New ways of working - navigating the risk landscape

After two years of strict guidance on what we could and couldn’t do during the pandemic, the government’s latest guidance, Living with Covid-19, is much lighter touch¹. Offering common sense advice on areas such as vaccines and good hygiene practices, it effectively passes the reins of responsibility to the employer. But with so much change ahead, and employee expectations also markedly different as a result of their experiences during the pandemic, employers must be aware of the legal ramifications of any decisions they make.

As more normality returns, many organisations are having to determine how and where they would like their employees to work. Strategies ranging from post-it notes on empty desks to free food and drink are being used to encourage employees back to the workplace.

But, after more than two years of working from home, many employees are reluctant to give up the flexibility it offers. A survey by the Office for National Statistics (ONS) dummy ² found that 85% of employees who were homeworking wanted a hybrid approach in the future.

Demanding a wholesale return to the office is likely to be met with resistance. Given the current employment market, where, for the first time ever, the number of job vacancies exceeds the number of unemployed people (3), employers must be mindful of employee sentiment or potentially face an exodus and a flurry of employment law claims.

A proactive approach is essential. Employers who fail to make a decision about the future of the workplace now could find that home working becomes ‘custom and practice’. Then, insisting on a return to the office would require a variation of employment contract.

Involving employees with any decision is essential. Throughout this period of flux, employers must ensure they consult with employees to help them determine what works best for their organisation. A rigid approach is unlikely to be appropriate.

Employers may encounter situations where employees don’t want to return to the office. For some it may be the risk of contracting Covid-19 or passing it onto a vulnerable family member. Others may wish to continue home working having flexed their life around it.

When dealing with these situations, employers need to be mindful of potential discrimination claims. This was seen in the case of Bryan v Landmarc Support Services Ltd.

When Bryan’s request for home working to enable her to home school her son during the pandemic was turned down, she resigned and claimed for indirect sex discrimination. The tribunal upheld the claim, pointing to the fact that women do have greater childcare responsibilities than men, and the employer could have been more flexible to accommodate her needs.

Adopting a flexible or hybrid working model will invariably mean that employees will be working in different locations. As this could increase the risk of discrimination claims from employees who feel they’re missing out, there are some points for employers to consider, as follows:

Allocate work fairly and ensure those working from home are included in meetings and key decisions.
Consider all employees and use the performance reviews/appraisals when determining bonus awards and promotions.
Ensure home workers have the same access to training and support as their office-based colleagues.

Policies and procedures should be reviewed and updated where appropriate. It’s also important that these are clear and well communicated to avoid confusion.

A good example of this is the sickness absence policy around Covid-19. The government guidance states that those with symptoms should try to stay home where possible but, with the virus affecting people differently, it’s inevitable that some employees will be coming into the workplace with Covid-19.

This is exacerbated by the fact that tests are no longer free, nor are employees legally obliged to notify their employer if they have Covid-19. This can make it difficult to monitor Covid-19 cases in the workplace, risking potential outbreaks.

Where employers have clinically vulnerable employees or residents, or concerns about staffing if there’s an outbreak, they may want to consider putting measures in place to protect the workforce. These measures might include providing tests, allowing employees with mild or no symptoms to work from home, or providing them with sick pay where home working isn’t possible.

Given the extent of change taking place in the workspace, legal expenses insurance is an important part of an employer’s insurance programme. As well as offering financial protection in the event of a claim, it can also provide valuable tools to help an employer avoid legal disputes.

‘Legal expenses insurance is invaluable right now’
James Barclay
Head of legal protection sales and distribution

Long-Covid

An estimated 1.8 million people in the UK are experiencing symptoms of long-Covid according to the ONS (4). Symptoms vary but the most common include fatigue, shortness of breath, loss of sense of smell and difficulty concentrating.

Long-Covid also affects people in very different ways, with 19% of those reporting symptoms saying their ability to undertake day-to-day activities was limited.

Given this, the TUC has called for long-Covid to be recognised as a disability to prevent discrimination. To reduce the risk of claims, it is prudent for employers to err on the side of caution and treat long-Covid as a disability.

The following steps are recommended:

Ensure HR and line managers understand the potential impact of long-Covid and what adjustments could be made.
Be aware that long-Covid may attract protection from the Equality Act 2010.
Seek medical advice.
Consider flexible adjustments.
Keep open lines of communication with the workforce.

Acas has also published some useful guidance for employers and employees on how to deal with long-Covid (5).

‘There’s a lot for businesses to consider right now but it doesn’t have to be a legal quagmire. Before implementing any new HR processes or introducing new employment contracts, Allianz Legal Expense Insurance customers can take advantage of free legal advice. Chatting things through with a legal professional can help to ensure new polices are fair and compliant, and expensive legal disputes can be avoided.’

James Barclay
Head of legal protection sales and distribution

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