The Government’s “work from home if you can” guidance for office workers may be dispensed with on 21 June 2021, to coincide with the anticipated end of the “unlocking” roadmap originally set out in February. In light of this potential development, we set out below our view of the key legal action points for HR to take in the year ahead.
Bringing all staff back to the office could present as many HR challenges as sending everyone home in March 2020. By 21 June, many workers who were – pre-pandemic – normally based in the office will have been working from home for close to 15 months. Coaxing, asking, or ordering them all back may not be easy.
Hybrid working, which for many office-based businesses is set to become the norm, could be more difficult to manage than either full time working in the office or full time working from home.
So, in an endeavour to assist HR teams with their forward planning for the challenges ahead, here is our 2021/2022 “legal to-do list”.
1. June 2021
A. Update health and safety risk assessments and policies
Most employers updated these in summer 2020 in anticipation of staff returning at that point, before the rise in cases during the autumn. They may not have been revisited since then.
Meanwhile, the scientific understanding of Covid-19 has grown, the vaccination programme has got under way, and lateral flow tests are available to employees and employers free of charge. Government health and safety guidance, if unlocking proceeds as planned, is also likely to change significantly in June 2021.
All this means that last year’s risk assessments are now out of date and need to be carried out again before staff return in significant numbers. An updated assessment of health and safety risks is likely to lead to new health and safety policies and in turn trigger a need to consult either health and safety representatives or staff directly with information about the proposed new policies.
Last year we published our 10-step guide to re-opening offices safely which discusses employers’ legal responsibilities for the health and safety of their staff and the steps they should take to ensure they are legally compliant with those responsibilities. This guide has now been updated and is available here.
B. Consider the impact of vaccination on health and safety policies
Many employers may be tempted to insist that staff are vaccinated before returning to the workplace, in order to reduce the risk of staff catching or transmitting Covid-19, but such a step would be fraught with legal difficulties. We explained these in our earlier article Is “no jab, no job” lawful? Can employers compel staff to be vaccinated at work? Your questions answered which is available here.
Since then, the Government has launched a formal consultation on whether care home staff should be required to have the vaccine as a condition of employment. Recent comments from ministers suggest all NHS staff may be within scope of this requirement. Whilst this may suggest a private sector employer with office-based workers could do the same, and this would be a lawful instruction to staff backed with the threat of disciplinary action for non-compliance, there is a counter-argument that this approach would be disproportionate. This is because the Government evidently did not see the need to pass legislation for other employers and there are very different considerations for those whose jobs do not involve frequent contact with the elderly and vulnerable.
C. Decide on whether to implement a covid testing regime
Rapid lateral flow tests are now available free of charge to anyone who wishes to get hold of them. This raises the question of whether employers should require or encourage tests to be taken by employees as a means of reducing the risk of transmission in the workplace. We discuss these questions in more detail here.
D. Don’t alter employment contracts just yet
Most employees will be engaged on pre-pandemic employment contracts, which specify the place of work as the office. In a smaller number of cases, flexible or agile working arrangements will have been agreed in individual cases or possibly across the board.
For the time being, we recommend that employers expressly preserve the existing contractual position – “your normal place of work is the office” – while employees transition back to work and everyone settles into the new working patterns that were enthusiastically canvassed during lockdown. This will mean that if everything is a disaster, or may be just a bit problematic, the employer will likely be able to fall back on existing contracts and insist that they are observed so far as attendance at the office is concerned.
E. Get ready to bring staff back to the office when the work from home guidance changes
Most employers have already announced their plans for transitioning employees back to work and are poised to implement them as soon as the “work from home” guidance changes.
At the time of writing, further uncertainty has arisen from the increase in prevalence of the Indian variant and there is now concern that restrictions on large indoor gatherings and the “work from home” guidance will continue for longer.
F. If the lifting of restrictions is delayed and the work from home guidance is continued beyond 21 June, consider whether to bring staff back under the current rules
If the work from home guidance continues beyond 21 June, employers will need to consider whether continued working from home is sustainable and whether some employees should be asked or permitted to return within the current rules. Those rules are part of the regulations which ban indoor gatherings of more than six people, subject to a range of exceptions, one of which allows working in the office where “reasonably necessary” for work purposes. This exception is elaborated upon in the guidance which says:
Office workers who can work from home should do so. Anyone else who cannot work from home should go to their place of work. However, you should consider whether home working is appropriate for workers facing mental or physical health difficulties, or those with a particularly challenging home working environment…
You should encourage a mix of home and office-based working where full home working is not possible.
Many employees have been returning over the past few weeks, and this trend may be set to continue as both employers and employees find it increasingly difficult to both run the business and to work entirely from home.
G. Consider flexible working requests
We anticipate that employers will see a rise in flexible working requests from employees in response to the move back to the office. All employees with at least 26 weeks’ service can submit a request under the statutory procedure for flexible working for a change to their contracted hours, working times and/or place of work.
H. Review the position of overseas workers
Our immigration team will publish a dedicated article shortly detailing what individuals, employers and sponsors need to think about and what action they need to take in relation to any non-UK employees, and what they need to consider in the year ahead.
There are a number of points on which employers, individuals and sponsors will need to focus, including:
2. July 2021 onwards
A. Introduce regular review periods
We recommend that new working patterns are subject to regular review periods, and that honest feedback is obtained across the board from managers and employees as to how everything is working. Our observation so far is that opinions on ideal working patterns vary wildly dependent upon the stage of career, home circumstances, travel distance and individual temperaments. We think that a consensus on the ideal pattern of work may be slow to emerge and indeed may never do so.
This could be a time for firm and decisive leadership from the top. But what sort of leadership is this? The media have been reporting on the very different visions which have been espoused by leaders in the City and beyond. For some, it means everyone back in the office full-time. For others, it means “we don’t want you back full time, even if you want to come back, because we no longer have room for everyone”. One employee commented that when they applied for their post-graduation job, they did not expect to be supplying their own office as well.
Our expectation is that after a few review periods have passed, it will be possible for management to determine the optimal pattern of working for the organisation and its people, and to be ready to commit to new binding contractual working arrangements. See below under 2022.
B. Plan for difficult employee relations issues
As the full return to the office gets under way (following a change in the regulations and guidance), we are predicting many conflicts of interest and employee relations problems.
Whilst it is not possible to predict exactly what form these might take, HR teams might find it useful to consider in advance various likely scenarios and how they might deal with them.
We think the following are likely scenarios:
The country dweller
A senior manager living in the country has found that remote working suits their lifestyle and sees no reason to return to commuting to the office for the minimum time requested by the employer as she considers she is doing her job (including managing staff) effectively from home.
This employee’s employment contract is likely to contain a clause specifying that the employee’s place of work is the office (provided it has not been varied – see above) and, in addition, the employee is required to comply with a reasonable and lawful instruction from the employer. On this basis, the employer can insist on the manager returning to the office, provided the instruction is not unjustified indirect discrimination (for example, in relation to women with childcare responsibilities), and does not entail unjustified health and safety risks.
A carer for a vulnerable family member
An employee is caring for his vulnerable wife at home and not willing to return to the office due to the risk it would pose of his catching the virus and transmitting it to her.
Similar principles apply here, but the risk of discrimination claims could be higher.
An employee is protected against unfavourable treatment on the grounds of their association with someone with a protected characteristic (such as disability), even if the employee does not suffer from a disability. There is a risk that requiring the employee to return could be an act of “discrimination by association” if the vulnerable spouse has a disability for the purposes of the Equality Act.
A Covid anxiety sufferer
An employee is extremely anxious; he had a family member die from Covid and does not feel comfortable working near others or commuting on public transport while the virus is still in circulation, despite having had the vaccine. He requests to continue working from home permanently.
Similar principles apply, and an additional point to consider is whether the employee could be protected against disciplinary action where their refusal to attend work is due to a reasonable belief that attending work would put them in serious and imminent danger. The reasonableness of an employee’s belief will depend on various things, including for example the Covid rate in the area, the steps the company has taken to minimise the risk and the employee’s personal vulnerability. Note that even where the level of risk within the workplace is low, the commute may provide a higher level of risk, making the employee’s belief reasonable in the circumstances.
If there is no reasonable belief in “serious and imminent danger”, disciplinary action should be possible, but the possibility that the employee is suffering from a mental health disability (which would require careful management) needs to be considered.
The long Covid sufferer
An employee caught Covid early in the pandemic and has been suffering from long Covid ever since, with symptoms of severe fatigue and trouble concentrating; he has been on sick leave for several months and is showing no signs of recovery.
We believe many employers are already facing this situation and are considering whether to depart from their normal sickness absence policies, to provide extra support to such employees. Legally, the position is no different from any other case of ill health (assuming the employer’s negligence did not cause the employee to contract Covid) and can be handled by the usual process of consultation, obtaining occupational health reports, and considering whether reasonable adjustments would enable the employee (who by now may qualify as a disabled person) to return to work. The employee’s entitlement to company sick pay will be as set out in the employment contract and they may be eligible for permanent health insurance/ill health early retirement if these benefits are in place. Dismissal on the grounds of lack of capability may be possible after following a fair procedure but this is very much a last resort.
An employee with mental health issues
An employee is struggling with anxiety and depression because of the pandemic and the prolonged isolation. The company has been understanding, but her performance is suffering as a result.
Mental health issues stemming directly from the pandemic are reported to be widespread.
If an employee’s performance is suffering due to poor mental health, the employer should approach it in a similar way to physical ill-health and should bear in mind the possibility that the condition may amount to a disability. Listen to the employee. They may have some ideas about what could help – for example flexible working, time off for counselling, use of an Employee Assistance programme or returning to the office. HR might suggest to the employee that you let their manager know how they are feeling – but be mindful that information about an employee’s mental health is sensitive and you should seek consent or make clear to the employee how and when it will be necessary for you to share the information. It may be worth consulting occupational health (or a more specialised adviser) for advice on any reasonable adjustments that need to be made.
Disciplining an employee who is mentally unwell carries significant risks of discrimination claims or claims for a failure to make reasonable adjustments. Such a situation is generally best dealt with through ill health management procedures.
Reluctant virtual worker
Over the last twelve months, the company has given up much of its office space and now requires employees to work mainly from home. One employee has come to HR to complain; her contract states that her place of work is in the office, so she queries whether the employer has the right to make her work from home permanently.
In the context of the pandemic, working from home has become a norm for many individuals and indeed most employees were required to work from home by the government. But Covid-19 created exceptional circumstances, and now that the rules are changing, employees may well be questioning whether they can be forced to work from home.
The first place to start is the employment contract. Does it provide for any flexibility in where employees can be required to work? If not, imposing home working most likely constitutes a variation in the contract for which the employer needs an employee’s consent.
Where an employee refuses to accept the change, the best alternative is likely to be terminating the existing contract and offering continued employment on the new terms (i.e. home working). Be aware that if you are proposing to dismiss and re-engage twenty or more employees, you will be subject to rules relating to collective consultation.
Arguably, the place of work is a fundamental clause of the contract and if you impose home working without consent (and without dismissal and re-engagement) you may be in breach of contract. In these circumstances, an employee could resign and bring a claim for constructive dismissal.
The overseas worker
An employee has been working abroad during the pandemic and now wishes to remain there as an international remote worker
If the employer is not happy about this, the legal position is similar to the scenarios above in that the employee can be required to return to working in the office in the UK along with other employees if the employment contract permits this.
The employee’s presence abroad may have given rise to several other legal issues relating to tax, social security, insurance, data protection and overseas laws.
For more information, please see our article on these issues here.
3. July – September 2021
A. Continue to monitor government health and safety guidance and update risk assessments and health and safety policies
By this time, assuming that the lockdown was lifted on 21 June as planned, there will be no legal restrictions on indoor gatherings thereby permitting everyone to return to the workplace. However, non-binding government guidance on safe working practices and travel during Covid may continue in force. This is legally significant, because a failure to follow the guidance could point towards a breach of the employer’s duty of care owed to employees in relation to their health and safety.
We are expecting government guidance on matters such as social distancing, mask wearing, layout of offices etc. to change often during this period. This will necessitate frequent updates to risk assessments, health and safety policies and Covid secure measures in offices. Do not forget to consult employees or their representatives regarding changes!
B. What about client entertainment?
Assuming restrictions are lifted on 21 June, entertaining clients and attending networking events, conferences and the like will be legally permitted. However, government guidance may contain advice on gatherings which employers should follow.
C. Postpone the staff party? (Or at least take it outdoors?)
The same considerations apply to staff parties. Whilst they may be legal, the employer must take reasonable steps to ensure the safety of those attending (even if the event is off site). In practice this will mean following government guidance. Hosting a large crowded indoor gathering at this stage may be unwise especially if younger members of staff have not yet been vaccinated. A more informal outdoor gathering may be a safer option.
D. Manage holiday requests
A slew of last-minute requests for holidays is predictable, as those who have been holding back taking annual leave in hopes of an overseas getaway give up and decide to make the most of the remaining British summer by holidaying in the UK. This may justify a pro-active approach by employers, for example by requiring employees to take holiday sooner rather than later and perhaps managing expectations around how many staff can take time off at one time. For further guidance on the legal position see our earlier article on holiday entitlements here.
E. International business travel policies
It is possible that the rules on international business travel will ease during this period, and so this may be a good time to introduce a new (perhaps temporary) policy on business travel setting out when and on what basis employees can seek approval for foreign business travel or attendance at foreign conferences. We anticipate returning to this topic in more detail as developments on travel unfold.
4. September – December 2021
We anticipate there will be a number of developments on HR’s radar come the autumn:
Managing the end of the furlough scheme
Under current plans, the furlough scheme is due to taper off and end by September. This will mean employers with furloughed staff will have to think about bringing them back or (if there is still little or no work for them by that stage) implementing changes to contract terms or redundancies. For our consideration of these points ahead of the originally anticipated end of furlough in 2020, see this article. We will revisit these issues in more detail closer to the time.
Review and update health and safety risk assessments and policies – again!
We believe now will be the time to review and update health and safety risk assessments and policies – again! – in light of how they have worked so far and in view of developments in the Government’s approach, such as the following.
Develop new policies on hiring overseas workers
Employers should also consider developing new policies on hiring overseas employees (both working in the UK and working abroad). Some employers have benefitted from engaging cheaper remote workers in other countries during the pandemic. Should this be made a permanent arrangement?
5. January – June 2022
A. Review the new agile/hybrid working arrangements
After several months in operation, we believe a review of the new agile/hybrid working arrangements will be essential to determine how effective they have been in practice. Following this review employers may feel the time has come to put new agile and hybrid working policies on a more formal (possibly even contractual) footing.
B. Collate information
Seek feedback from employees on the ground (at all levels of seniority) who are working within the parameters of your new policy, whether that is wholly office-based, or a hybrid of office and homeworking. Consider sending out firm-wide feedback forms and encourage managers to discuss issues and concerns during performance reviews. Any available financial and/or performance data will flag at an early stage whether productivity has taken a knock and client service levels could be suffering.
C. Identify emerging issues
Once available information has been collated, it should be straightforward to spot issues, whether these are practical (such as underestimating the number of employees returning to the office and requiring desk space), or less tangible (for example, a perceived lack of support or supervision for homeworking employees).
We foresee tricky issues arising over the interaction between office-based employees and those working more consistently from home. In particular, care should be taken to discourage the formation of office cliques, where employees at home may be left out of vital conversations or strategic meetings and allocated less stimulating work. It is a well-established argument that female employees are more likely to have caring responsibilities for children or elderly family members, for example. They are perhaps more likely to favour home-based working under a hybrid working policy as a result. Any disadvantage suffered (e.g. inferior work, lack of decision-making opportunities, or social exclusion) could quickly give rise to potential constructive unfair dismissal and/or indirect sex discrimination issues. Remote technology, including apps and video conferencing, should be used effectively and inclusively to promote collaboration within teams, wherever team members are located.
Business protection breaches should also be dealt with swiftly and robustly. A hybrid working policy should clearly document your expectations in relation to the protection of confidential business information and personal data, reiterating employees’ contractual obligations and related handbook policies. A failure to comply should be addressed through disciplinary policies and procedures.
D. Decide how the pay review is to be conducted
Pay review season 2022 may also be fraught with difficulty. Should employees who are working 80% of the time from their Yorkshire farmhouse continue to receive a London salary? What approach will be taken in relation to new joiners (whether UK employees or based overseas)? Will office-dwelling commuters argue for a larger share of the annual bonus pot? As ever, the pay review and bonus processes will need to be conducted holistically across your organisation, taking account of the usual individual and business performance requirements alongside any new hybrid working policy, and with an awareness of potential breach of contract, equal pay, or discrimination red flags. Any policy compliant home-based employees should not be individually penalised for perceived “absenteeism”, without justification.
We recommend that employers seek tailored advice should they face any of the issues outlined above further down the track in 2021 or early 2022. However, many potential problems may be pre-empted by transparent and effective communication with the workforce as new hybrid policies bed down.
It may become necessary for employers to pivot over time, moving away from generic policies to a more bespoke approach, where specific roles dictate the amount of time to be spent in the office or at home. Any such future developments may entail variations to employment contracts, therefore it will be important to consult with employees and manage expectations in order to minimise the risk of potential breach of contract claims.
A willingness to view new hybrid policies as a movable feast and subject to regular review is likely to stand employers in good stead for the future.
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