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In our latest employment law article, Sheilah Cummins discusses the future impact of the pandemic on the workplace.

There is no doubt that the Covid-19 pandemic is a defining moment in global history.  Whilst the immediate impact will eventually recede, the shockwaves will be felt for some time to come.  Much of the commentary has, quite rightly, focused on the negatives: the terrible loss of life; the poor contingency planning; the loss of jobs; the damage to the economy – to name but a few.  However, from all bad experiences, there are usually some positives.  Some changes triggered by the circumstances that make us question whether we really do want things to go back to the way they were. I am sure we can all think of a few things from the “new normal” that we would like to make “normal”.  I for one, have spent many an evening trying to squeeze inconspicuously between two locals propping up the pub bar in an effort to buy a round of drinks.  Table service has been a liberation for me.  Long may it live!

My social life aside, as an employment lawyer working mainly for employers, I have seen a sea change in the way we work and manage staff that has every indication of being here to stay.  Changes have been made to contracts of employment, policies and procedures.  Mental health has climbed up the agenda.  Hybrid working models, incorporating a mixture of office-based and home-working, are now becoming the new normal. 

In this article, I focus on these trends and changes and identify issues that employers may wish to consider for their businesses moving forward.

Hybrid working and permanent homeworking

Most office workers we speak to have expressed a desire to continue working from home in the longer-term.  Whilst some may feel that the lines between home and work have become increasingly blurred, many do not miss their commute and are pleased to be able to spend this lost time with their families.  Many employers have invested heavily in their IT systems and infrastructures over the last year to enable effective homeworking for their staff.  They want to dispense with large, expensive office buildings and downsize, accommodating either permanent homeworking, or a split between home and office working, for their staff.

The Government’s Covid-19 task force advisory group has suggested that flexible working practices should be the default position for employers post-pandemic.  Of course, this only works if employers have the appropriate procedures in place to ensure productivity remains effective and consistent.  In this respect, we have seen an increase in requests for agile working and homeworking policies, which allow employers to accommodate a more flexible working environment whilst putting a framework in place to protect the business.   

Such policies usually address issues such as: supervision of junior staff; expenses; the tax consequences of home and office working; data and cyber-security issues; and the protection of confidential information.  Importantly, it should also address health and safety issues and ensure there is in place an appropriate procedure for carrying out risk assessments where homeworking is now to be on a more permanent basis (see our Louise Plant's recent article here for further information).

Contractual changes

The pandemic has also, for many employers, revealed some deficiencies in their employment contracts.  The absence of a contractual right to lay off staff, or to introduce short-time working, has tied employers’ hands at a time when they arguably needed more flexibility than ever to respond and adapt to the various lockdowns.  Without a contractual right, employers need employees’ consent to be laid off or have their working hours reduced.  At a time of great economic uncertainty, such consent can be difficult to obtain.  The furlough scheme was a life-saver in this respect but it does beg the question – where would we have been without it?

Of course, contracts must also now incorporate appropriate provisions and protections for homeworking and hybrid working.  In this respect, employers are encouraged to consider including clauses which:

  • Address probationary period arrangements. For instance, are probationary periods to be worked from home or in the office? Does the contract give employers sufficient flexibility to change the arrangements if they are not working;
  • Give them the right to terminate or change the arrangements;
  • Cross-refer to homeworking/agile working policies and procedures;
  • Clarify health and safety obligations e.g. to take adequate rest breaks etc.
  • Provide for the protection, maintenance and insurance of company equipment;
  • Restrict access to company equipment from any other person residing in the employee’s home;
  • Give them the right, on reasonable notice, to enter the employee’s home to inspect/repair/install company equipment.

Holiday

The pandemic has also left employers with a dearth of untaken holiday.  Whilst the Working Time (Coronavirus) (Amendment) Regulations 2020 have sought to address this by allowing statutory holiday to be carried over into the next two leave years, doing so represents a significant long-term financial risk for employers who will retain an obligation to pay employees in lieu for all untaken holiday upon termination.

As a result, many businesses have revised their annual leave provisions to ensure they have a greater contractual right, for instance, to: compel employees to take holiday on particular dates; restrict carry over of contractual leave; clarify which type of holiday (contractual or statutory) is deemed to be taken first; and to stipulate the number of days’ holiday to be taken in any one leave period.

Mental health and wellbeing

The pandemic has also cast an unprecedented spotlight on mental health issues.  A recent study by the Office of National Statistics has revealed that one in five adults experienced depressive symptoms in early 2021 - more than double than that seen before the pandemic.  The largest increase in rates of depressive symptoms was in younger adults. 

This is unsurprising.  Isolation from family and friends, working from home and job security concerns have all contributed to a toxic melting pot of anxiety and depression. 

Against this backdrop, many employers have made employees’ mental health a priority, unequivocally recognizing that protecting and maintain wellbeing is an integral part of their duty of care towards employees.  To this end, we have seen a significant increase in employers seeking advice on their mental health and safety obligations and, in particular: introducing facilities and procedures to support employees working from home; appointing “mental health” first aiders; providing Employee Assistance and counselling programmes; and creating on-line forums and socials.

Conclusion

The above are just a few of the work-related legacies arising from the pandemic.  I am sure there have been, and will be, many more.  What Covid-19 has highlighted more than ever, however, is that resilience is born from flexibility.  As Charles Darwin once said: “It is not the strongest of the species that survives, not the most intelligent that survives.  It is the one that is most adaptable to change.”  Having a contractual and procedural framework that enables businesses to respond to change is the first step to achieving long-term survival in a post-Covid world.

Legal disclaimer: the contents of this article does not constitute legal advice and is provided for general information purposes only.

 Sheilah Cummins from Prettys employment law blog on jobscribe Sheilah is an Associate in the employment team at Prettys Solictitors. For any further employment law advice, you can contact Sheilah here.