While enjoying some rest and relaxation over the last month, your thoughts will no doubt have returned to the possible HR problems associated with the big Return to the Office that many companies have scheduled for September.
You will not be alone. Some people will be delighted to be back in the office, and others will have a “Sunday evening” feeling magnified several times over at the thought of commuting, crowded offices and being close to colleagues they’ve been happy to collaborate with remotely for the past 18 months.
With that in mind, the Fox Williams’ employment team have turned COVID “agony aunt” for this edition of HRLaw with timely advice to HR professionals on the burning questions for employees as they face the reality of the new normal.
Your CFO, Ash Hawthorn, has left you an angry voicemail. He has just read the latest draft of the company’s hybrid working policy (from a deckchair in his orchard) and there is no way he can comply with the minimum three days in the office it envisages. He has only just managed to perfect his new cottage garden after nearly 18 months of WFH. His wife, Willow, is convinced the local wildlife will destroy his handiwork the minute he starts commuting again and leaves the garden unattended. He wants to come to the office twice a month instead, arguing that his entire role can be performed from home anyway, as the last 18 months have clearly shown.
What should you do about argumentative Ash?
Employers can start to implement a return-to-work plan now. The UK Government is no longer instructing anyone to work from home, although it recommended a gradual return over the summer. The company’s hybrid working policy is therefore in line with the current guidance.
The first sensible action which the company should take is to have an open discussion with him about his concerns. The company should inform Ash of its reasons as to why it will be implementing the hybrid working policy and why the company feels it is important for Ash to return to the office three days a week. It may be that the company is happy to reach a compromise with Ash in respect of his future hybrid working arrangements.
If Ash has been employed by the company for more than 26 weeks, he will have the legal right to make a flexible working request to request to change his working pattern to working from home attending the office two days each month. Ash’s voicemail does not constitute a formal working request, but Ash may seek to make a request should the company disagree with his proposal.
If Ash were to make a formal flexible working request, the company should follow the ACAS Code of Practice on handling flexible working requests as well as any applicable internal policies. The company will have three months to make a decision, unless this period is extended with the agreement of the employee. The company may only turn down Ash’s request for one of the following business reasons as set out in legislation:
the burden of additional costs
an inability to reorganise work amongst existing staff
an inability to recruit additional staff
a detrimental impact on quality
a detrimental impact on performance
a detrimental effect on ability to meet customer demand
insufficient work for the periods the employee proposes to work
a planned structural change to your business
If the company is satisfied it can rely on one of the business reasons above then it should be able to refuse Ash’s flexible working request.
If Ash continues to resist the company’s new hybrid working pattern, and his reasons for doing so only relate to his new cottage garden, then his actions would amount to failure to follow a reasonable and lawful instruction from his employer and/or a breach of the clause in his employment contract requiring him to attend the office. The company may decide to take disciplinary action against Ash, should it feel that this is appropriate. The company should follow its internal disciplinary policy ensuring that this is also in line with the ACAS Code of Conduct.
2. Home-school truths
Willow Hawthorn is equally disturbed by the plans of her own employer for returning to the office at the end of September. As she has been on furlough since last year, she decided to home-school the twins (Aspen and Hazel) on a permanent basis and doesn’t have any childcare lined up. Their pandemic puppy has also taken to chewing the Ercol dining chairs if left alone for longer than an hour, so leaving him in an empty house is inconceivable. She makes her feelings clear to her HR contact on their monthly catch-up call.
What additional issues apply in relation to Willow’s situation? Can you force her to return to the office?
Given her childcare commitments, an employment tribunal would be more likely to have some sympathy with Willow than with argumentative Ash.
An inability to find childcare is an obvious barrier to work and statements from the UK Government have made it clear it expects employers to be understanding in these sorts of situations. Further, if Willow has been put in the situation where she needed to deal with childcare herself (i.e. because she could no longer afford to hire someone else due to reduced furlough pay), it will be clear to a tribunal that the situation arose through no fault of the employee.
Assuming that Willow has two years’ employment, she will be able to bring an unfair dismissal claim if she is simply dismissed for not returning to the office in these circumstances. There is also a potential for an indirect sex discrimination claim, given that statistically women are more likely to have greater childcare responsibilities than men (see our discussion on this point here). Given these risks, her employer should tread carefully before taking formal action in light of Willow’s reluctance to return to the office.
To protect against the threat of claims, it would be sensible in these circumstances for an employer to:
verify why Willow is struggling to find childcare and support her at looking into potential options;
consider whether continuing to furlough her until she can find childcare is a practicable option for the employer (provided that the lack of childcare options is in reality due to Covid); and
explore whether there is a flexible working arrangement (in terms of hours and/or working from home) that can be accommodated that would enable Willow to satisfy the business needs of her employer whilst also managing childcare arrangements, at least until she is able to find new childcare.
These steps could be important to help show that the company had acted reasonably, in the event Willow refused to return to the office and a dismissal became necessary.
An employee with at least one year’s service has a right to take unpaid parental leave for up to four weeks.
As far as the new puppy is concerned, a reasonable approach may involve considering with the employee why it is not possible to make arrangements for care of the dog (perhaps coordinating WFH days with Ash) or whether some form of flexible working arrangement may help (if this would work for the employer). However, we suspect a tribunal is unlikely to have as much sympathy with an employee who refuses to return to work because they have got a dog during the pandemic and want to watch over it at home: the employee should always have known that a return to work was on the cards at some point in the future and that the dog might need caring for once that comes about.
It will also be helpful for an employer to document why a return to the office is helpful to the employee’s performance in the role, to support the necessity of any decision by the employer to require the employee to return to the office.
3. Amber gambler
Your colleague in the HR team, Penny Money, was working in the office one day last week. She overheard James Blond telling someone on the phone that he was off to Morocco for a two-week holiday and that he was pretty sure that meant he doesn’t need to quarantine when he gets back because he’s had his first jab. He said it was just as well, as he’s got to attend a client meeting at the office on his first day back in the UK. HR haven’t been asking employees about their travel plans for the rest of the year, but Penny thinks they should be doing so.
Penny has asked you if James is correct. She’s a bit worried the company is going to get into trouble. Can she ask everyone about their future travel plans?
It sounds like James is in for a bit of a shock! The quarantine rules depend on the UK’s traffic light system and Morocco is currently on the “amber” list. These rules change frequently, so Penny should keep an eye on them, but for the moment, those returning from an amber country like Morocco will need to self-isolate for 10 days at home after their holiday, unless they are fully vaccinated.
Having had only the one dose of the vaccine, James will be required to stay at home and self-isolate after his holiday to Morocco, meaning he won’t be making that client meeting in person. More importantly, since the company (through Penny) now knows that James should be self-isolating after his trip, it is under a duty not to allow him into the office or it risks being subjected to a fine (starting at £1,000) under the Health Protection (Coronavirus Restrictions) (Self Isolation) England Regulations 2020. Penny should let James know that his two-week holiday will mean almost a month out of the office.
If James chooses to go abroad despite this requirement to self-isolate, it is up to the company as to how it responds. If he can work from home without issue, this may be a workaround for the 10 days that doesn’t cause the business too many problems. If not, you might choose to pay him as normal, offer him some unpaid leave or ask him to use some more of his holiday for the self-isolation period. Provided the company treats all employees in the same situation equally, this is a policy decision for the business. However, whatever the policy, ensure it is communicated to employees in advance so that there are no surprises in store.
As for asking staff about their holidays, given that an employee’s travel plans can have a big impact on the business, we are of the view that it is reasonable for companies to ask employees about their travel plans and to keep an eye on the traffic light list. In fact, not asking the question is more likely to result in problems with staffing levels if employees end up stuck at home. Remember that holiday plans are likely to be personal data and a lawful basis will be needed for collating and processing it. Such a basis might be complying with health and safety obligations towards staff and visitors.
Penny should be sure to update the company holiday policy with any changes she makes, including any notification requirements. And let James know before he starts packing!
4. Passport problems
You seem to be the executive team’s go-to-person for all things professional and private at New Asset Investment Partners. Rich Bentley, the Head of Compliance, has phoned you in a total panic. His family are due to fly to their villa in Croatia next week but his wife, Portia, has spotted that there is only three months left on their son’s passport. He needs your help to make sure they can still travel as a family. Also, Rich and his family are French. They intend to fly on to Bordeaux after their holiday, so that he can work from the family home for a month or so before returning to the UK.
What can be done about the passport? Can Rich and his family proceed as planned, or are there any issues to consider on their return to the UK?
We will need to begin with ascertaining the nationalities of each of Rich and his family members, and whether they have status under the EU Settlement Scheme.
Being EEA (French) nationals, Rich and his family will have no issue entering Croatia or France. For their return to the UK, however, it is important that the validity of their status under the EU Settlement Scheme (“EUSS Status”) is linked to their current passports. They should therefore ensure that either they renew their son’s passport pre-departure and link the EUSS Status to his new passport, or plan to return to the UK before the expiry of his passport.
Being solely British nationals would, however, have raised different issues. EEA countries require that the passport is valid for the duration of the trip, plus three months from the date they intend to return to the UK. Given that British nationals are permitted to travel to the EEA for 90 days in any 180-day period, it is advisable to ensure that their passports are valid for at least six months before travelling to the EEA.
A second issue and potential pitfall is that the passport must be less than 10 years old from the date they return. If the current passports were renewed before the previous ones expired, extra months would have been added to the expiry date. Those extra months will not count towards the minimum validity required for travel to the EEA. For example, a passport with validity from 1 September 2011 to 1 October 2021 (10 years and one month) will only be valid until 1 September 2021 for travel to the EEA, and will need to be renewed. In this case, any travel between 1 March 2021 and 1 September 2021 will mean the passports will need to be renewed.
The HM Passport Office advises that 10 weeks should be allowed for the renewal of a passport, although a three-week urgent service can be used, as long as it is not an application for a first adult passport. It is worth being aware, however, that it is currently very difficult to get an urgent (24 hour) appointment at the Passport Office, so we advise checking validity dates and renewing as soon, and as far in advance of travel, as possible.
5. Friday ghost town
Your plans for the return to the office has gone very well and your COO at Modern Law has been lavish in his praise for the firm’s HR team in driving a successful project. Following a robust risk assessment and consultation exercise, all of your lawyers and other employees are fully on board with the new hybrid working system in which they may work from home for up to two days per week, with the remaining three days in the office. However, after a couple of weeks your HR assistant reports to you that the office has been a ghost town on Mondays and Fridays with everyone deciding to spend only Tuesdays, Wednesdays and Thursdays in the office.
What can you do to prevent the office being deserted on the first and last days of the week?
As we comment above in relation to Ash’s situation, employees with at least six months’ service can request flexible working patterns under the statutory flexible working regime. Such requests must be considered properly and reasonably in relation to the business requirements as set out above. If everyone requests the same two days, namely Monday and Friday, as a home working day the employer is allowed to consider the impact on the business of everyone working from home on the same days and may refuse requests (or some of them) if the result is that the operation of the business may be negatively impacted. The company may wish to establish some sort of rota to allow all employees to take working from home days adjacent to weekends from time to time but not every week.
If an employee does not comply with the employer’s instruction to attend the office on certain days, the employee is at risk of disciplinary action for failure to follow a reasonable and lawful instruction from his employer and/or a breach of the clause in his employment contract requiring him to attend the office. The company should follow its internal disciplinary policy ensuring that this is also in line with the ACAS Code of Conduct.
A possible exception to this is where the employee has good reason for needing to work from home on days adjacent to the weekend, such as needing to travel on a regular basis to support a disabled relation resident at some distance from their home, where support is better provided over a period of a few days, including a weekend. Another exception may be where the availability of childcare dictates working from home on certain days of the week. Denying flexible working requests for these types of reasons could result in claims for indirect discrimination (in the cases above associative disability discrimination and sex discrimination against women, who tend to bear the burden of childcare), unless the working pattern can be justified as a proportionate means of achieving a legitimate business aim.
6. Pay cut ploy
Many of your staff members have returned to the office and are working from there on a regular basis. However, a number of others are reluctant to return, seemingly for all sorts of reasons (some better than others).
Your CEO is furious and demands action. He heard a story in the press that civil servants are being threatened with pay cuts if they do not get back to their desks. He wants to take this approach for your company to account for the fact that the company’s employees are continuing to make significant savings on commuting costs at the company’s expense. He thinks the company’s approach needs to be “more stick and less carrot”.
You are sceptical but agree to look into it.
Can you cut pay for staff who do not attend the office?
Whilst this move would be easy to administer – simply updating payroll could do the trick – it is undoubtedly difficult to make it work from a legal perspective.
An employee’s salary is a central term of the employment contract. Agreeing to pay an employee £X and then only giving them £Y is – absent a very clear exception in the contract or good grounds to make a deduction from wages – is a clear breach of contract. In most cases, it will be sufficiently fundamental as to allow the employee to resign and claim constructive dismissal. If an employee has more than two years’ service, it is likely there will also be a statutory unfair dismissal claim.
Even a general right to make deductions from salary is unlikely to be of use to the employer on these facts. The safer approach is to negotiate an agreed variation to the employment contracts allowing the company to make deductions for under-attendance, although this would require the express written agreement of the employees who will no doubt be reluctant to agree. It is open to the company to take more of a carrot than a stick approach by awarding pay rises only to those who have returned to the office.
However, there is a risk of discrimination claim in all of these approaches irrespective of whether or not there is a breach of the employment contract: treating those who are willing to return to the office more favourably in terms of pay (or any other benefit) could have a disproportionate impact on groups with certain protected characteristics (such as those with childcare responsibilities who will be more likely to be women), which places the onus on the company to justify its approach by showing that the policy is a “proportionate means of achieving a legitimate aim”. This will not be possible if there are less discriminatory approaches available to the company.
If you have any questions about these issues in relation to your own organisation, please contact a member of the team or speak to your usual Fox Williams contact.
Need more information about the above people and legal expertise? Talk to one of our lawyers: +44 (0)20 7628 2000
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