstances.

Other restriction in leases

Leases often include other restrictions which may be of relevance when considering which arrangements should be implemented. For instance, the lease may include restrictions on the hours within which occupiers may operate from the premises or limitations on the hours the landlord is to provide services such as heating and air conditioning. Such a restriction may be inconsistent with staggering start time of employees which is a further recommendation in the Government’s Guidance. Occupiers may wish to discuss how the landlord may be able to assist in achieving those objectives.

Compliance with laws

Most leases require a tenant to comply with all ‘laws.’ The exact meaning of ‘laws’ will depend on the terms of the lease, but this will often include Government-imposed Guidance and requirements insofar as they apply to a property and its use and occupation by a tenant. In implementing the Government’s Guidance in the workplace, occupiers should remain mindful of its broader duties in needing to comply with all ‘laws’ including, for example, those under health and safety legislation as well as those under the Equality Act 2010 which requires that reasonable adjustments are made so that a disabled person is not put at a substantial disadvantage in accessing a workplace or service.

Common Parts and the Landlord’s obligations

The Common Parts of a multi-tenanted building includes those areas used in common with other tenants, they will usually not form part of the property being let and will be responsibility of the landlord. Often leases will require a tenant to observe any additional regulations introduced by the landlord relating to their use of the building. It is possible that the landlord may seek to introduce restrictions on entry in the interests of good estate management and minimising the spread of the virus. A lease will often require that such regulations are provided to the tenant, however, it may be worth discussing with the landlord in advance their proposals in relation to a building. This will allow occupiers to develop a more cohesive strategy which ultimately benefits all of those in the workplace.

Ultimately, increased cleaning and changes to how the landlord operates or runs the common areas may lead to the landlord’s costs increasing. Such costs will often be recovered from the occupiers in the building through a service charge. Occupiers may wish to review their leases to see exactly which costs can be recovered by the landlord and also engage with the landlord on anticipated increases in its expenditure and budget accordingly.

The health and safety of employees will be businesses’ primary aim during the pandemic. However, as this article demonstrates, businesses should be mindful of the property law implications of implementing the Guidance and ensuring that such arrangements are appropriate to the type of premises being occupied.

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