Employment Eye August 2021

Welcome to our latest round up of employment law developments and what they mean for employers. Following our recent Employment Law webinar, a recording of which can be accessed here, in this newsletter we look at the return of employees to the workplace and some topics for employers to consider in preparation.

The rise of hybrid working

An in depth look at the introduction of hybrid working across multiple sectors and how best to consider, plan and implement any changes to workforce arrangements in order to nurture flexibility without compromising the employer’s legal obligations.
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Post-pandemic employee benefits

How the focus of employee benefits packages has shifted and our recommendations to employers to safeguard retention and workforce sustainability within increasingly competitive markets.
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Case law update: Coronavirus related health and safety claims

We consider the Tribunal’s approach in recent case law concerning employees who are dismissed for refusing or being unable to attend the workplace as a result of Coronavirus, focusing on their ability to claim automatic unfair dismissal for health and safety reasons and what practical steps an employer can take to mitigate the risk of these claims being successful.
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The rise of hybrid working

With the  ending of restrictions last month following the Government’s announcement no longer requiring people to work from home as of 19^th July, many businesses will be keen for employees to return to the workplace. However, research has shown that the majority of office-based employees want to continue working from home for at least some of their working week. Coupled with CIPD research which reveals 40% of employers expected more than half their workforce to work from home on a regular basis post-pandemic, it is clear that organisations need to consider what “hybrid working” means for them and how they can accommodate this new way of working in the long-term.

What is hybrid working?

Hybrid working is also known as agile working, split-working, blended-working or remote working. It can simply mean splitting an employee’s contractual working hours between home, or another location of choice, and the employer’s premises. More broadly it means giving employees a choice of where and how they work.

Why offer it?

The workplace has changed as a result of the pandemic. For many employees, their work-life balance has become a priority. Reflecting this desire, the Government’s flexible working taskforce has recommended that flexible working should be the default position for all workers post-pandemic.

For employers, the benefits in allowing a more flexible approach to work include:

• retention of existing employees and attraction of new talent;
• the development of a resilient business model so that work can continue through events like adverse weather, train strikes or terrorism threats;
• reduced absences for appointments or childcare reasons, for example; and
• potential cost-saving opportunities with a reduction in office space and overheads.

How to decide on the model

When considering hybrid working, employers should think about:

• whether employees will be required to attend the office for a minimum number of days per week, or whether it will be optional;
• whether employees will have a choice over the number of hours and days they attend the office vs work from home;
• what the office space will be like, and how employees will be accommodated when in;
• how team meetings will work if members are split between home and the office;
• how arrangements will work for particular groups of employees e.g., part-time workers.

The decisions around, and business case for, the chosen structure should then be documented and any expectations and parameters for the arrangements shared with employees.

What are the legal considerations?

Two key elements to be aware of are:

1. Changing Employment Terms

Unless the contract expressly allows it, any change to an employee’s contract of employment must be agreed.

If an employer intends to roll out an informal hybrid working arrangement, allowing employees to have flexibility over the number of hours, and specific days, when they are in the office or working from home within agreed parameters, this may not amount to a formal change of employment terms.

However if an employee makes a flexible working request to formalise a hybrid working arrangement, and the request is accepted, or the employer mandates fixed days working from home, which is agreed, this will amount to a formal change to terms and conditions of employment.

It is important that employees and managers understand the difference and implications of both types of arrangements. It is therefore advisable to ensure that the parameters of any flexible working arrangement, whether formal or informal, are clear for all to follow.

2. Potential Discrimination issues

If considering an approach that places requirements on employees to either work from home or work from the office for a minimum number of days per week, this could raise potential discrimination risks if protected groups are put at a disadvantage.

• Younger employees may be reluctant to work from home if their home environment is not conducive to working. For example, they may have young babies and children, or they may be in shared accommodation. Requiring these employees to work from home may amount to indirect age discrimination.
• Female employees with caring responsibilities may be disadvantaged where they are now required to squeeze their working day plus a commute into the hours that a childminder or other childcare provider can care for their child. Requiring these employees to work from the office where working from home has become their established way of working may amount to indirect sex discrimination.
• Employees with a disability that impacts their ability to travel to, or successfully return to, an office environment may be protected under the Employment Rights Act 1996 and allowing such employees to continue working from home could be a reasonable adjustment for the employer to make. Requiring such employees to attend the office may lead to discrimination issues.

To minimise the risk of indirect discrimination, any policy allowing hybrid working should apply equally to all employees across the workforce.

Six practical considerations

1. Policies: do existing flexible working policies consider hybrid working arrangements?

If rolling out a dedicated hybrid working policy, this should include any eligibility criteria, the process for an employee to request or for an employer to agree hybrid working, roles and responsibilities for employees and managers to make the arrangement a success, any interactions with existing flexible working policies or arrangements, and some guidance on how to deal with multiple hybrid working requests across teams.

2. Communication: what steps have been put in place to ensure every member of the team can contribute and communicate equally?

Successful hybrid working arrangements depend on effective communication. Having teams working across different locations can unintentionally lead to lack of information or knowledge sharing, a lack of cohesion and feelings of exclusion (the “out of sight, out of mind” syndrome).

Employers could consider having all meetings online, regardless of work location; building in regular social interactions, whether in person or online to encourage employee engagement; requesting teams to be present in the office on a regular basis; allowing teams to agree their own communication principles and use of tools available. 

3. Employee Wellbeing: what steps are in place to support employees who may be struggling?

However employees choose to split their time, hybrid working gives managers fewer opportunities to spot the subtle signs that an employee may be struggling. Training for managers, and support for employees, will help in identifying potential signs or symptoms of poor wellbeing or mental health. Encouraging managers should regularly check in on employees, and proactively monitor workloads and working hours, will help as will an employee assistance programme (or similar).

4. Health and safety: how do employers monitor health and safety at home?

Where employees are working between the office and the home the employer becomes responsible for the health and safety of employees across both workspaces. Home office assessments should be conducted, and employees reminded of their duties under health and safety policies or procedures.

5. Performance Management: how do managers monitor performance across a hybrid working team?

For as long as managers and employees work remotely from each other, it is harder to observe or monitor performance on a day-to-day basis. Managers should be supported and trained on how to identify performance issues from afar, and perhaps start to assess performance through outcomes, contributions to the team and engagement in virtual meetings, for example. If there is a performance issue, an appropriate performance management process should be put in place that will operate successfully in a remote environment.

Conversely, remote working may also prevent the best performers from being identified and recognised so with a move to hybrid working, and a roll out of accompanying policies and communication, it could be an opportune time to revisit or revamp any reward and recognition schemes.

6. Digital bullying: do existing policies and procedures cover cyber-bullying?

Cyber bullying has become more prevalent with increased remote working and greater use of internal communications platforms. The impact may be more severe where it is happening at home and the target of the bullying is unable to physically walk away. Cyber bullying should be included in all bullying and harassment policies, and managers equipped to address any reported issues.

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Post-pandemic employee benefits

As the UK emerges from over 12 months of lockdown, employers across all sectors are having to grapple with a combination of changes to the UK workforce, which is resulting in skill shortages in certain specific sectors and meaning there is more pressure than ever on HR and people teams to ensure that their employee benefits package works hard to differentiate them from competitors and help to retain staff.

Why is there a problem now?

It was only a few months ago that news headlines were full of warnings of unemployment on a scale not seen since the 1980s, as a result of redundancies following the end of furlough.  Yet, as the process of unlocking has unwound, what has come to the fore has been stories of businesses being unable to get hold of staff.   There are a combination of factors which have brought this around; undoubtedly, the ongoing impact of the many individuals still on furlough is playing some part, as is the impact of the number of individuals who have returned to their EU countries during the last 18 months, either as a result of Covid or as a result of Brexit.

But there are also other factors too,  Covid disruption has caused the supply line of trainees and apprentices going through skills training and technical qualifications to falter, stay at home policies have meant that the unskilled student workforce that many industries utilise has not been available in the right geographic regions, and 18 months of pent-up demand where employees have remained with employers, despite the fact they may not have felt employers acted in their best interests during the lockdown period, have come to an end and we now see an explosion of individuals looking to move, not just between competitors within the same industries, but between different industry sectors entirely.  This is probably very true of areas like hospitality, where the forced closures have meant that individuals used to long hours and low wage culture have looked at alternative sources of employment.

Underpinning it all, the UK is experiencing the same long-term demographic changes of most industrialised nations, with a steadily aging workforce and lower numbers of school leavers entering the workforce.  Again, for many people at the upper end of the age scale in the workforce, Covid has meant lifestyle changes and large numbers of people have chosen to retire and “seize the moment”, rather than risk continuing work and missing out on the things they wanted to do.

Back to the Future

In terms of what this means for employers, suddenly issues such as recruitment and retention have come to the fore and HR teams are under pressure to ensure that their employee benefits packages are both cost-effective in an environment where resources and budgets are under pressure due to enforced closures and the wider impact of Covid on the economic environment, and the competing pull to be attractive to new joiners.

Flex it

So what are the trends to pay attention to?  The first place to start is to look at the gap (which has been around for a long time) between what employers think they are offering to their employees and what employees, when polled, say they want.  More employers are looking at this gap and having to think strategically, and the key issue which has been seen worldwide is the ability to work flexibly both geographically and in terms of time management. 

Pre-pandemic, this was an area reserved for very few staff in most organisations.  Post-pandemic, it has become the norm and, indeed, for many organisations, it is now an embedded expectation.  Some organisations are now suggesting that greater trust and autonomy is more valuable to employees than traditional perks, such as incentive plans.  With staff weighing up how their employers have supported them during the pandemic, there is also an increased focus on family-friendly benefits.  This can cover everything from emergency childcare to school holiday clubs, nursery discounts and travel insurance for family holidays, as well as family leave policies, including parental leave  shared between the two sexes and/or regardless of gender or sexual orientation.

When thinking strategically about these types of benefits, employers need to support employees across all life stages; so not only parental leave and adoption benefits for parents starting a family, but also think about caregiving leave for spouses, domestic partners or parents.  Family-friendly benefits can also help companies improve gender diversity and allow the workplace to be more female friendly.

It’s all about wellbeing

Across a range of businesses, employees’ pockets have been significantly hit, whether as a result of furlough or reductions in salary in the early parts of lockdown.  Despite the incredible hit to under 30s in the jobs market, according to the Resolution Foundation, those over the age of 50 have suffered the biggest fall in employment.

The last 12 months have seen stress and anxiety become the leading cause of absence and, within that stress, financial worry is now identified as the leading cause of stress across all sectors.  Pre-pandemic, less than half of employers offered programmes to help employees make informed financial choices.  Post-pandemic, a number of surveys are suggesting that upwards of 75% of all employers are either going to make financial education a priority or have identified that staff give this as the single biggest reason for impacting on their work performance.  It also directly impacts on mental health, which prior to the pandemic had been the main focus for wellbeing.

Covid has also exposed the uneven state of health across national, regional and workforce populations.  So, benefit strategies that support physical health as well as mental health and financial security and those that protect social connections at work are all valued by employees.  Health benefits cover everything from free eye tests and flu vaccinations to healthy eating and lifestyle advice.  Some organisations offer subsidised gym membership or physical fitness programmes linked to insurances.  These can be coupled with employee support, such as counselling services or assistance programmes or stop smoking support and/or by protection initiatives, such as dental or medical plans or grouping in protection for critical illness insurance.  These are the benefits along with life assurance currently most valued as a complete package by employees.

What about pay?

On the whole, there has generally been little change since 2019, according to the CIPD.  The exception being in those areas where there are sudden staff shortages on demand as reopening is rolled out.

Getting the message right

Any business formulating its new strategic employee benefits approach needs to ensure that its benefits are properly communicated to its employees.  There has been a marked increase in the use of total rewards statements and, increasingly, employee value propositions; both of which, if they are communicated clearly, can potentially have a positive impact on employee engagement, by giving employees a greater understanding of how their benefits package positively helps them and underlines their value to the business as a whole.  This has historically been one of the areas of displacement between employers and employees – employees’ perception of what benefits they actually have, rather than the actuality of the benefits they receive.

But even these steps need to be backed up on a year-round basis, communication cannot be a one hit wonder.   Your business needs to think about the demographic of its workforce.  What technologies – from paper to digital – it uses to reach out to every cohort of its workforce.  Many businesses are looking at apps.  This would allow employees to be engaged for 365 days of the year, often on an interactive basis not just on the days when specific benefit messages are issued.  Communications need to be clear and simple and focused on the points that the employer wishes to get through to its employees.

Costs and Benefits

Finally, companies need to think about how some of these benefits are funded.  There are still a surprisingly large number of organisations in the UK that do not use salary sacrifice or salary exchange in order to reduce both its and its employees’ national insurance costs in respect of pensions, childcare and green travel arrangements; all of which would fit in with the overarching policies and strategic issues outlined above. Insurance premiums and coverage should be constantly reviewed and ultimately most surveys find engaged and content employees increase performance and productivity.

Any approach to altering your benefit provision requires careful thought and planning. There are a large number of legal issues to get right, from ensuring policies are properly worded to varying contracts of employment and undertaking both statutory consultations and effective communication exercises to dealing with provider contracts. Whilst we  support clients on many projects to change benefit structures providing not just legal advice but also helping to structure commercial solutions, we find the most effective changes   both in terms of paying for themselves and also engaging employees are those where employers and  advisers engage in the hard strategic work well ahead of any planned changes.

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Case law update: Coronavirus related health and safety claims

With covid-related claims now making their way through the tribunal system, we examine a handful of recent cases where employees have been dismissed for refusing or not being able to attend the workplace as a result of coronavirus and have subsequently claimed automatic unfair dismissal for health and safety reasons. We then set out some practical recommendations for employers arising from the Employment Tribunals’ decisions.

A reminder of the law

Section 100 of the Employment Rights Act 1996 (“ERA 1996”) provides protection from dismissal or detriment for prescribed health and safety reasons; including, where an individual leaves or stays away from the workplace where they reasonably believe there is a serious and imminent danger and which they could not reasonably be expected to avert, or where they take appropriate steps to protect themselves or others from the danger.

If the reason for a dismissal is one of the principal reasons set out within the ERA 1996 then the dismissal will be classed as automatically unfair. Unlike ordinary unfair dismissal, employees can bring a claim for automatically unfair dismissal without having two years’ service.

Each case will turn on the claimant’s own belief about the risk of danger and the steps they have taken to avoid that danger. The following cases are therefore purely indicative of the approach the Tribunal may take in different circumstances.

Case 1: An employee refuses to attend the workplace due to a general concern about coronavirus risks.

In the case of Rodgers v Leeds Laser Cutting Ltd [2020] the Employment Tribunal found that the employee had not been unfairly dismissed following his refusal to attend the workplace due to generalised concerns about the coronavirus pandemic.

The facts

Mr Rodgers was employed as a laser operator by Leeds Laser Cutting Ltd. The employer’s site was a large, warehouse-like building approximately half the size of a football pitch and usually there were only 5 employees working there at any one time. It was not therefore hard to socially distance during the working day. The employer had also carried out a workplace risk assessment and implemented various measures to ensure that the workplace was covid-secure.

In March 2020, Mr Rodgers went home as usual at the end of his working day. He later texted his manager that he would be off work until after the (first national) lockdown eased. He explained that he was worried about infecting his vulnerable children with coronavirus, one of whom had sickle cell anaemia. A month later he was dismissed.

As Mr Rodgers had less than two years’ service, he was unable to bring a claim for ordinary unfair dismissal against his employer. He therefore claimed that he was automatically unfairly dismissed for a health and safety reason.

Tribunal decision

The Tribunal found that Mr Rodgers had not been automatically unfairly dismissed for a health and safety reason. Even though he expressed a generalised fear about the pandemic in his text to his manager, the Tribunal was not persuaded that he had believed that he was in serious and imminent danger whilst at work.

Even if he did have this belief, the Tribunal considered that such a belief was not reasonable given the measures that the employer had put in place, and the small number of employees working within such a large space. In reaching their decision, they were mindful of the fact that Mr Rodgers had not self-isolated or restricted his movements outside of work.

Ultimately the Tribunal considered that Mr Rodgers should have tried to address his concerns with his employer, rather than taking the drastic steps of staying away from work.

Case 2: An employee expresses a specific concern about the employer’s preparedness for their return to the workplace.

In the case of Gibson v Lothian Leisure [2020], the Employment Tribunal found that the employee had been automatically unfairly dismissed after he raised concerns about the lack of covid-secure measures at his workplace and the potential impact on his clinically vulnerable father.

The facts

Mr Gibson was employed as one of two chefs in a restaurant. Before reopening after the first lockdown in March 2020, he was asked to come into work to prepare for reopening.

Mr Gibson told his employer that he was concerned about catching coronavirus and passing it on to his clinically vulnerable father. He raised concerns about the lack of covid-secure measures that had, or had not, been put in place in the restaurant, including the lack of PPE.

Without any warning or meeting, Mr Gibson was subsequently dismissed, by text, with no notice pay or accrued holiday pay. The employer’s reason was that they planned to operate with a smaller team after lockdown. Until raising his concerns, Mr Gibson had been a successful and valued member of staff.

As Mr Gibson did not have two years’ service, he was unable to bring a claim for ordinary unfair dismissal against his employer, so brought a claim for automatic unfair dismissal due to health and safety reasons – along with various claims for unpaid entitlements.

Tribunal decision

In the employer’s absence, the Tribunal found that Mr Gibson had been automatically unfairly dismissed for a health and safety reason because, by raising the issue of lack of covid-secure measures, he had taken steps to protect his father in what he reasonably believed to be circumstances of serious and imminent danger. Unsurprisingly the Tribunal agreed that the risk of infecting a clinically vulnerable individual with coronavirus amounted to a serious and imminent danger for the purposes of the ERA 1996.

The Tribunal made a second, alternative finding that since the wording of the employer’s text message to Mr Gibson had suggested a redundancy situation, Mr Gibson had been unfairly selected for redundancy because he had taken those steps to protect his father.

Case 3: An employee does not travel back to the UK after holiday due to health and safety concerns.

In Montanaro v Lansafe Ltd [2020], the Employment Tribunal found that Mr Montanaro had been automatically unfairly dismissed for a health and safety reason when he remained overseas during local lockdown.

The facts

Mr Montanaro was employed by Lansafe Ltd, a computer specialist company providing services to other companies. He was specifically employed to work with Boohoo, one of Lansafe’s clients, with whom he had a previous working relationship.

On 9^th and 10^th March, having thought he had appropriately booked annual leave, Mr Montanaro attended his sister's wedding in Italy. On 9^th March, Italy went into lockdown. The UK government’s guidance at that time was that travellers from Italy were required to self-isolate for 14 days upon entering the UK.

Early on 10^th March, when he was due to return home, Mr Montanaro contacted his employer to make them aware of the situation in Italy and seek advice. He was told to keep his mobile and laptop on and wait for further instructions. Mr Montanaro took this to mean that he should not leave Italy. He therefore returned to his accommodation, contacted Boohoo directly and starting working.

Unbeknownst to him, on 11^th March his employer sent him a letter to his UK home (despite knowing that he was in Italy) terminating his employment with effect from 6^th March. The reasons given for his dismissal were a failure to follow company procedures for booking holiday and, as a result of his failure to book holiday correctly, taking unauthorised leave.

As Mr Montanaro had only a month’s service at the time of his dismissal and was therefore unable to claim ordinary unfair dismissal, he brought a claim for automatic unfair dismissal for health and safety reasons.

Tribunal decision

The Tribunal found that Mr Montanaro had been automatically unfairly dismissed for health and saferty reasons. They agreed that there were circumstances of danger, given the declaration of a pandemic and the risk of catching a contagious virus which could lead to serious illness, and found that Mr Montanaro had reasonably believed that the danger was serious and imminent. Whilst he had not refused to return to the UK, stating during the hearing that he would have returned if he had been told to do so, the Tribunal concluded that he had taken appropriate steps to protect himself from the danger and communicate the same to his employer; those steps were to remain in Italy.

When considering the actual dismissal, the Tribunal found that the employer’s reasons – that Mr Montanaro had failed to follow company procedure to book holiday and his absence was unauthorised – were not credible in the circumstances.

Practical Tips for Employers

With more people being vaccinated and social distancing now part of our daily lives, it is going to be harder for the general populous of employees to argue that their absence from the workplace is because they have a reasonable belief that they are in serious and imminent danger of contracting coronavirus. Nonetheless, there will be employees who remain anxious about returning to the workplace, or who have specific individual concerns about doing so.

To minimise the risk for employers when bringing employees back to the workplace, we recommend the following steps:

1. Conduct a risk assessment and put in place appropriate safety measures to reduce any identified risk.
2. Communicate the measures that have been put in place, any changes to health and safety policies, and any site-specific procedures, so they are clear for everyone to follow.
3. Consider any updates to HR policies to address, for example, ad hoc working from overseas, or remote working during periods of isolation.
4. Ensure that all documentation, policies and procedures are kept up-to-date and reflect current Government guidelines.
5. If an employee raises concerns, investigate their individual circumstances. Recognise that their behaviours or actions may not be centred around a concern for themselves.
6. Be prepared to consider temporary, short term measures to address individual concerns and accommodate individual needs if possible.
7. If considering disciplinary action or a dismissal as a result of a refusal to attend the workplace, ensure that a fair and proper process is followed.

If in doubt as to whether there is a health and safety reason which could result in the dismissal being classed as automatically unfair, seek legal advice. 

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If you would like advice or assistance in relation to any workforce issues, or indeed any of the topics mentioned in this newsletter, please get in touch with a member of our Employment Team.