FEATURE
Balancing employment rights post COVID-19
T
o many, the impact of COVID-19 seems never-ending, not just personally but also professionally. After all, it has created a new workplace issue to manage alongside other, more familiar day-to-day responsibilities. The pandemic has, of course, seen some interesting developments in employment law that employers might find difficult to ignore in the future. Here are just three that may lead to significant changes in employment circles post COVID-19. Flexible working Prior to the situation where those employees who could work from home were told that they should unless they were a key worker or absolutely had to travel to work, flexible working was not exactly popular with employers, many of whom viewed it with suspicion. Then, in March 2020, companies were scrambling to arrange laptops and phones for their employees when they were told that they had to shut their businesses. At that point, the workingfrom-home culture that might usually only have come from a successful flexible working request became “the new norm”. No doubt, many employers would like to bring as many staff members as possible back to the office if/when ordinary “normal” does return, but their business reasons for declining flexible working requests (particularly if those requests focus on working from home) have suffered an irredeemable setback. The solution to this is for employers to ensure that they do have genuine business reasons why an employee cannot work from home on a regular basis. For example, the expense and logistics of setting up an office assistant to work from home preparing trial bundles could be a clear situation where that form of flexible working might not work. However, if a solicitor can perform 5 days’ of work in 4 working days and still remain profitable, then this may well be a situation in which it is difficult to decline a flexible working request. In other words, the same laws will continue to apply, but employers will need to think very carefully about their response when an employee utters the inevitable words “but it worked during lockdown”. Furlough leave As we have seen, the government’s introduction of furlough leave as a temporary measure during the COVID-19 pandemic has created something of a rod not only for its own back, but potentially also for subsequent governments as well.
This is an area that we shall certainly need to watch as, even though financial support for employees goes by many names, the precedent our own brand of furlough leave is now there and will be remembered, both by employers and by employee representatives alike. Health and safety detriment claims Prior to the COVID-19 pandemic, Section 100 of the Employment Rights Act 1996 was little used and little understood. It protects an employee from being dismissed for a health and safety reason in certain circumstances. Whilst it has been used in various ways during the pandemic, its existence and potential application is now becoming far more widely known. Employers will naturally be concerned about Section 100 being applied for the wrong reasons but must tread carefully in health and safety situations all the same. Communication is key here: as an employer, you must obtain the specific reasons from the employee why they do not wish to come into the workplace (i.e. something more than “I don’t feel safe there”), which is where your investigatory skills as a solicitor will be invaluable to you. Your business advisers can also come into their own here. Initially, you should commission your health and safety advisers to review the workplace and to report upon its safety (or not, as the case may be). If your employee is concerned about the journey to and/or from work, then you should also consider steps to limit the risk for them here as well (i.e. could they perform their role, partly or wholly, from home). Your human resources advisers can then assist you in communicating the outcome of these researches to the employee in question, identifying the safety of the workplace or, conversely, the steps that you are taking to ensure that it is safe. If the employee still refuses to come into work after everything has been done to ensure that the workplace is safe, then suitable medical advisers would be the logical next step in determining the employee’s ability to work in the context of what has been done to ensure their safety. Ideally, the medical advisers should be Occupational Health consultants but, as an absolute last resort, it may be necessary to ask the employee to consult their GP. One thing is clear, however: any decision that could be interpreted as inflicting a detriment upon the employee (such as not paying them all or part of their salary or dismissing them) must only be taken after you have received detailed and informed advice from your team of employment law and human resources specialists. ■ Richard Hiron is an Associate Solicitor at TP Legal Ltd specialising in all aspects of employment law. The firm was established in Woking over 8 years ago.
When it attempted to introduce a scheme that was regarded as less supportive to employers and employees (i.e. the Job Support Scheme) the backlash was noticeable to say the least. Whilst the presence of furlough leave in the future is something for the government to legislate for, popular demand might see radical changes to the existing law of laying staff off (which is equivalent to the US idea of furlough leave) so that it essentially becomes furlough leave.
Richard Hiron SURREYLAWYER | 17
