Employment Solicitor Chris Dobbs outlines some key considerations for employers to try and limit the risk of hybrid working disputes and claims
2020: A Review of Employment and HR Law Developments
With Paul Burton, Head of Employment Law at Frettens Solicitors
Article featured in Bond Williams HR Insights Magazine
To say a lot has changed since the last edition of this magazine, and my last update, would be something of an understatement.
At that time no one had heard of COVID, let alone furlough or the R rate, and only a small minority of us regularly ‘zoomed’ or worked from home.
The pace of change in both employment legislation and workplace culture has been ‘unprecedented’ (another term that has seen its use shoot up this year). Employers and HR professionals have had to interpret and implement regularly changing guidance amidst a backdrop of economic uncertainty, and I have been fortunate enough to advise and work with some tremendous professionals and businesses who have done so fantastically well.
I will try to provide a short update as to ‘what has happened’, as well as touching on some of the biggest issues facing us in coming months, though this could reasonably be out of date by the time of publishing, such has been the pace of change this year.
One thing we can be certain of is that many agile businesses have prospered.
Lockdown and a move to working from home
In March, we were all told to stay at home, save lives, and protect the NHS. We did so in incredible numbers. Shares in Zoom went through the roof and everywhere sold out of cheap home desks.
Countless clients have told me that the move to working from home has been beneficial in terms of productivity and work-life balance, and many businesses have reduced their overheads by downsizing or shedding office space.
While working from home is not for everyone or every business, all businesses should have a working from home policy, something my colleague Chris Dobbs has written about at length. It should cover the circumstances and expectations of working from home, as well as health and safety, security and supervision, which leads nicely on to my next point.
Monitoring employees working from home
Most businesses I have worked with, including Frettens, have found that trusting employees to be productive when working from home has paid off. Our productivity has gone up since the mass move to working from home, and employees report feeling empowered when trusted.
Some businesses will require a need to monitor employee activity when working at home. It is a complex subject, something we have written about at length on our website and in our regular employment email law updates. The key is to be open and discuss it with employees if it is needed, and covert surveillance should only be used in extreme circumstances and after having sought advice.
A word that is part of our everyday language was known by next-to-nobody at the start of the year. The furlough scheme started in April and has gone through various transitions since, including flexible furlough and the Job Support Scheme.
At the time of writing, the furlough scheme has been extended to at least January, and it looks likely to continue through to March in its current format, which, oddly enough, is almost identical to its first format.
You can check the latest information on our website.
Returning to work from furlough – Health and Safety
We have had a lot of conversations around health and safety of employees. When workplaces began to reopen, significant changes were made to implement safe social distancing, cleanliness standards and appropriate PPE.
Some employees have felt unsafe returning to work, and we have spoken with both employers and employees alike about not wishing to return to work from furlough.
Chris wrote about this in a lengthy article in June, and under normal circumstances the answer to this is: no. You cannot generally refuse to work without being in breach of your employment contract. Refusing to work is a pretty fundamental breach of contract and in many cases will justify disciplinary action and probably dismissal.
The current climate may create situations where a refusal to return to work could be justified. This would be especially true where there is a general risk to health in the workplace or, for specific individuals, where they might be at a particularly increased risk to their health.
It is worth noting that none of this has been tested in court yet, so it would be best to speak to professionals before embarking on any disciplinary proceedings.
Sadly, there have been lots of redundancies made as a result of the pandemic, and we fear that there are more to come.
Unemployment figures have been rising, and while the furlough scheme will help to protect many into the new year, what happens when it ends is anyone’s guess.
The redundancy process has not changed as a result of the introduction of the furlough scheme.
The guidance is that any decision must be fair and that no one has been put at a disadvantage as a result of being on furlough leave.
The potential scale of furlough fraud was highlighted in a recent report from the National Audit Office. 1 in 10 workers were asked to work while on furlough.
Penalties are tough and HMRC has been unambiguous about asking employees to break furlough rules.
Our advice is simple, do not do it and, if you believe you have made a mistake in your applications for payments, do contact HMRC as soon as possible. Immediate action will lessen the possibility of, or at least perhaps reduce, any sanction imposed by HMRC.
Settlement Agreements & COVID Redundancies
The pandemic has had (and looks set to continue to have) a pronounced impact on the economy. As a result, we've sadly been handling a lot of settlement agreements and redundancies.
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