A brief break from the Job Retention Scheme: Coronavirus, or how I learnt to stop worrying and love my front room
Writing blogs is a task we all enjoy here in the team. A welcome distraction, at times, from some of the more stressful aspects of our role with the potential to (hopefully!) impart some useful knowledge.
On this occasion, I could not be enjoying writing this blog more. It’s 10am as I write this, I have already watched both Frozen 1 and 2 (I prefer the second, actually, but would welcome any particular thoughts on that), we’ve made scones (that look like pancakes) and I’ve ferociously googled whether I need to call the vet having caught my dog eating baking powder (ah yes, that’s why they look like pancakes). I have deliberately drawn out the most trivial of concerns at this time, but rest assured the more significant problems are not lost on me.
I cannot resist seizing the opportunity to boast about my wonderful colleagues, Amy Wren and Alice Yandle to name just two, who have, unquestionably, been leading forces in the country’s understanding of the Coronavirus Job Retention Scheme.
Leaving furlough aside for a moment though, I wanted to revisit some of the employment law considerations that arise for those working from home and, dare I say it, begin to look post-lockdown, at ways in which these unprecedented times (overused but true) might change the way we work in the future, which we should be prepared for.
With any substantial change to one’s daily routine, there is always the risk that it might adversely impact an individual’s mental health. As we know, mental health issues can be difficult to spot and are sensitive to address with employees. This is further exacerbated when our only contact is via the telephone or over email.
Employers should have regard for the mental health of all employees during this difficult time and consider whether new working practices could have a discriminatory impact (I consider this further below) on particular individuals.
It is imperative that employers take a proactive approach to safeguarding their employee’s mental health, by way of weekly team calls, managerial check-ins on an individual basis and the encouragement and facilitation of peer-to-peer engagement, for example.
Some people, understandably, find it difficult to separate work from their personal lives when they are working from home, particularly when they don’t have a separate office space. Often, I hear people speak of “letting go” of their days work on the train journey home or the drive, cycle, whatever it might be. Employers should encourage employees to take regular breaks, go outside (pandemic rules permitting) to try to enjoy some of the lovely sunshine we have fortunately had and ensure they set realistic working boundaries and expectations.
Correspondence over email at times can be tricky because you cannot necessarily gauge a person’s tone; things can easily be misconstrued. Further, it can increase the risk of inappropriate content. We should all be mindful of this as we continue to work remotely, and employers should be particularly alive to the increased risk of informal/formal grievances in that regard.
Contractual hours and productivity
Needless to say, the moment the schools and nurseries shut our considerations turned to how we were going to be able to do our contractual hours. However, the inability to undertake contractual hours doesn’t just stem from children of course, but also care responsibilities for older or vulnerable people, for example.
Technically speaking, in the absence of agreement, employees who fail to undertake their contractual hours are in breach of the employment contracts. However, it would not be wise for an employer to immediately take issue with this in the current circumstances. Our experience so far has been that managers have been very sympathetic to the daily challenges, many of which they are facing themselves.
It is a difficult balancing act for employers, as they need to ensure a certain level of productivity to, in some circumstances, secure the future viability of the business. This can be difficult in professions where time is not recorded, as such.
Communication and understanding are vital. Understanding the demands on the employee and keeping up to date with them will not only give visibility over their workload but also what can reasonably be expected of them. In extreme circumstances where employers suspect the increased need for flexibility is being exploited or abused by employees, they might consider whether disciplinary action needs to be taken, but extreme caution should be taken and advice sought before doing so, particularly as it could result in discrimination concerns also (for example, working from home might have a greater impact on the productivity of women who may be the primary care providers).
Confidential information becomes no less confidential simply because the workplace has changed, and employees should be reminded of that.
The extent of how important it is to keep the information confidential should determine the employer’s requirements. Should files be kept in locked cupboards? Practically speaking, there are restraints on what can be done (employees living in shared flats might not be able to keep all conversations confidential) but employees should be reminded of what they reasonably can do, such as using “A, B and C” instead of names on particularly sensitive calls, for example.
Equipment, reasonable adjustments and discrimination
Employers should ensure that employees have the right equipment to work safely. It might not be possible for smaller organisations to provide everything an employee might be used to in the office, not least because it can quickly become costly. However, an employer should determine at the outset the basic requirements of each employee and what they are prepared to contribute to if required.
Consideration should also be given to those who are disabled for the purposes of the Equality Act 2010. Employers should consider those that have reasonable adjustments in place at work and to what extent this is needed or would be helpful at home, given all our homes are effectively our new workplaces for the moment.
Will the same reasonable adjustments benefit that employee at home? Should different reasonable adjustments be considered to assist with this unusual situation? Conversely, are there some individuals whom do not have reasonable adjustments at the workplace but are suffering from disabilities that might particularly impact them at home?
Employers should also consider whether new remote working arrangements, aside from those suffering from a disability, have a particular impact on other employees with other protected characteristics. For example, has the employer properly managed a situation whereby the remote working arrangements might be increasingly challenging for a particular age category?
My colleagues Kathleen and Shehnal did a fantastic blog on Health and Safety when working from home recently (here), so I have not touched upon it here. The blog is certainly worth a read, if you haven’t already.
Once lockdown is over, we are, presumably, going to start moving towards something that looks a bit more like our previous reality. Whilst it is unimaginable now, people will start to go back into the office. What we can be certain of though is that it is going to happen gradually.
Employers will need to be prepared to manage an even more sporadically placed workforce. Depending on the post-lockdown restrictions, it might be necessary to ask some employees to travel into the office on some weeks whilst asking others to work from home (a type of “split” workforce). Employers will also need to think of those that are still higher risk and their individual circumstances, such as a pregnant employee who usually takes a very busy train, for example.
It will also be important to commence once more the pre-lockdown cleanliness routines we adopted pre-furlough/working from home. Adopting the approach taken by several US states so far, employers might also consider whether they might seek to ask employees to wear facemasks in certain circumstances, such as on public transport.
Employers might also find that there are employees who have concerns about returning but, in accordance with government guidelines, are technically able to return to work. This matter warrants an article of its own but what an employer can do in these circumstances depends on the particular facts, including whether the individual is suffering from a mental health condition that might exacerbate their concern. Ultimately, it could be a matter for disciplinary action but, again, employers should proceed with extreme caution and seek advice.
Clearly government guidance will be essential, but employers would be well-advised to start thinking about what getting employees back into the workplace safely and practically looks like.
Flexible working requests
We have all managed to work in a more flexible way than I think any of us could have ever imagined. For those businesses that have coped well, they might well see an increase in flexible working requests.
As we know, employees with at least 26 weeks’ continuous service can make a request for flexible working under the statutory scheme. Employers can refuse flexible working requests based on one or more of the eight statutory reasons.
However, employers who have expertly dealt with the recent crisis, formulating new ways of working, are likely to have to give greater consideration as to why a flexible working arrangements might not work, particularly if their concern is the detrimental effect on the ability to meet customer demand, which was previously met during the pandemic.
We might even see a greater increase in requests from men who, on the whole, tend to work less flexibly than their female counterparts but, as a result of the pandemic, have had to work more flexibly than ever.
Homeworking policies aren’t a new concept, but they have certainly been helpful to employers in assisting with certain aspects of the current situation. Employers might well consider the implementation of a Homeworking Policy or amendments to an existing policy a greater necessity than previously thought.
Times of adversity can bring out the absolute best in employers; the compassionate reasonable and realistic leaders that truly prioritise the wellbeing of their workforce whilst maintaining business efficacy. However, each new chapter brings with it its own employment law considerations. Whilst we continue to grapple with our understanding of the Job Retention Scheme (it feels like we’re virtually there!), we must not lose sight of the overarching employment law considerations, which are very much alive and relevant, more so now than ever.
Ps Billie the dog is fine, albeit still looking a bit sorry for herself.
If you require further information about anything covered in this blog, please contact Rachel Nolloth, or your usual contact at the firm on +44 (0)20 3375 7000.
This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.
© Farrer & Co LLP, May 2020